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October 17, 2011

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PAGE 6 COMMENT Law Times Group Publisher . . . . . . Karen Lorimer Editorial Director . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . Michael McKiernan Staff Writer . . . . . . . . . .Kendyl Sebesta Copy Editor . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . . Lorraine Pang Art Director . . . . . . . . . Alicia Adamson Account Co-ordinator . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . Derek Welford Advertising Sales . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. OctOber 17, 2011 • Law times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 647-288-5418 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@thomsonreuters.com or Tel: 416- 649-8809 or Fax: 905-841-6786. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call Karen Lorimer at 647-288-8018 karen.lorimer@thomsonreuters. com, Kimberlee Pascoe at 416-298-5141 Ext. 4052 kimberlee.pascoe@thomsonreuters.com, or Sandy Shutt at sandra.shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Mitchell Wilson deserves day in court I t was one of the saddest stories Ontarians have seen in some time. Last month, Craig Wilson of Pickering, Ont., told the story of his 11-year-old son, Mitchell, who had committed suicide after suff ering bully- ing at school. So many things about the story were tragic: Mitchell's struggles to walk after his diagnosis with muscular dystrophy; the alleged attack by two boys last year who wanted his iPhone and knocked him to the ground; and the subsequent bullying by the ac- cused's friends at school as the victim prepared to testify in court. Adding to the horrendous circum- stances, Mitchell, anxious and depressed at the prospect of going to court, took his own life as he got ready for the fi rst day of school. Making matters worse, the case against the alleged attacker appeared likely to fall apart given that Mitchell could no longer testify. As Mitchell's father pointed out, there likely were many factors behind the boy's decision to commit suicide. But the fact that Mitchell suff ered so much that he took such a drastic step is an obvious indicator of a societal failure. To then have the criminal case fall apart would be a cruel outcome. It's good, then, to see that the jus- tice system is at least doing its best to resurrect the case. At a hearing late last month, Ontario Court Justice Teresa Devlin adjourned the mat- ter so the Crown could prepare its case. While Mitchell's family initially thought there was little prospect of go- ing ahead, it appears the Crown may try to use an affi davit the boy wrote prior to his death as part of the case. According to an article in the National Post, Mitchell's stepmother Tiff any Usher is now the key Crown witness given that she chased down the assail- ants in the attack after she rushed to the scene. Th e Crown, of course, has a duty not to proceed if there's no reasonable pros- pect of conviction. It's hard to say what the likelihood of that is at this point as it will depend in part on the strength of Usher's eyewitness testimony. But at least the Crown and the court are mak- ing eff orts to fi nd a way to go forward. It's tempting in cases like this to take an aggressive approach calling for strict punishment of the accused. But regard- less of one's view on the merits and ef- fectiveness of cracking down on crime, Mitchell, even though he can't be there, deserves his day in court. On principle, it's only right that the accused should have to appear in court given the trau- matic circumstances. While a trial ulti- mately might not result in a conviction, it would at least demonstrate that peo- ple have to accept some consequences by facing the victim's family in court. More importantly, it would go some way to honouring Mitchell and send a message to society about bullying. In addition, if the court does fi nd the accused guilty, there would be an op- portunity for some sort of restorative justice remedy that Mitchell's relatives have said they'd like to see. Ultimately, it's the law that should govern what happens , regardless of the emotions involved. But Mitchell's case is an exceptional one, so the courts should do their best to allow for a just result. — Glenn Kauth esting decision awarding costs against the Family Responsibility Offi ce for essentially taking mat- ters into its own hands and caus- ing many hours of lawyers' time in attempting to sort things out. John Emhecht was a payer of child support. Kimberly Lake was the recipient. It ap- pears from the reasons in this case that these parties had two children. At some point in time, it became questionable whether support was payable for the older child and, as is so frequently the case, a debate ensued on the issue. Notwithstanding Emhecht's objections to the validity of continuing to pay support for the older child, Lake sought enforcement of the amounts through the Family Responsi- bility Offi ce by fi ling a state- ment of arrears. Th e issue here rested on whether or not the offi ce had engaged in actually interpreting the terms of a prior order for E Family Responsibility Office rapped for costs Family arlier this year, Supe- rior Court Justice Kendra Coats rendered an inter- payment of support or wheth- er it was merely enforcing one. Counsel for Emhecht ap- parently went to great pains to sort things out with the offi ce in order to avoid the inevitable suspension of his driver's licence and other sanctions against him. He ul- timately had to bring a motion for a refraining order. During the back and forth with the offi ce, Emhecht's counsel provided various piec- es of information, including a letter written by Lake at an ear- lier point in time in which she herself agreed with her client's current interpretation of the original support order and on when the payments for a child would end. Of course, that wasn't Lake's current position. Notwithstanding this infor- mation and knowing that the issue of whether the support was actually payable was in dis- pute, the offi ce still enforced the amounts. In what I would call a set of stern reasons, Coats dealt with the policies in place within the Law By Marta Siemiarczuk offi ce, in particular its policy of not interpreting court orders and instead sending parties back to court to clarify or vary them. Noting the offi ce's policies of treating all of its clients "fairly" and with "respect," Coats point- ed out that Emhecht's lawyer had written to counsel at the offi ce with detailed correspon- dence only to receive no re- sponse or a non-responsive one. In this case, Coats made clear that if the offi ce is aware that there's a question as to whether a term of an order ought to be enforced and if that dispute is legitimate, the mat- ter should go back to court for clarifi cation rather than push- ing forward with enforcement procedures. In addition, while claims for damages against the offi ce may be precluded, those www.lawtimesnews.com on account of costs are not. In such circumstances, a party doesn't need to resort to the provisions of the Proceedings Against the Crown Act, an ar- gument put forth by counsel for the offi ce. If, according to Coats, a party can establish that there are special and unusual circum- stances, the payer — or recipi- ent, as the case may be — has grounds for seeking to recoup legal fees from the offi ce. A party doesn't need to show any bad faith on the offi ce's part in order to succeed. What's also interesting in this case is that the offi ce sought to recoup any costs the court ordered it to pay from Lake, the recipient parent who fi led the statement of arrears that its director relied on. Coats found no merit in that argument. Th e end result here was that the court ordered the of- fi ce to pay costs arising from the refraining order motion of $1,000 plus a further $4,000 towards Emhecht's costs in the main proceeding. Th is decision isn't earth- shattering by any means. It's quite a rarity, however, and is a case that warrants a broader discussion as situations like this arise in our practices all too often. At the same time, these types of situations frequently arise in cases where people don't have the funds to retain lawyers to navi- gate what can be a very costly road of compliance issues. Th is decision makes clear, however, that when faced with credible in- formation, the offi ce has a duty to deal with it rather than simply relying on the recipient's state- ment of arrears. Understandably, the offi ce is extremely busy and likely quite understaff ed. Still, it's clear that individuals don't necessarily have to shoulder the fi nancial burden of that admin- istrative diffi culty. Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca.

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