Ontario Court of Appeals spoke out; Charter Rights of Fathers are to be upheld – kind of.

Revolutionary developments on legal front in Ontario

Ontario Court of Appeals spoke out; Charter Rights of Fathers are to be upheld – kind of.

You just made it boys: From now on you will be permitted to speak to the judge before you are thrown in jail for not making enough money to meet your spousal support and child support obligations.

http://laws.justice.gc.ca/en/charter/#libertes

Schedule B

Constitution Act, 1982

Enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11, which came into force on April 17, 1982

PART I

Canadian charter of rights and freedoms

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Guarantee of Rights and Freedoms

Legal Rights

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention

10. Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor;

b) to retain and instruct counsel without delay and to be informed of that right; and

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Proceedings in criminal and penal matters

11. Any person charged with an offence has the right

a) to be informed without unreasonable delay of the specific offence;

b) to be tried within a reasonable time;

c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

e) not to be denied reasonable bail without just cause;

f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Treatment or punishment

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Self-crimination

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Interpreter

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

http://www.thestar.com/article/550551

Quote:

Deadbeat parents risk jail, court says

Appeal court rules that temporary support orders cannot be ignored, even before a full court hearing

Dec 09, 2008 04:30 AM

Tracey Tyler

Legal Affairs Reporter

Debtors’ prisons may generally be a thing of the past, but not when it comes to parents who stubbornly refuse to pay child support.

The Ontario Court of Appeal, in a 3-0 ruling, said judges have the power to order parents jailed for failing to comply with temporary support orders. Such support orders, made after someone has fallen behind in payments, but before a full court hearing into their ability to pay, are common.

In recent years, Ontario’s Family Responsibility Office has taken to asking judges to include clauses allowing for imprisonment in the event of non-compliance, said Michael Marra, a Guelph lawyer representing Andrew Fischer, whose case gave rise to the appeal.

In its ruling last Friday, meant to provide guidance to courts across Ontario, a three-judge appeal panel said imprisonment should be used only as a last resort.

Nonpayment alone doesn’t justify throwing parents behind bars, the court said, adding there must also be evidence a parent has shown a “wilful and deliberate disregard” for the court order.

An imprisonment clause is meant to “induce compliance,” not to punish a parent for failing to pay, Justices David Doherty, Eleanore Cronk and Russell Juriansz said in their decision. “The prospect of imprisonment hopefully focuses the payor’s mind on the importance of making the required payments.”

The Family Responsibility Office has been under fire for failing to reduce the amount of child support arrears in Ontario, currently around $1.45 billion, up slightly from five years ago. About 69 per cent of parents registered with the office are behind in payments. In 2006, Ombudsman Andre Marin said the office was “lackadaisical.”

Fischer had more than 50 per cent of his wages going to child support when he fell behind in payments in 2007. He’d resolved his differences with the Family Support Office by the time his case reached the appeal court, but Marra and Mark Alchuk, a lawyer for the province, asked the court to hear the case anyway.

They wanted it to resolve the question of whether judges have the power to include imprisonment for up to 180 days in the terms of a temporary support order.

As well, they asked the court to lay out steps judges should follow to ensure parents are treated fairly when these orders are made – often in busy courts, against parents who are unrepresented by lawyers.

Fischer was without a lawyer when a judge issued a temporary support order with an imprisonment clause; he also wasn’t permitted to address the court beforehand. But in future, parents must be given an opportunity to tell their side of the story, the appeal court said.

Earlier this year, a Superior Court judge said it wouldn’t be appropriate to include a clause allowing for Fischer’s imprisonment because there was a “real possibility” he could be jailed before a full hearing, without a lawyer having a chance to make submissions on his behalf.

Here is the link to actual decision: http://www.ontariocourts.on.ca/decisions/2008/december/…

Quote:

The appropriate procedure where the court proposes to impose a committal order

[27] Counsel advise that the payor is often unrepresented in default hearings. We will assume that the payor is unrepresented in considering the steps that a court should take to ensure that a payor is treated fairly before making a committal order as a term of a temporary order under s. 41(14). Counsel agree that, before making a committal order, the court must be satisfied that the payor is aware of the nature and effect of the proposed committal order and is given a fair opportunity to speak to the appropriateness of the imposition of a committal order in the circumstances.

[28] Counsel for the respondent favours a more formal process involving the taking of evidence under oath and giving the payor an opportunity to call evidence and cross-examine witnesses. Counsel for the Director submits that the level of formality suggested by counsel for the respondent is neither necessary, nor appropriate. He makes the point that temporary orders are made in the context of the adjournment of the default hearing. Counsel for the Director suggests, correctly in our view, that the formalities associated with a full hearing on the merits are not necessary when settling the terms of an adjournment.

[29] In our view, the courts that conduct default hearings are better positioned than this court to appreciate and address the demands of fairness in any given circumstance. However, a few broad observations may be helpful.

[30] The liberty of a payor who is potentially the subject of a committal order is put in jeopardy if the order is made. At a minimum, fairness in the context of a proposed order that could result in imprisonment requires that:

· the court explain to the payor the nature of the proposed committal order and the effect it could have on the payor’s liberty;

· the court explain to the payor why it is considering making the committal order; and

· the payor be given an opportunity to respond to the reasons offered by the court and to advise the court of any additional facts that may be relevant to the court’s decision to make the order.

[31] It is best left to the wisdom of individual judges in individual cases to decide exactly how to ensure that the payor is given the necessary information and the opportunity to put his or her position forward. We do, however, accept that the context in which the proposed order is being considered must be borne in mind in deciding what steps are necessary to ensure that the payor is treated fairly. Where the order in issue is a term of an adjournment sought by the payor, it would not be helpful to impose a procedural regime that would effectively result in adjournments to gather further information so that the terms of the adjournment could be settled. The common sense of the courts conducting these hearings will no doubt prevail.

[32] We also think that if the court concludes that a committal order is a proper term of a temporary order, the court should make the adjournment of the default proceedings as short as the circumstances reasonably permit, thereby hopefully reducing the risk of non-compliance.

IV. DISPOSITION

[33] The appeal is dismissed.

[34] If counsel cannot agree on costs, they may make written submissions of no more than five pages. Counsel for the respondent should serve and file his submissions within four days of the release of these reasons. Counsel for the appellant should serve and file within ten days of receipt of the respondent’s submissions.

RELEASED: “DD” “DEC 05 2008”

“Doherty J.A.”

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”

One just have to Google name of Michael Marra, a Guelph lawyer who allegedly “represented” Andrew Fischer to realise how “adversarial” is this system when the only lawyer willing to represent payor is a lawyer who helped to set up this FRO horror show.

Here is the link: http://www.thefrosolution.com/background-information-michael-marra.html

Quote:

Michael J. Marra LLB

The Family Responsibility Office Solution

Practice Background

Michael J. Marra has been a member of the Law Society of Upper Canada since his Call to the Ontario Bar in 1981. After his first 6 years practicing in a small general practice with an emphasis on Family Law and General Litigation, he was appointed as Regional Solicitor for the newly created Support and Custody Orders Enforcement Program (SCOE - now Family Responsibility Office – FRO ) branch of the Ministry of the Attorney General. He was actively involved in the implementation of this new and controversial program on a province wide basis and in the Hamilton centered region in particular.

He was responsible for the staff legal training while working on a team basis with the administrative managers and the introduction of the program to the judiciary, local bar, and public. He was responsible for all litigation in the Hamilton centered region which included St. Catherines, Welland and Niagara Falls, Cayuga, Simcoe, Brantford, Milton , Burlington, Oakville, Guelph, Kitchener, Cambridge and Hamilton Courts both at the Ontario Court and Superior Court level including all appeals……….

Next question; Who is Mark Powell Alchuk who was representing the Province of Ontario???

Here is a copy of a recent complaint that was filed with the Law Society of Upper Canada regarding his “professional” performance.

Quote:

Xxxxxxx Xxxxxxx

Xxxxx, Xxxx

August 1, 2008

Mr. Malcolm Heins

Chief Executive Officer

The Law Society of Upper Canada

Osgoode Hall, 130 Queen Street West

Toronto Ontario

M5H 2N6

Dear Mr. Heins,

I do not want to be a bore and take up even more of your time complaining to you about yet another crook and a criminal disguised as a lawyer and an “upstanding” member of the Law Society of Upper Canada but Mr. Mark Powell Alchuk in my personal opinion overdid it in his efforts on numerous occasions and precipitated two judicial complaints, wrongful arrest, and wrongful incarceration.

Mr. Mark Powell Alchuk, according to my limited knowledge, is working for Ontario Family Responsibility Office, that is located in Downsview, Ontario, and in his capacity as a lawyer acts as FRO’s legal representative.

Mr. Mark Powell Alchuk according to my limited knowledge is operating mainly at Brampton Ontario Courthouse.

I do not know how Legal Services of Ontario Family Responsibility Office are organised and therefore I am unable to determine to what extend Mr. Mark Powell Alchuk was and might still be involved in fabricating fraudulent statements of accounts that that he is knowingly, willingly and repeatedly presenting in Brampton Courthouse so I am going to skip an accusation that he is involved in manufacturing of evidence.

There is no shred of a doubt however that Mr. Mark Powell Alchuk is well aware of the fact that all statements of accounts that he and the other lawyers acting on behalf of FRO presented to the Court on January 16, 2007 and afterwards were in fact fraudulent as I have raised this issue with Mr. Alchuk personally during a conversation that I have had with him on January 16, 2007.

(In point 27 of my affidavit sworn on June 4, 2008, see copy, I have incorrectly identified Mr. Mark Powell Alchuk as Mr. Snell. In my court experience I have noticed that none of the lawyers acting for FRO ever introduce themselves or offer their business cards. This leads to confusion as the only way to find out their names is from court transcripts).

During my conversation with Mr. Alchuk I pointed out to him that whoever prepared my statement of account with FRO incorrectly used his or her poetic license and obviously misread Justice Fragomeni’s order. I have shown Mr. Mark Powell Alchuk that one of the items in Justice Fragomeni’s Court Order of July 16, 2002 called for one time payment of extraordinary expenses in amount $1050.00.

Than I pointed out to Mr. Alchuk that Justice Fragomeni’s Court Order called for $1680.00 a month payment of child support and $3000.00 a month payment of spousal support. Than I pointed out to Mr. Alchuk that amounts of my monthly payment obligation $5730.00 that were entered in my statement of account with FRO were the improper aggregation (lumping) of periodic payments and one time payment and as such were incorrect.

I also pointed out to Mr. Alchuk that I have never paid to FRO, or anybody else for that matter, an amount of $57300.00 (10 times $5730.00) that was entered allegedly on 10 of October of 2003 as a payment in my statement of account with FRO. Than I informed Mr. Alchuk that during the time in question I was paying my than wife directly a proper amount of $4680.00 a month and I told him point blank that FRO is cooking their books with intent to defraud provincial government by claiming that they have made collections that they in fact never did.

My revelations did not go very well with Mr. Alchuk who tried to convince me that their reading of Justice Fragomeni’s Court Order was right and my was wrong and that I have underpaid my ex-wife during that particular period.

In closing Mr. Alchuk stated that the point is moot because balance of FRO’s creative accounting after all of their creative entries was $0.0 so I should not be concerned as they are not trying to defraud me and this is the only thing that I should be concerned with. He stated bluntly that FRO creative accounting is none of my business.

During a court hearing that took place on March 16, 2008 Mr. Alchuk knowingly misled the Honourable Justice June Maresca on number of issues;

Mr. Mark Powell Alchuk knew that I was never served by the FRO with motion materials prior to court hearing on March 18, 2008. Mr. Mark Powell Alchuk knew or should have known that in view of the fact that I was not served according to the rules of family law that he could not legally proceed with his motion asking the court for 90 days of incarceration. Despite of that omission and gross violation of their obligation under rules of Family Law Mr. Mark Powell Alchuk went ahead with his motion instead of calling for a postponement in order to serve me properly.

Mr. Mark Powell Alchuk started his stellar performance with implying to the Court that I might have fled jurisdiction of the court, or fled Canada and this was the reason that I was not in Court on that day. He alleged that this is what he has heard from my ex-spouse. Whole notion was totally preposterous as FRO has my contact information; phone number as well as number of my cell phone. My ex-wife also has both numbers and it was a matter of making a simple phone call in order to determine my whereabouts (see transcript page 1). It is patently obvious to everybody that reads Mr. Alchuk’s statement that it was devised to blatantly mislead Justice Maresca.

When Mr. Mark Powell Alchuk was asked specifically Justice Maresca if he served me by mail with motion materials he admitted that he did not contradicting his earlier claim as to reason of my absence in the courtroom. (see transcript page 2).

When Mr. Mark Powell Alchuk was specifically asked by Justice June Maresca about the legality of what he was asking the court to do, Mr. Alchuk repeatedly misled Justice June Maresca and in his efforts to convince Justice Maresca of legality of his pleadings he went as far as quoting Justice Maresca some undefined piece of legislation that seemed to have been unrelated to proceeding that he was participating in. (see copy of transcript page 3).

This kind of behaviour by Mr. Mark Powell Alchuk at Brampton Courthouse on March 18, 2008 shows his complete and utter contempt for the Ontario Court of Justice.

During a court hearing on June 10, 2008 in front of Madam Justice Juliet C. Baldock “distinguished member of Ontario Bar” Mr. Mark Powell Alchuk did an Encore.

Mr. Alchuk started his stellar performance once again with misleading Justice Baldock as to the reason why I was not present in court on March 18, 2008. He also misled Justice Baldock as to real reasons why Justice Maresca’s court order was not carried out by claiming that it was a clerical error and not an attempt to mitigate miscarriage of justice that was precipitated by his contemptuous behaviour in front of Justice Maresca on previous occasion. (See copy of transcript page 2).

My attempts to set the record straight regarding FRO’s intentional neglect to serve me with notice and motion materials were completely ignored. (See copy of transcript page 3).

In the end as a result of Mr. Alchuk’s lies and distortions was wrongfully sentenced to 90 days in jail and I was wrongfully incarcerated at Maplehurst Correctional Facility.

It is quite obvious that Mr. Mark Powell Alchuk actions and inactions that I have presented above present multiple instanced of gross professional misconduct and complete and utter contempt for Ontario court system that are completely incompatible with his function of an officer of the Court.

Sincerely,

xxxxx xxxxxxxx

Cc. ……………. Sent by fax to:. 416-947-5263

Courts of Justice Act

ONTARIO REGULATION 114/99

FAMILY LAW RULES

http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htm

RULE 30: DEFAULT HEARING

ISSUING NOTICE OF DEFAULT HEARING

CONDITIONAL IMPRISONMENT

( The court may make an order under clause 41 (10) (h) or (i) of the Family Responsibility and Support Arrears Enforcement Act, 1996, suspending the payor’s imprisonment on appropriate conditions. O. Reg. 114/99, r. 30 (; O. Reg. 76/06, s. 8 (1).

ISSUING WARRANT OF COMMITTAL

(9) If the recipient, on a motion with special service (subrule 6 (3)) on the payor, states by affidavit (or by oral evidence, with the court’s permission) that the payor has not obeyed a condition that was imposed under subrule (, the court may issue a warrant of committal against the payor, subject to subsection 41 (15) (power to change order) of the Family Responsibility and Support Arrears Enforcement Act, 1996. O. Reg. 114/99, r. 30 (9); O. Reg. 76/06, s. 8 (2).

Here you have it folks; two lawyers acting for FRO file an Appeal on a moot case in order to get an assurance from Ontario Court of Appeals that it is OK for Ontario judges to throw in jail people who cannot find or afford a lawyer while they are getting ripped by Family Courts and driven destitute by Family Responsibility Office.

By turning Ontario jails into debtor prisons McGuinty and Bentley will be able to point to increased incarceration rates as a way to a prove to Harper and Nicholson that they are pulling their weight in federal efforts to combat violent crime in Ontario.

Best part of it is that Andrew Fischer whose salary gets already garnished at more than 50% will have to pay legal costs of that legal fiasco.