Law Times

Law Times • November 10, 2008 Confusing political with partisan A n astute observer of Queen's Park once de- scribed Attorney Gen- eral Chris Bentley as "clever, but not as clever as he thinks he is. He confuses being po- litical with being partisan." That reading of the man certainly got vindication in recent days as Bentley took a media shellacking for play- ing cheap partisan games around a series of tragic deaths in Toron- to involving people out on bail who are alleged to have commit- ted crimes. It isn't the fi rst time Bent- ley has gone overboard when responding to questions about how the justice system operates. Last spring a young woman went to jail as a material witness for refusing to testify against her boyfriend in a domestic abuse case, and it brought ques- tions from the opposition Pro- gressive Conservatives and New Democrats. Instead of explaining that such detentions, however sad, are part and parcel of the price to be paid for a zero tolerance approach to male abusers, Bent- ley went off the deep end and accused the NDP's Howard Hampton of playing politics with cases before the courts and second-guessing the judiciary. But he never made clear ex- why actly elected legislators shouldn't second-guess elements of the justice system when they think it has made a mistake. A whole collection of wrong- ly convicted people, and an- other group of victims who've never been given satisfaction, might like to know why the sys- tem is so sacrosanct that it can never be challenged. Bentley's comment at the time was revealing: "If he's ask- ing me whether we'll go back to where it was when I started prac- tising law, I say no." Did he mean back to when democratic accountability ex- isted in the system, where those elected by the people to rep- resent them actually accepted responsibility for what was hap- pening under their watch? A similar demand appears to be what exercised Bentley most in his recent blow-up. Again the opposition PCs and New Democrats were asking the Liberals to respond to events on the street by looking at systemic issues. Both parties supported a motion by Tory Bob Runciman calling for a public inquiry into Ontario's bail system. Bentley tried indirectly to block introduction of the mo- tion, which brought the com- ment from the NDP's Peter Ko- rmos that he planned to stand with Runciman as an advocate for victims of crime with "no shame; in fact, with pride, because if that isn't one of the things that we should be doing at Queen's Park as elected people, then we should all go home. "If we can't raise these issues, if we have to function under a cloud of fear about raising them, then the problem extends far be- yond our criminal justice system Inside Queen's Park By Derek Nelson . . . if a member of the Legislature has to risk censure or other con- sequences for conducting himself with integrity and in good faith on behalf of victims of crime, then I say . . . we've got a funda- mental problem here, not just in our court system," he said. In the end, the debate went ahead, and the Liberals predict- ability voted down what was being sought. Here's what Bentley found so threatening, as summarized by Kormos: "A thorough review of how bail is granted, how bail is ac- quired, how release orders are obtained, how release orders are given; a thorough review of the resources that are available to cops and Crown attorneys; a thorough review of the abil- ity of the courts to properly conduct bail hearings in such a way that they can hear all of the evidence so that their decisions can be based upon all of the facts, not just some of the facts; an understanding of the quotas, formal or informal, that Crown attorneys' offi ces may be under in order to get cases processed through; an understanding of why it is that some people cool their heels for days at a time charged with somewhat minor offences when . . . others are re- leased in what seems to be . . . such a perfunctory way." None of this is a federal re- sponsibility, yet when Run- ciman fi rst raised the bail is- sue, Bentley's telling, political, partisan response was to blame everything on the Conservative federal government. "The Criminal Code is fed- eral jurisdiction. It's time he picked up the phone and called his friend Harper . . . " and so on. This triggered a highly unusu- al open letter from the federal jus- tice minister's offi ce which sliced and diced every point made by Bentley, pointing out how it was the opposition federal Liberals and friends who had gutted the Tory law-and-order legislation in the last Parliament. Although the federal slap down seemed to mellow Bent- ley somewhat and he began talking about "our federal part- ners," he never once dealt with the substantive issues raised by the provincial PCs and New Democrats. This appears to make sense only in the context of the Lib- eral government wanting to hide from the public that it has abdi- cated all accountability in regards to administering a system where it is the legal authority. LT Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is jugurtha@ rogers.com. Karen Lorimer 905-713-4339 klorimer@clbmedia.ca www.lawtimesnews.com Narrow 1/8 - 3X.indd 1 11/5/08 4:19:33 PM I COMMENT Bankruptcy and equalization payments t is not uncommon that we fi nd ourselves in a situation where the opposing spouse, knowing he or she is going to have to make an equalization payment, fi les for bankruptcy. This is all too often the risk in matrimonial liti- gation as a spouse can become technically insol- vent when separating. I say "technically" be- cause equally often, that insolvent person is able to fi nd a way to meet his or her debt (and matrimonial) ob- ligations with a little effort. Nevertheless, in many cases, payor spouses do resort to fi ling for bankruptcy to avoid their equalization payment obligations. This makes for a very frus- trating situation when trying to help a client. The bankruptcy problem was considered by Justice P.B. Kane in Petryna v. Petryna earlier this year. In that case, the husband had fi led for bank- ruptcy. Ultimately, the trustee, having fulfi lled all of his duties as trustee in respect of the estate, was discharged. The husband however was not. He continued in default of various requirements under the terms of the bankruptcy. The wife fi led a claim to pursue her rights of equalization, which naturally were opposed by the husband as he was yet undischarged. While Petryna doesn't actually change the law, Kane does consider the relevant sections of the Bank- ruptcy and Insolvency Act in the matrimonial context. Sections 69.3 and 69.4 are the relevant provisions and are not often analyzed or inter- preted in matrimonial case law. Section 69.3(1) provides for a stay of all proceedings against a bankrupt and s. 69.4 provides the court with jurisdiction to grant leave to a creditor to con- tinue a claim against the bankrupt. Leave how- ever is not easy to get. Kane confi rmed that a creditor who has not been dealt with in the context of the bank- ruptcy is free to pursue his or her claims against the undischarged bankrupt without the need to obtain leave from the court, as soon as the trustee has been discharged. A bankrupt former spouse is one of those pesky situations that can lead to huge problems for our clients and must be dealt with effi ciently as fi nances are already likely very strained. I say Petryna doesn't change the law in any real way because s. 69.3(1) and (1.1) of the BIA specifi cally provide: * 69.3 (1) Subject to subsections (1.1) and (2) and sections 69.4 and 69.5, on the bank- ruptcy of any debtor, no creditor has any rem- edy against the debtor or the debtor's property, or shall commence or continue any action, ex- ecution or other proceedings, for the recovery of a claim provable in bankruptcy. * (1.1) Subsection (1) ceases to apply in respect of a creditor on the day on which the trustee is discharged. Family Matters By Marta Siemiarczuk While the legislation specifi es that the stay con- tinues only until the trust- ee (not the bankrupt) is discharged, section coupled 69.4, with it could be argued, as it was, that the bankrupt himself needs to be discharged along with the trustee, otherwise leave is required. Section 69.4 is the section that allows the court to grant leave to a creditor to pursue a claim against an undischarged bankrupt. The condi- tions that need to be met are, (a) the creditor is likely to be "materially prejudiced" if leave is not granted or (b) it would be equitable to grant leave. Given that in principle all creditors are ma- terially prejudiced by a bankruptcy, the test is most defi nitely a diffi cult one to meet when one considers the purpose of bankruptcy legislation. What Kane does, however, is confi rm that this is not necessary based on strict principles of statu- tory interpretation espoused by the Supreme Court of Canada. The language in the legislation is clear and ought not be interpreted in any other way. Once the trustee has been discharged, re- gardless of whether the bankrupt has co-operated and fulfi lled his or her obligations, creditors are free to pursue their claims without the need to resort to seeking leave of the court. This is particularly important in matrimonial situations as resources to pursue costly legal ac- tion are scarce for most clients. The need to bring an application before pursuing the actual claim itself just adds to the litigation costs. While a very short decision, it is one that all family law lawyers ought to keep in mind when dealing with a potentially bankrupt opposing party — especially one that has likely done so in- tentionally to avoid an equalization payment. All too often, once there is a bankruptcy, parties sim- ply give up. This is one of those helpful reminders that there are ways of getting around a bankruptcy and that staying the course could lead to a positive resort if your facts are good. LT Marta Siemiarczuk is a lawyer practising family law, collaborative family law, and civil litigation with the Ottawa offi ce of Borden Ladner Gervais LLP. Marta can be reached at msiemiarczuk@ blgcanada.com. PAGE 7 To advertise in an upcoming issue, contact our sales team: Kimberlee Pascoe 905-713-4342 kpascoe@clbmedia.ca Rose Noonan 905-726-5444 rnoonan@clbmedia.ca

• Cover
• Fatboys Running
• Avoiding Equalization
• Focus On Family Law