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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 06-11-2014, 03:03 AM
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Default Appeal Orders not binding?!

Hello all.

I need a consensus on the matter of an Appeal decision that has been uniquely re-interpreted by the CS recpient. As a self rep. Something clrealy does not jive from what I have been told and what is logical and rational...

A temporary / interim CS order was ordered. Later, this temp/interim Order was amended and then made Final at the lower courts (OCJ) without consent.

This was successfully Appealed at the Higher courts (Superior) which "set aside" the lower courts interim order made final.

The CS recipient is not happy and wants the old interim Order (read higher $upport) restored without going back to court to replace the interim order that was made final and set aside by the Appeal.

Not wanting to pretend that I am a Lawyer, I consult one who made a full analysis of the Appeal and concluded that there are no more orders as everything (temp and final OCJ orders) is set aside. Then I consulted a VERY knowledgeable family law court manager who informs me... "the OCJ orders are dead..."

Still the CS recipient's Lawyer are claiming that the Appeal is not binding on temporary interim orders even if made final and set aside. They claim that Appeal only set aside the final OCJ order not the interim order that was made final and that the original interim CS order is therefore "automatically reinstated" as if it was never made final.

I am not making this up... I couldnt even if tried. Are they pulling another quick one on a self rep??

If going by the Rules only, can someone, anyone of the experts please opine or better yet provide some form of concrete evidence that the Appeal IS binding on any OCJ temp orders made final and set aside.

I need some assistance because they are forcing me to bring a motion to obtain another order to enforce the Appeal order that they beLIEve is non binding.



TIA
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Old 06-11-2014, 06:44 AM
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I don't actually know the answer but remember your exs lawyer works for her not you. He will tell you whatever is best for his client.

It was my understanding that once a new order was made all past orders where null and void. I would think that if the exs lawyer wants to now reinstate an old order they be the ones to file a motion. I wouldn't do any of the leg work for them.

Even though there is no order I hope you are still paying CS.
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Old 06-11-2014, 07:14 AM
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My understaning:

"New" orders amend previous order ITEMS if explicit said so. For instance, the order dated xxx is amended as follows...

Or an order can replace a previous order in its entirety.

Write the lawyer a professional letter and serve him asking him to provide the legal reference/mechanism that supports exactly what he is advising you. Typically, if they are pulling a fast one they will reply with corrected info or not respond at all. Clearly state what he advised you and that you have full intentions of complying with the law (or something to that affect) but need him to provide you the legal reference/mechanism for this.

Lastly, if it is a CS issue, why aren't you registered with FRO? Their legal department will sort out which Order is to be used...
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Old 06-11-2014, 11:13 AM
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Appeals I believe are generally retroactive to the time of the decision you are appealing.

Anything can be appealed however sometimes you might need "Leave to Appeal"

Once an appeal is accepted, it is the law.

What I would do here is have long discussions with your ex's lawyer about it until you deplete ex's money so in the future they dont waste your time.
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Old 06-11-2014, 07:13 PM
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Thanks I will do just that. For one, I would like some kind of record or some way to document what is being passed off as legit. I called the society for assistance and was referred to DLS. Just off the cuff speaking on the phone, the Lawyer pointed me to Rule 38

"RULE 38: APPEALS

STAY BY ORDER OF COURT

(35) A Temporary or Final order may be stayed on any conditions that the court considers appropriate,

(a) by an order of the court that made the order;

(b) by an order of the Superior Court of Justice. O. Reg. 89/04, s. 13."

Does this makes more sense as far as interim orders made final and then set aside?


TIA
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Old 06-12-2014, 08:59 AM
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Appeal Courts > everything else
What they say goes - unless it gets appealed to the supreme court.

If appeal courts are not able/willing to overturn they don't do it - I just went through an appeal (in Quebec though) and they only overturn things in the case that if they didn't that case can further be used for precedent they don't like in the future.
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