How to correct a consnet order that you did not consent to.

[rwm1273]

I have a friend who's lawyer went to court and consented to set his child support at an income he does not earn. The lawyer did not inform him of the court date, nor have him do an affidavit.

After the court appearance, the lawyer called him up and told him what his support payments is going to be, and when he started to ask how they got to court, the lawyer quit.

Now my friend wants to appeal, but since it was a consent order, there is no real grounds to appeal, as there was no faults with law that the judge made.

Further to this, his support is for 100% table amount, yet they share the kids 50%.

Is there any case law that can be used to argue the order?

[LostFather]

I have a friend who's lawyer went to court and consented to set his child support at an income he does not earn. The lawyer did not inform him of the court date, nor have him do an affidavit.

After the court appearance, the lawyer called him up and told him what his support payments is going to be, and when he started to ask how they got to court, the lawyer quit.

Now my friend wants to appeal, but since it was a consent order, there is no real grounds to appeal, as there was no faults with law that the judge made.

Further to this, his support is for 100% table amount, yet they share the kids 50%.

Is there any case law that can be used to argue the order?

If the facts are what you've laid out, I would tell him to contact Law Society of upper Canada and file a complaint, I would also tell him to go to the court house that the order is out of and contact duty council and consult there to see what he can do, if nothing happens there, then hire another lawyer to get it figured out and then go after the other lawyer, but I would focus on the current order first.

[rwm1273]

He already has made a complaint to the law society, and has started an appeal.

I have explained that I don't think he has much chance to win the appeal, as the judge did not do anything other than approve the order that the lawyers agreed upon. So is there any case law that he can use for the appeal to argue that his lawyer did not act in his best interest.

[LostFather]

He already has made a complaint to the law society, and has started an appeal.

I have explained that I don't think he has much chance to win the appeal, as the judge did not do anything other than approve the order that the lawyers agreed upon. So is there any case law that he can use for the appeal to argue that his lawyer did not act in his best interest.

So sue his lawyer, the lawyer can pay the CS.

[rwm1273]

I wish it was that simple.

He may sue his lawyer, but he has no money to fight, and until he can sort out the support order, his income is already spoken for.

[representingself]

Sounds like BS to me....

No Lawyer would voluntarily consent to a guideline child support amount, based on a bogus income, in a shared custody situation, when his client isn't even aware of the court date... and then resign without cause or explaination.

Where did the "Lawyer" get the income amount that the "consent" was based on?? Did he just pick a random number out of his ass and go with it?

BTW.. how was there "consent" when the party was not in the court house to provide same??

Is there an existing order for custody/access, which specifies 50/50?

If the story is true... (which common sense tells me it is NOT)... tell your "friend" to File a Motion to Change, citing a material change in income, as his CS payments do not accurately reflect his income...or the custody arrangements.

Make sure full financial disclosure is provided, to avoid any confusion about the amount of CS that is due.

Then tell him to pay the child support amount that is required, based on his actual income and corresponding offset, until things get settled in court.... otherwise he will be paying hundreds if not thousands of dollars in overpayments that he will likely never get back...

Continue with the complaint with the LSUC, and file a civil suit in small claims court against the "Lawyer" for specified damages (legal costs for both family and civil actions - less than $25,000).... he can represent himself in small claims or hire a Paralegal.

Good luck with that!!

[rwm1273]

Well I'm not sure how to take the reply, but at least there is some advice.

I spoke with him earlier today. I have more information about his issues.

He is getting his file from this lawyer on monday, and there may be some info there that would give some insite as to how the application got made in the first place.

I did not say the income was bogus, I said the income was not what he earns. The financial info was not picked from his ass. He provided his lawyer with his last three years of income, and for some reason the two lawyers felt they should use his best 3 months of earnings instead of averaging. Since he has been in Canada he has been teaching as a substitute, and as such has not had steady work.

Buddy's ex has no income, as she has recently arrived here in Canada. They were never married, and have 3 kids together. She wants to do the legal stuff here, because the laws are better for her here, he is here because his father is dying of cancer. He has been here just over a year and has had 2 of their kids with him since he came. He intends to return to other country once his father passes on. She has been here since april, and has brought the other child with her here. Since the relationship has failed, she started the action to get support from him, which his lawyer consented to on October 14th.

They had gone to mediation in August and drafted a separation agreement that set the 50/50 parenting. Since then she has been given a lawyer to do immigration, and a lawyer to do family law issues, and she no longer wants to follow the separation agreement.

They are in Alberta, and his complaint has been to the Alberta Law Society. He still thinks he should do the appeal, but he is going to do another order to to get the separation agreement made into an order.

He also said that when he discussed the support order, his lawyer informed him that the other side also wanted to get spousal support and sole custody, and the lawyers agreed to a court date in mid december, and his lawyer told him that it was good that he was able to put that hearing off for as long as he did.

[standing on the sidelines]

have to tell you when I first read your opening post I felt like representing self, it seemed like total BS. When you added the more details it made a bit more sense. Sounds like you buddys lawyer wasn't even working for his client. He has two of the kids and she has only one and she wants CS?? It is women like that that give the rest of us bad names.

How can they do 50/50 parenting when it sounds like once his father passes, he is going to leave the country and she seems like she is going to stay??

[dadtotheend]

More crap from a clown.

The lawyer does not have authority to consent to this order. The client has to sign off on an order on consent.

[rwm1273]

Thanks DTTE you really have a chip on your shoulders, but atleast you did make a good point about the lawyer. Too bad everything else you post has to be so childish. Grow up.

My first post was only after getting a call from another guy from our support group here asking if I knew how to help this individual, and then a very short conversation with the individual. Yesturday I got more information. But as I have never seen anyone ever win an appeal from a consent order, I posted the question.

So is there any way he can win an appeal and have this order thrown out? I don't know how he can win an appeal, as the judge did not make a ruling, only singed the consent order the lawyers presented.

As for if he stays in Canada, I doubt it. He still has his home and business overseas. the agreement they had when he first came over was that the kids would go to school for a year or two, until his father passes, and then they would return over seas. It appears that his dad will pass very soon.

It is his ex who now wants to stay here, as it appears that she thinks she can get more from our courts than she would back home. She has a masters in psychology and a nursing license from her home country, but has never worked. She has been living off of their money in their bank account from over seas, but it sounds like she is claiming she has no money, and crying the poor victim card.

When she came they lived together in the same home until she threatened him with a knife. The police asked her to leave, but did not charge her. This was in August. She initially lived with his mother, and has since moved to another location.

Is it possible to claim that Canadian courts don't have jurisdiction given that they still maintain residency over seas, and intend to return there?(at least he intends to)

[dadtotheend]

Pretty much what this bully thought. You heard it from a friend who heard from a friend who heard it from another... (YouTube - REO Speedwagon - Take it on the Run) and you have it wrong.

The friend of a friend has to consent to the order not his lawyer.

[rwm1273]

I think we all understand that, but what the question is is how to overturn that order that was gotten. Appeal or make a new application?

This is from the government website:

If you want to change your Provincial Court order because you missed the hearing, then you can apply, within 30 days of the order, for a rehearing. If you want to change your Provincial Court order just because you are not happy with it, then the proper procedure is to appeal to the Court of Queen’s Bench. You have 30 days from the date the order was signed, entered and served to do this. You should seek the advice of a lawyer before you take any steps towards filing an appeal. If you want to change your Provincial Court order because something new has come up or because your situation has changed, then you can do a variation application at the Provincial Court. All of the forms you will need are available in the Family Law Kits on the Family Law Information Centre website

From my understanding and experience the appeal will fail because the judge did not error. Making another application may fail because there has been no material change since the order.

Is there any case law that would help him change this order or force it to be reheard?

My ex and I both contested an order that our lawyers had made as a consent order. Neither of us agreed to the material in the order, (not same issues but same order)and when we did finally get a judge to hear the matter, he refused to change it, because he claimed it was by consent and signed by a different judge.

[rwm1273]

Update.

Buddy went to court today for the appeal, and had his support reduced to half of what it was, based on the fact he shares custody.