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Legal Ease
Legal Ease, Lawyer
Category: Canada Family Law
Satisfied Customers: 100410
Experience:  I am a practicing lawyer and have also been an online professional for 5 years.
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I started a case over custody in BC provincial court and

Customer Question

I started a case over custody in BC provincial court and have an interim consent order from the first hearing, since then my ex and her lawyer have filed a case for custody (and spousal, child support & division of assets) in BC Supreme Court. I want to keep the custody/child access case in provincial. Would filing a supreme court form F78 "JURISDICTIONAL RESPONSE" be the right procedure to dispute this overlap? Are there any good reasons or precedents I can use to backup staying in provincial?
Submitted: 1 year ago.
Category: Canada Family Law
Expert:  Legal Ease replied 1 year ago.

You will not be able to succeed.

Because you were going to deal with a division of assets you cannot deal with provincial court. And there's no way that two court cases can go on to the same issues at the same time. That is not how family law works. You're going to end up having to go to Superior Court to deal with all of the issues.

I'm very sorry about that.

Customer: replied 1 year ago.
I understand only supreme court can deal with assets. Why can't the custody be kept in provincial court and the remaining issues go to supreme court? Duty counsel said once there is an order in place judges don't like taking over open cases and suggested disputing jurisdiction since the issue was already started in provincial? Or is it common place the supreme always trumpts? The next hearing is in provincial, so I expect her lawyer will ask to dismiss the case, is there any argument I can make?
Customer: replied 1 year ago.
Expert:  Legal Ease replied 1 year ago.

I don't know of any argument you can make because the system is set up so that all of the issues in family law matters are heard together.

That is why for example you could not sue your spouse if your spouse owes you money outside of family court. Even if the money is owed has nothing to do with the division of assets you still could not sue your spouse in any other court.

So I can't see any way that you will succeed unfortunately.

Customer: replied 1 year ago.
Interesting, I did not know all family law matters had to be heard together, can you provide a reference link in the BC family law act that says this?Will the supreme court case look at and take into consideration the previous affidavits submitted and ruling from provincial court for custody as the matter goes forward or is changing courts like starting over again?
Customer: replied 1 year ago.
Also I couldn't really find a way to view your profile to verify, can you indicate your experience practicing family law in British Columbia?
Expert:  Legal Ease replied 1 year ago.

I am a family lawyer in Ontario. There is one lawyer from BC on this site but I've not seen him online is some time. But I can see after reading quite a bit that this is more complicated than I thought with your new Act so I am going to opt out as I cannot answer your question adequately.

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