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CIVIL PROCEDURE - Parties - Standing

Tuesday, March 19, 2019 @ 8:48 AM  


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Application by the defendant for an order dismissing the plaintiff’s claim on the grounds that it was a collateral attack. The plaintiff’s claim was a constitutional challenge under sections 7 and 15 of the Charter. She sought to strike provisions of the Divorce Act, Family Law Act, Supreme Court Family Rules, and the Federal Child Support Guidelines. In 2015, the plaintiff obtained a support order for her 20-year-old child, retroactive to the child’s birth. The father’s appeal was allowed, and the retroactive amount was substantially reduced to the date of the plaintiff’s application for support in 2013. The plaintiff’s appeal to the Court of Appeal and her application for leave to appeal to the Supreme Court of Canada were dismissed. The plaintiff had not raised Charter issues in the previous proceeding. She confirmed the objective of her current claim was to change the law so that child support was retroactive to a child’s birth in all cases.

HELD: Application allowed. The provisions challenged by the plaintiff conferred discretion on the court and did not mandate a particular decision. The plaintiff’s claim was a collateral attack on the previous family law proceeding. The claim sought to reverse the Court of Appeal judgment in the previous proceeding. The plaintiff could have raised her Charter issues in the previous proceeding. Considerable harm to the repute of justice would occur if the plaintiff’s claim proceeded. The plaintiff did not have private or public interest standing to proceed with the claim. Some of the specific provisions challenged did not apply to the plaintiff.

M.K. v. British Columbia (Attorney General), [2019] B.C.J. No. 191, British Columbia Supreme Court, J. Steeves J., February 13, 2019. Digest No. TLD-March182019005