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  • Court Next Week

    History:
    After 5 years, I was able to obtain income information from X. (It contains self employment income that shows a loss, as well, bringing down his line 150 amount, but this is a whole other issue).

    Based on the 2011 tax info (line 150), I asked X via registered mail to increase CS. This brings monthly amount up by over $200/month.

    He refused to change the support without a court order.

    I filed Motion to Change. A court date was set at time of filing. Unfortunately, service was not completed until 28 days before the court date. Not the required 30 days for respondent to answer.

    I attended the first appearance, X asked duty council to ask for adjournment as he was unable to attend on the first date.

    The judge wrote the following on the Endorsement, "Respondent still has time to answer. (Duty Council) believes he is attempting to retain council. Adjourn to (date) for uncontested hearing or case conference."

    I have not received any response/answer to my Motion to Change. I was advised to file an Affidavit for Uncontested Trial, and did so.

    How will I know if this appearance next week will be a CC? I have not filed any CC notices or briefs. I thought I knew what was going on, now I don't know.

    Thanks for your help.

  • #2
    Update: X did not attend court again. Judge not pleased (asked duty council if there was some reason why respondent feels he doesn't have to attend).

    X asked duty council to speak for him to say he is trying to make an appointment to see a lawyer (he called duty council yesterday). He was served 64 days ago. He has not answered my motion or responded in any way still. His new appointment is mid-June.

    Judge asked me a few questions about his employment. Judge granted temporary order for the increase in CS I asked for effective today. She made clear it was temporary not final.

    Adjourned until mid-July for CC or uncontested (again).

    On way out, the duty council asked me if I wasn't asking for retro CS (X has NEVER paid proper table amount for his income - 5 years). I said no, I just want proper amount now, not for the last 5 years. He said "I'm just trying to figure out what this guy's doing! I have to call him now to let him know what's going on but I can't figure out what he's doing. He didnt want to have to pay for one lawyer and now he's going to have to pay for both!" I said he's stalling, I just don't know why.

    Thoughts? Thanks!

    Comment


    • #3
      You are trying to make sense of stupid. You can't. Stop trying.

      CS is the right of the child. Simply exchange NOA each year prior to June 1. If your order does not have this clause in it, then make sure you get it put in.

      Then, if he doesn't provide them to you, you send him a polite email by June 15th and give him until June 30th to respond.

      If that gets ignored, you send him a registered letter, signature required on Jul 1 and ask him to respond within 10 days of receipt.

      On day 11, you file a motion with the court for him to provide his NOA and tax information, for any adjust in CS as required, and for costs.

      Rinse and repeat. Eventually the judges will get tired of him not providing his financials and will start whacking him for costs.

      Adjustment of CS should be a stupidly easy thing. Exchange NOA, compare against tables, file motion on consent for new amounts, judge rubber stamps it, file with maintenance enforcement (FRO) if applicable...done.

      Comment


      • #4
        Originally posted by Qrious View Post
        He said "I'm just trying to figure out what this guy's doing! I have to call him now to let him know what's going on but I can't figure out what he's doing. He didnt want to have to pay for one lawyer and now he's going to have to pay for both!" I said he's stalling, I just don't know why.

        Thoughts? Thanks!
        Question. Was the "duty counsel" who said this to you representing you or the other party?

        Good Luck!
        Tayken

        Comment


        • #5
          Originally posted by NBDad View Post
          You are trying to make sense of stupid. You can't. Stop trying.

          Adjustment of CS should be a stupidly easy thing. Exchange NOA, compare against tables, file motion on consent for new amounts, judge rubber stamps it, file with maintenance enforcement (FRO) if applicable...done.
          NBdad - I actually lol'd at your opening line. You're right. I AM trying to make sense of stupid!

          We do have a clause in the SA about sharing our NoA by June 15 every year. This is just the first time in 5 years he actually shared with me. I don't know how hard it will be to get 2012.

          Thanks for the advice - I will take it!

          Comment


          • #6
            Originally posted by Tayken View Post
            Question. Was the "duty counsel" who said this to you representing you or the other party?

            Good Luck!
            Tayken
            He was representing the other party. He was shaking his head and frowning as he verified the information, asked what this guy's doing, and when he said the line about respondent having to "pay both." I am assuming (projecting feelings) this could have been a sign of disbelief, confusion, or maybe even disgust on the part of the duty counsel lawyer.

            An aside: neither of us qualify for legal aid, so I'm not sure why they can speak on our behalf, but I'm not complaining.

            Comment


            • #7
              Originally posted by Qrious View Post
              He was representing the other party. He was shaking his head and frowning as he verified the information, asked what this guy's doing, and when he said the line about respondent having to "pay both." I am assuming (projecting feelings) this could have been a sign of disbelief, confusion, or maybe even disgust on the part of the duty counsel lawyer.
              If this is a truthful statement, it was incredibly unprofessional of the duty counsel to disclose this information to you directly about their client and to make these kinds of comments. It may possibly be misconduct for the professional to do this, make these comments and expose their client in such a manner.

              Rules of Professional Conduct | The Law Society of Upper Canada

              I highly recommend you bring the conduct of this "professional" to the attention of the ethics investigations office of Legal Aid Ontario for further investigation.

              Legal Aid Ontario: Getting Legal Help

              Originally posted by Qrious View Post
              An aside: neither of us qualify for legal aid, so I'm not sure why they can speak on our behalf, but I'm not complaining.
              Technically, they shouldn't be appearing if neither of you qualify for their services financially. If the justice requested the parties consult with duty counsel then it shouldn't be a problem.

              Finally, I wouldn't recommend you take anything from what this "professional" stated and how they conducted themselves as factual or evidence that your position is better than the other party. In my personal opinion it was incredibly unprofessional for them to conduct themselves in this manner. I caution you to take what was communicated to you with a grain of salt and to not build any "false confidence" on the statements made by this "professional".

              There are great people working for LOA as duty counsel but, based on your description of the events, this individual in my personal opinion doesn't put that organization in the best professional light.

              Good Luck!
              Tayken
              Last edited by Tayken; 06-06-2013, 12:24 PM.

              Comment


              • #8
                Oh my goodness. I'm sorry - I guess I've probably said this wrong.

                I suppose the duty council technically "represent" neither of us - one of the duty counsel lawyers spoke on his behalf, in his absence. The judge verified with him that he does not represent the respondent as he is seeking counsel and has an appointment in a few weeks (I can't remember the judge's exact words in the question) to which the lawyer responded "no." The words said afterwards are accurate, but my saying he was representing him was probably inaccurate.

                I must be careful with my words.

                Thanks Tayken!

                Comment


                • #9
                  If this is a truthful statement, it was incredibly unprofessional of the duty counsel to disclose this information to you directly about their client and to make these kinds of comments. It may possibly be misconduct for the professional to do this, make these comments and expose their client in such a manner.
                  Duty counsel are amicus curiae. While they are often speaking for one party, or providing them with advice, their standing to make submissions comes from their office, not because they are agents for a party.

                  I highly recommend you bring the conduct of this "professional" to the attention of the ethics investigations office of Legal Aid Ontario for further investigation.
                  While the comments appear to be otherwise unhelpful in the context of the litigation, they do not prejudice either party. Nothing prevents two parties from independently obtaining legal information from duty counsel; the take home message may have been, "amend your pleadings to seek retroactive support, oblige your ex to settle or be compensated with a whack of arrears which rain down on the head of someone wasting the court's time". Which, admittedly, would be inappropriate coming from duty counsel.

                  In any event, reporting a friend of the court for comments that help or support you, and don't otherwise impact the litigation, seems to be both a poor way to repay friendly counsel and unlikely to have any impact other than to make them more likely to follow the letter, as opposed to the spirit, of their job.

                  The law in general, and family law in specific, is best served when individual cases have the attention and care of analytically capable and intellectually honest people, whether from the bench, the bar or (dare one hope) in parties.

                  I wouldn't recommend you take anything from what this "professional" stated and how they conducted themselves as factual or evidence that your position is better than the other party.
                  This is true. Commentary is worth the paper it is written on.

                  Technically, they shouldn't be appearing if neither of you qualify for their services financially.
                  While it is surprising that duty counsel would appear when the client can't be bothered to come personally, their job is to facilitate the equitable administration of justice. Prima facie, I see no fault in their appearance.

                  Comment


                  • #10
                    OrleansLawyer - Thank you so much for weighing in about the duty counsel who may have said too much to me the other day. (It wasn't even supposed to be the main point of my story, I just thought it was interesting. I probably saw his words as validation that I'm not asking for anything unreasonable)

                    I have no intention of "turning" this guy "in". I think maybe he saw how scared I was and was probably just trying to help. I would never hope to punish someone for trying to be helpful.

                    Initially saying that the counsel represented the respondent, though, was inaccurate on my part, so I see why Tayken offered the advice he did.

                    Thanks again.

                    Comment


                    • #11
                      I think maybe he saw how scared I was and was probably just trying to help.
                      To take a quote from a good book - Don't Panic.

                      As long as your children, and you, are safe, fed and clothed, the rest can be remedied with time. The court system is slower than most people like, however if you act in good faith and honesty you won't be punished for looking at a judge the wrong way.

                      Comment


                      • #12
                        Originally posted by OrleansLawyer View Post
                        Duty counsel are amicus curiae. While they are often speaking for one party, or providing them with advice, their standing to make submissions comes from their office, not because they are agents for a party.
                        I just checked with LOA and when appearing on behalf of a party they are not "amicus curiae". It took 2 hours on the phone waiting on hold to confirm the role they play when appearing before a justice. They are counsel for one and only one party and should be conducting themselves as such.

                        Originally posted by OrleansLawyer View Post
                        While the comments appear to be otherwise unhelpful in the context of the litigation, they do not prejudice either party.
                        They do prejudice the advice that Legal Aid Ontario provides to clients. Remember, all relationships are governed by the Legal Aid Ontario Act as client and provider. As well, all communications under this act are governed under client provider privileged. The kind person at LOA pointed this out in spades. The same privilege between client and solicitor.

                        Originally posted by OrleansLawyer View Post
                        Nothing prevents two parties from independently obtaining legal information from duty counsel; the take home message may have been, "amend your pleadings to seek retroactive support, oblige your ex to settle or be compensated with a whack of arrears which rain down on the head of someone wasting the court's time". Which, admittedly, would be inappropriate coming from duty counsel.
                        But, not from the same duty counsel. Confirmed with LOA as well by telephone. Basically, the duty counsel is still counsel and cannot counsel both parties.

                        Originally posted by OrleansLawyer View Post
                        In any event, reporting a friend of the court for comments that help or support you, and don't otherwise impact the litigation, seems to be both a poor way to repay friendly counsel and unlikely to have any impact other than to make them more likely to follow the letter, as opposed to the spirit, of their job.
                        It does improve the systemic problems that LOA has and their improper conduct in Family Law matters. Counsel was not acting in a friendly manner and should be conducting themselves in accordance with the regulations of the LOA Services Act as well as the rules of conduct set forth by the processional's governing body... This kind of conduct is a systemic issue LOA has... Right up to the duty counsel that recommends parents abduct children in contravention of section 283.(1) of the Criminal Code of Canada and file "emergency" ex-parte motions in the wrong court jurisdiction.

                        They cannot hide under the Rules of privlidge and then call themselves "friends" of the court. They are either lawyers or they are "friends of the court".

                        If this was the case as you are attempting to project it... Then we wouldn't need this:

                        http://www.legalaid.on.ca/en/privacy...vacypolicy.pdf

                        Almost all the records made and kept by Legal Aid Ontario are subject to an extended solicitor-client privilege provided by s.89 of the Legal Aid Services Act or to the confidentiality provision in s.90. And those provisions (in addition to s.92 relating to quality assurance audits) prevail over FIPPA (s.103 LASA and s.67(2) FIPPA).
                        Maybe you agree, OrleansLawyer, with the Ontario Ombudsman that s.89 and s.90 of LASA should be abolished? Either way, it is still law and the lawyer, representing another party disclosing this information is in violation possibly of Rule s.89 and possibly s.90. Even when acting as duty counsel.

                        I am of the opinion that all interactions of these "professionals" if "friends of the court" should have the same open policy that the OCL and Section 30 of the CLRA requires. It shouldn't be hidden behind Rule s.89 and s.90...

                        Every day millions in fraud is conducted on the "wings" of taxpayer dollars in nonsense family law matters.

                        Case on point: http://canlii.ca/en/on/onsc/doc/2011...1onsc7476.html

                        Originally posted by OrleansLawyer View Post
                        The law in general, and family law in specific, is best served when individual cases have the attention and care of analytically capable and intellectually honest people, whether from the bench, the bar or (dare one hope) in parties.
                        Duty counsel is more of a hindrance than a help in family law matters. Front line mental health workers would be more assistance to the court than lawyers in most cases.

                        I am always surpised to see how quickly duty counsel and employees of LOA will advise a client to take the most extreme and unfortunate course of actions before the courts... Then stand there and take no accountability to the advice they give out. Even if their advice is "medical" in nature... (For example, the information they provide on "domestic violence" that is gender biased.)

                        Originally posted by OrleansLawyer View Post
                        While it is surprising that duty counsel would appear when the client can't be bothered to come personally, their job is to facilitate the equitable administration of justice. Prima facie, I see no fault in their appearance.
                        Their appearance without consent would be a violation of the rights of the non-represented party who was not in attendance.

                        If more people called out the "professionals" on their bad conduct, improper advice and often, sharp practices in law... There would be better outcomes for children in family court, less conflict, etc...

                        Not to say lawyers are to blame... Just that some times...

                        When Helping Hurts - How Professionals Become Negative Advocates - Or Not

                        Good Luck!
                        Tayken

                        PS: http://www.legalaid.on.ca/en/info/do...ual_online.pdf

                        Any lawyer who advises or represents a person as duty counsel shall not represent that person “in the same matter”. Duty counsel can represent the individual in subsequent matters provided there was no touting while acting as duty counsel.
                        Last edited by Tayken; 06-10-2013, 02:16 PM.

                        Comment


                        • #13
                          Originally posted by OrleansLawyer View Post
                          To take a quote from a good book - Don't Panic.

                          As long as your children, and you, are safe, fed and clothed, the rest can be remedied with time. The court system is slower than most people like, however if you act in good faith and honesty you won't be punished for looking at a judge the wrong way.
                          Or if you exploit the design flaws of the "system" then you can get some wings, engage in legal harassment of the other party...

                          Case on point:

                          CanLII - 2011 ONSC 7476 (CanLII)

                          Good Luck!
                          Tayken

                          Comment


                          • #14
                            Duty counsel... as "mental health workers"?? From their own "manual" as published by their employer... In violation of the Human Rights Act of Ontario that requires all persons be treated equally no matter what gender or sexual orientation they are... But for some reason, their "manual" lacks this neutrality...

                            Further reasons why I am opposed to Legal Aid Ontario providing any information outside the scope of what is allowable under their rules of professional conduct...

                            The issue of family violence has become increasingly important as its frequency becomes more evident. Duty counsel are encouraged to take steps to ensure that victims of family violence receive assistance.

                            The needs of women who are victims of violence are complex and may involve a range of legal, social and related issues. Requesting help or information is often a major step for an assaulted woman and an appropriate response is crucial if she is to obtain needed assistance.

                            An abused spouse frequently shows a pattern of leaving and then returning to an abusive partner. Sometimes this pattern repeats itself a number of times. Duty counsel should provide assistance to those who seek it wherever help is sought.
                            What about those abusive people who demonstrate a pattern of abuse through the court system to the other parent. Through lies, distortion campaigns, obtaining "wings" from Legal Aid Ontario? Why is it that abuse is only perpetrated against women? Why not gay men? Transgendered?

                            What is Duty counsel to do when they are working with a client where the other party has engaged in the transparent "truisms" of a form of abuse known as "legal abuse"? Who should Duty counsel report this conduct to? Are they obligated to report, as friends to the court, that their client is acting in bad faith?

                            Case on point:

                            The Respondent asks a valid question: Does she have wings? Can she do whatever she wants in court, without ever worrying about fees – hers or anyone else’s?
                            I ask the same question... This form of "legal abuse" and using LOA services to do this is very common and well recognized form of abuse... Yet, because someone got paid to abuse someone else... It now falls on to the taxpayer's shoulders to fit the bill incurred by these highly conflicted (possibly mentally ill) litigants...

                            Unless citizens bring forward proper complaints to the societies that "govern" (a term I use loosely) this conduct will continue, families will be abused and more importantly children, our most important asset in our society will be raised in unnecessary conflict.

                            Good Luck!
                            Tayken

                            Comment


                            • #15
                              Originally posted by OrleansLawyer View Post
                              Duty counsel are amicus curiae. While they are often speaking for one party, or providing them with advice, their standing to make submissions comes from their office, not because they are agents for a party.

                              Bhajan v. Ontario (Children's Lawyer), 2010 ONCA 560 (CanLII)
                              Date: 2010-08-20
                              Docket: C52167; C51316; M39100; M39098; M39099; C51832; C52133; C52169
                              URL: CanLII - 2010 ONCA 560 (CanLII)
                              Citation: Bhajan v. Ontario (Children's Lawyer), 2010 ONCA 560 (CanLII)

                              Zoe Childs v. Desormeaux, 2003 CanLII 47870 (ON CA)
                              Date: 2003-10-01
                              Docket: M30222; C38836
                              Parallel citations: 67 OR (3d) 385; 231 DLR (4th) 311; 177 OAC 183
                              URL: CanLII - 2003 CanLII 47870 (ON CA)
                              Citation: Zoe Childs v. Desormeaux, 2003 CanLII 47870 (ON CA)

                              Bhajan v. Bhajan, 2010 ONCA 714 (CanLII)
                              Date: 2010-10-28
                              Docket: C51273; C51316; C51832; C52167; C52133; C52169
                              URL: CanLII - 2010 ONCA 714 (CanLII)
                              Citation: Bhajan v. Bhajan, 2010 ONCA 714 (CanLII)

                              For those interested in the legal Latin behind "amicus curiae" ("friend of the court") the above case law goes through the Rules governing what and who can be identified as a "friend of the court".

                              Why can’t amicus curiae be required to be objective “friends of the court”? – Slaw

                              3. LEGAL PRINCIPLES

                              The Role of Amicus

                              [15] Generally, an amicus curiae is legal counsel who assists the court, at the court’s request, and is disinterested.[2] There is no precise definition of the role of amicus curiae capable of covering all possible situations. In R. v. Sharma, Rosenberg J.A. for the Court held that, “In its ordinary use, the term implies the friendly intervention of counsel to remind the Court of some matter of law which has escaped its notice and in regard to which it is in danger of going wrong.” [3]

                              [16] This is done to ensure the trial process is fair. Amicus curiae is not legal advisor to the accused.[4]

                              [17] The role of amicus may evolve and expand to meet the changing needs of the trial. Amicus may be assigned a role that can be properly described as acting for the accused where it is in the interest of justice to do so. In their Report on Large and Complex Criminal Case Procedures Professor Code (now Mr. Justice Code of the Ontario Superior Court) and Former Chief Justice Lesage note that: “If the accused gains confidence in the amicus, the role can evolve into a form of representation”. [5]

                              [18] For example, amicus may be asked to take on a more direct and active role including the cross‑examination of witnesses.[6] In R. v. LePage[7], Juriansz J.A. for the court held that, “In my view, amicus curiae may be appointed by the [Court] and assigned the role of presenting the issues favouring the accused which otherwise might not be raised. I am satisfied that an amicus curiae who is assigned this role may be said to ‘act for the accused’.”

                              [19] Counsel in such a role may need to consult with the accused to ascertain relevant lines of inquiry. In M(A) v. Ryan[8], MacLachlin J. for the majority wrote at paragraphs 21 and 22, that:

                              “…it is now accepted that the common law permits privilege in new situations where reason, experience and application of the principles that underlie the traditional privileges so dictate: Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254; R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at p. 286. The applicable principles are derived from those set forth in Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), § 2285. First, the communication must originate in confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good. Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.

                              It follows that the law of privilege may evolve to reflect the social and legal realities of our time.”

                              [20] Thus, where amicus takes on a more direct role, the common law would seem to permit discussions between amicus and the accused to be protected by privilege.

                              [21] The accused cannot discharge the amicus or prevent the amicus curiae from continuing to act as a friend of the court as the primary function of amicus is not to assist the accused but to assist the court in ensuring that the trial is fair.[9]

                              When to Appoint Amicus Curiae

                              [22] There are traditionally three situations in which the court may appoint amicus curiae: (a) where there is a matter of public interest in which the court invites the Attorney‑General or some other capable individual to intervene; (b) to prevent an injustice, for example, to make submissions on points of law that may have been overlooked; and (c) to represent the unrepresented.[10]

                              [23] There are a number of factors to consider in the appointment of counsel including: the complexity of the case, the seriousness of the potential penalties faced by the accused, the accused’s age and ability to understand the proceedings and to express himself, and the accused’s familiarity with the trial process.[11]

                              Jurisdiction to Set Remuneration for Amicus Curiae

                              [24] In R. v. Wong[12], Goudge J.A. held that the Court has the power to appoint an independent prosecutor. A necessary corollary of this power is that the court can fix the rate at which the Crown must remunerate the independent prosecutor. The rate must be reasonable. The fixing of the rate is important to facilitate the retainer of the independent prosecutor.[13]

                              [25] The court considered a number of factors to determine how to arrive at a reasonable rate:

                              • the importance of the assignment undertaken,

                              • the legal complexity of the work to be done,

                              • the skill and experience of counsel to be appointed, and

                              • his or her normal rate charged to private sector clients.

                              [26] As amicus is performing a public service, he or she ought not to expect to be remunerated at private sector rates.

                              [27] The appointment of amicus curiae is a process independent from the Legal Aid Plan as amicus is not a party to the case, but a friend of the court.[14]

                              [28] If the Attorney‑General is prosecuting in the public interest, and it is in the public interest to have competent counsel available to carry out the function of amicus, it would seem to follow that it is in the public interest for the Attorney‑General to pay the costs. If the Attorney‑General does not pay, then the prosecution may be stayed as an abuse of process.[15]
                              As we see, in case law... "amicus curiae is a process independent from the Legal Aid Plan"... Duty counsel is retained, governed and managed under the Legal Aid Service Act (Plan) and therefore is a process independent of it... And that Act (LASA) governs who is eligible for service and it does not fall in line to the court's definition of amicus curiae.

                              Good Luck!
                              Tayken

                              Good Luck!
                              Tayken
                              Last edited by Tayken; 06-10-2013, 03:22 PM.

                              Comment

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