Monthly Archives: March 2013

Jane Doe’s Day in Small Claims Court

Ignorance of the law is no excuse. This point was made recently in a small claims court on a motion to set aside a default judgment. While a small claims court seems to work in an informal nature (presumably because of the number of people who are self-represented), many believe that a judge will automatically side with the party who pleads the most compassionate grounds. However, completely ignoring one’s obligation under the law was shown not to gain any sympathy with the judge in a recent dismissal of a motion to set aside judgment.

 

The Story

 

Jane Doe was given a file to take over from her employer three days before appearing at a motion to set aside a default judgment. The default occurred when the respondents failed to file an answer or defence. The judgment seemed routine and the pending result appeared simple enough. Through her research on the rules of the small claims court and the threshold to set aside a judgment, Jane Doe thought that the respondents had no legal argument and the motion would be dismissed in her favour. However, many in the office told her that she would most likely lose as the respondent cited many compassionate grounds. They told her that the judges in small claims court “feel bad” for un-represented parties and more likely than not, allow them an opportunity to present a suitable defence.  Having never appeared before a judge, Jane Doe believed the predictions and thought her appearance before the court was doomed.

 

The Law

 

Rule 11.06 of the Courts of Justice Act provides that in order to set aside the noting of default judgment against a party, the motion to set aside must first satisfy that a meritorious defence exists; secondly, that there is a reasonable explanation as to why the party defaulted; and lastly, that the motion is made as soon as is reasonably practicable.

 

Result/Discussion

 

A morning in small claims court, as daunting as it seemed, was not as arduous as Jane Doe thought. The Judge, although showing sympathy for the opposing side, recognized that even the most compassionate grounds holds no weight if no defence exists. The result was simple; the respondents failed to file a meritorious defence or even respond within the 20-day time frame. The fact that they had some personal issues, although a factor to consider, does not hold any weight when it is the only defence they had. Many are mistaken with the use of compassion in the court system. Compassion is a tool used as a mitigating factor that cannot stand on its own. Self-represented parties are still required to read court documents closely and adhere to the deadlines and requirements. The judge even acknowledged that if one cannot give a reasonable explanation as to why they ignored important court documents, a strong defence coupled with compassionate grounds must exist. This is where the court is lax with the rules in the “informal” way Jane Doe was told about prior to the appearance.

 

Conclusion

 

This story is an example of adherence to the laws, with perhaps a fragment of a benefit of the doubt given to self-represented parties. While the small claims courts are “informal” in a sense, the judges still have a duty to adhere to the law and promote the administration of justice and this is exemplified through Jane Doe’s experience.

 

 

The Complexity of Setting Spousal and Child Support

****NOTICE: This is not legal advice nor is it intended to be relied upon as such, it is merely for conversational and anecdotal purposes. Please contact a legal professional before taking any steps and do not rely on this material for legal purposes.

The Complexity of Setting Spousal and Child Support

In examining the Divorce Act and the Federal Child Support Guidelines, at first blush one might think that the grounds for setting spousal or child support seem straightforward enough. However, every relationship and marriage is different; the factors vary from case to case and as such judicial discretion in such matters is essential. With the necessity of such discretion, case law becomes more and more important and a close professional analysis into the intricacies of these laws is clearly necessitated by the complexity and nature of such matters.

In determining quantum for spousal support, need is an important factor, however, case law mandates that in assessing the specificities of the relationship, contribution to the marriage is essential to determining need. The law recognizes that some create their own need and will not award any type of support for such creation. This trend coincides with the duty of promotion of economic self-sufficiency, as per under the Divorce Act.

The grounds for setting child support is set out in the Guidelines, however case law puts forth that a deviation may be warranted depending on certain factors. The condition/means of the parents and the needs of the child are among the most important factors that judges consider. However, in proving undue hardship on either side of the case, although a high threshold to surpass, can drastically change the amount of child support.

A child support or spousal support order is not calcified. That means that they can be changed. As such, a variation may be necessary when circumstances change. It is essential to prove a “material change” in circumstances in order to get such a variation; any change, like a move or change in careers is not likely to be considered “material”.

Generally, the legalities and jurisprudence in this particular area are full of complex analyses and judicial discretion. Nonetheless, support quantum warrants further discretion and examination because of the nature of the tribulations involved. In order to ensure fairness in every case, we need variability in the law, as the fact-specific nature of the field demands it.

Olivia O.

Right to Counsel in Canada

Right to Counsel in Canada:

A Recent Occurrence 

AdamoPaniccia

The Back story:

Recently a colleague was confronted with the issue of RIGHT TO COUNSEL at a local Police Division.

She was informed that she could speak to her client, but only by phone, not in person because if she did she would automatically become a witness for the Crown. As the situation did not warrant “making a scene”, she spoke to her client briefly on the front desk phone, merely to console him. As expected, she advised him not to speak as to his matter and told him she would see him the following morning at Court (at his show cause).

However, the wheels were turning, and her anger and self doubt kicked….bitter confusion.

What was the well intentioned officer trying to convey to her? Was the cop confused? Was she just bamboozled?

Canadian Law at the issue of right to counsel during Interrogation:

The Supreme Court of Canada ruled in October of 2012, by a weak majority, that while suspects have a right to consult a lawyer and to be informed of that right at arrest and detention, they don’t have a right to legal counsel while they are being interrogated. Of course, this was strongly divergent from the point of view held by the minority.

I surmise that as a television owning and watching nation, many of the local Canadian populace and hence jurisdiction are thinking: “what about CSI?! I LOVE THAT SHOW! On CSI the lawyer is glued to the client at all stages!”

As a former Public Defender and actively licensed member of two bars in the USA, I hate to inform my Canadian people of the reality that such US style Miranda Rights have not been “ imported”; and in fact are not mirrored in our legal history and constructs north of the 49th parallel. Similar …. but different.

In Canada, your instant right to counsel once arrested or detained (as well as habeas corpus) is guaranteed under Section Ten of the Canadian Charter of Rights and Freedoms.

Oddly enough, a right to counsel during a criminal trial (except in enumerated situations) is not a guarantee!!

Logically, if you are still reading my blog, your next question should be:

Was the client being interrogated?

No, he was not. He had been processed, questioned (interrogated) and by the time colleague got there, he was sitting in his cell. There was nothing further she could do for him, and the phone conversation with him was more than sufficient given the situation. He was told to sit tight, not speak on the matter and that we would see each other in the morning.

To be fair, I believe that in a safe and just society, the police are an indelible necessity for the maintenance of peace and order. Further, they do have a very trying job, and most do perform their task with honour, pride and sincerity. And yes, as it is human to err at times, we must not forget that our keepers of the peace are only human.

As such with that disclaimer put forth, I address what occurred on said day.

What happened at the police station?

The warning offered by the officer despite his best intentions, was in all likeliness misguided.

It is held in Canada that if a lawyer manages to become present at a police questioning, then the lawyer might become a witness at trial.  This is because a statement from an accused must be proven and must be proven to be volitional, as such rendering all parties present at the taking of the statement potential witnesses. Yes, even counsel.

However, this was not so at the client’s situation. He was in police custody and obviously had a right to speak with his counsel immediately upon detention. Further, the conversation with him rightfully should be a private one.

 Disposition:

You can insist on speaking with your client as soon as he/she is detained. You can ask, but are not guaranteed access to your client while being interviewed/interrogated.

Police sometimes make mistakes, and it is part of the Solicitor’s job to assess those situations and make prudent decisions that will best serve the client.

And so the next logical question becomes: Can one argue that the police interfered (or at least attempted) with the accused’s right to counsel? Remedies in such a situation? 

TO BE CONTINUED …..    

Does my child have a right to be heard in court?

VOICE OF THE CHILD IN COURT:

DO MY CHILD’S WISHES MATTER?

 

LAWYER AT LARGE:

AdamoPaniccia

Recently Johnny Q. Lawyer was in court and attempted to make an argument on behalf of a parent/party as to THE BEST WISHES OF THE CHILD.

In the past, at a Court House (Court of Justice) located south of Steeles (near Yonge St.), Johnny had been successful in making such an argument by using the child as a witness via an intimate and private (yet, recorded)interview with the twelve year old child by the presiding  judge.

However, other judges in a more northerly venue (Superior Court) did not share in the concomitant jurisprudence of Johnny and the court of Justice.

In fact, it has been my personal experience, as well as other colleagues that bringing the child at issue to court in custody and access cases will LIKELY BE FROWNED UPON north of Steeles.

I have also been touted as a forward thinking friend of the court that is propagating the PRIMARY OBJECTIVE, as I facilitate the courts in enabling them to deal with these cases justly. The child in such matters is the key concern, as we strive to attain and preserve the “best interests of the child”. In speaking to a child, direct evidence is elicited and a chance to interact with the child and get a real sense of what is going on with the child should unfold. There are alternatives, but often times they being used as well when even when not quite required or merited, and they often carry a hefty cost in terms of legal fees and time.

So what is the deal?  Is Johnny Q. a maverick in the legal world? Is Johnny Q. just looking at matters from a different perspective? Johnny Q. does hold a degree in psychology, and has extensive professional experience working with young people. But is Johnny Q. out to lunch?

As this is merely a compilation of my opinions and experience, and not a formal authority on the law that I compile herein; I trust you will enjoy my discussion on the present status quo at Ontario Law for entertainment purposes only….. based on various mixed resources including the highly regarded authors and authorities Berend Hovious and the Paynes:

AGE OF CHILD AS A FACTOR:

It is held at the statutes several provinces, explicitly, that the wishes of a child are a relevant factor when making decisions that affect the best interests of the child. This however, is not expressed in the Divorce Act.

Despite the Divorce Act’s lack of an express provision dealing with this issue, it is nonetheless  widely held judicial practice that as children get older, the significance of their wishes increases with their actual and cognitive age. Generally the breakdown of age relevance is as follows:

Under 9 years à not much reliance.

10 – 13 years  à important but not decisive.

Over 14 years à cannot ignore, futile.

16 years and up no point à  unusual to grant order.

AVAILABLE OPTIONS:

Note at CLRA CHILD @24, 64 to have “views and preferences” addressed/considered.  The method however, is really left to the Judge’s discretion .

Parents do have options when trying to bring their child’s wishes before a court. A parent or the parent’s lawyer may submit an AFFIDAVIT from the child for a motion.

A child can even offer VIVA VOCE EVIDENCE.

Third party witnesses to the child may offer HEARSAY evidence on behalf of the child’s stated desire. This requires: necessity (child appropriate witness) andreliability (statement made to more than one person) for the threshold be met.Khan-Smith Test

An alternative, one that is often less emotionally taxing, is to hold a PRIVATE INTERVIEW in chambers or in camera. These are increasing in frequency. The positive aspect to this correlates to more children having their voice and wishes heard. This can occur despite a parent’s objection or disapproval; despite this some judges remain averse to such strategy, despite the benefit of potentially avoiding assessments and investigations.

An ASSESSMENT or INVESTIGATION may be ordered if there are issues as to needs of a child or issues as to the ability of the parent to meet the needs of the child.

Children’s Lawyer Investigations are authorized at CJA S.112 (when mere common sense is not sufficient in order to proceed).

Assessments are dealt with at CLRA  S.30  – Where clinical issues exist that require an expert.

Recall that as the child is the focal point, the best interest of the child is theDETERMINATIVE CRITERION.

 

WISHES OF THE YOUNG CHILD IN COURT:

 

2 BASIC ISSUES:

(1) SIGNIFICANCE ATTCHED TO WISHES OF CHILD?

(2) HOW WISHES TO BE ASCERTAINED?

STEFUREAK v CHAMBERS (2004).

When dealing with particularly Young Children – 

In assessing THE BEST INTEREST, the court is required to consider the view/preference of the child…that is , where it can be reasonably ascertained. 4 ways/methods:

1)      Evidence of trained professionals/psychologists.

2)      Evidence of parties, lay witness at out of court statements of child.

3)      Judge interview child in chambers

4)      Permit child testify.

Baring in mind once again, with very young children ascertaining the view and preference of the child can be very difficult and it is a duty that lies with the court to do so. Sometimes common sense and fairness may suffice in order to determine such.

In Court Testimony of Young Children:

Not allowing child speak may cause to feel alienated, angry and fearful. … there is still a reluctance to allowing young children as witness.  OBSTACLES TO ALLOWING YOUNG CHILDREN:

-          BEING ABLE TO CLEARLY ARTICULATE TO A PARTICULAR CHILD THE NEED FOR HIS/HER TESTIMONY

-          LACK OF TRAINING IN ASKING THE QUESTIONS BY MOST COURT PROFESSIONALS.

Summary:

  1. Hearsay – necessity and threshold.
  2. Judge may deny to call child as witness or even to perform in chambers/in camera as a lack of training in asking developmentally appropriate questions is limiting.
  3. Section 112 and 30 – only if evidence (including preference of child) insufficient.

 

Other cases to peruse –

Alexander – 1986: near adult years, capable of responsible thought.

O’Conell – 1998 : once teen, custody must reasonably conform to wishes.

Sider – (2004): 12 year old had influence at wishes

Boukema – 1997: if judge fear manipulation and damage to relation with parent may result, then less likely follow wishes of child…here was 11 year old.

Note: Child’s statement directly to a judge are usually the most reliable, as allows for a judge to observe and assess.