Tuesday, April 12, 2016
Thursday, March 24, 2016
Appeals
I represented a friend in Small Claims court. He had a contractor put in a steel roof and complete a few other jobs within the same home. To make a long story short we sued for the full amount of $25,000 allowed by the Small Claims Court. We won and obtained judgement.
After sending a letter to the defendant looking for payment we received paperwork from the Defendant advising that he had retained a lawyer now and that the judgment was being appealed. So the Defendant had 30 days from the time of judgment to file his notice of appeal. After that, his counsel has to order the transcript so as to 'perfect' the appeal. The rules say that the defendant has 60 days to perfect the appeal from the time the defendant receives the transcript.
Well we waited to give them ample time to perfect the appeal and eventually followed up with the defendants lawyer about the appeal. We were advised that he had yet to receive the transcript as it was still being approved by the Deputy Judge.
The key word here is 'received'. It is going on 6 months now and not only has the appeal not been perfected, but the defendants lawyer has yet to receive the transcript. So I must ask the questions.......my friend would be the first to admit he doesn't have money to replace the roof and was hoping the judgment he won would go towards the replacing of the roof. Well not only did this whole court process take almost two years, but even after obtaining judgment, we cannot even enforce it. So my friend must continue to be patient and allow the court process to continue. Meanwhile, his roof is garbage and is causing extensive damage inside. One might say well you will get interest no? Yes of course, but the interest as per the Courts of Justice Act is negligible.
A very difficult situation to say the least. It will be even more frustrating and time consuming if the appeal is granted and a we have to go through another trial.
To be continued.
After sending a letter to the defendant looking for payment we received paperwork from the Defendant advising that he had retained a lawyer now and that the judgment was being appealed. So the Defendant had 30 days from the time of judgment to file his notice of appeal. After that, his counsel has to order the transcript so as to 'perfect' the appeal. The rules say that the defendant has 60 days to perfect the appeal from the time the defendant receives the transcript.
Well we waited to give them ample time to perfect the appeal and eventually followed up with the defendants lawyer about the appeal. We were advised that he had yet to receive the transcript as it was still being approved by the Deputy Judge.
The key word here is 'received'. It is going on 6 months now and not only has the appeal not been perfected, but the defendants lawyer has yet to receive the transcript. So I must ask the questions.......my friend would be the first to admit he doesn't have money to replace the roof and was hoping the judgment he won would go towards the replacing of the roof. Well not only did this whole court process take almost two years, but even after obtaining judgment, we cannot even enforce it. So my friend must continue to be patient and allow the court process to continue. Meanwhile, his roof is garbage and is causing extensive damage inside. One might say well you will get interest no? Yes of course, but the interest as per the Courts of Justice Act is negligible.
A very difficult situation to say the least. It will be even more frustrating and time consuming if the appeal is granted and a we have to go through another trial.
To be continued.
Tuesday, March 22, 2016
Garnishments
The courts can be very frustrating. One of the more frustrating situations, is enforcing an order and having to wait for monies. Let me use as an example a small claims order. You fill out the paperwork for say a garnishment of wages. Assuming you have done everything right the company will, within a certain amount of time, remit monies to the courts.
Now, the courts upon receiving the first payment from the employer, is to hold that first payment for 30 days. This gives someone the time they require to file a motion if need be to stop a garnishment. This 30 day hold only to the first remittance. Every payment after that, once the courts receive the payments, they are to write and send a cheque to the person owed the money. This may be done through a representative if that person had legal counsel etc.
One would think that it shouldn't take more that a month and a half to receive monies. This is not the case. I have actually experienced where the courts have received monies and have not even placed them into their trust account. To add insult to injury, once the money is placed in their trust account, it takes another month or more for them to write a cheque and send it to the persons owed the money. Some courts are better than others, but in some cases certain courts only have part time bookkeepers which adds to the problem. I have seen it where it has taken in excess of 4 months for the courts to release monies owed.
This is simply not acceptable. This is money owed to individuals who have had to traverse the courts and spend time and money. Oh and lets not forget the frustration, stress and anxiety attached to many of these cases for an individual. That four months is interest that they could be getting on this money but instead have to wait. When one calls the courts to inquire, the clerks either give an excuse as to what has happened and why. Most simply accept this as the price of doing business.
I think that should more people complain perhaps something would change. What do I know? Nothing has changed and it would seem nothing will change anytime soon. So at the moment, it seems to be the best we have for the time being.
Let me add this......if it was the government who wanted monies owed to them, they want it yesterday, with interest. Double standard?
Now, the courts upon receiving the first payment from the employer, is to hold that first payment for 30 days. This gives someone the time they require to file a motion if need be to stop a garnishment. This 30 day hold only to the first remittance. Every payment after that, once the courts receive the payments, they are to write and send a cheque to the person owed the money. This may be done through a representative if that person had legal counsel etc.
One would think that it shouldn't take more that a month and a half to receive monies. This is not the case. I have actually experienced where the courts have received monies and have not even placed them into their trust account. To add insult to injury, once the money is placed in their trust account, it takes another month or more for them to write a cheque and send it to the persons owed the money. Some courts are better than others, but in some cases certain courts only have part time bookkeepers which adds to the problem. I have seen it where it has taken in excess of 4 months for the courts to release monies owed.
This is simply not acceptable. This is money owed to individuals who have had to traverse the courts and spend time and money. Oh and lets not forget the frustration, stress and anxiety attached to many of these cases for an individual. That four months is interest that they could be getting on this money but instead have to wait. When one calls the courts to inquire, the clerks either give an excuse as to what has happened and why. Most simply accept this as the price of doing business.
I think that should more people complain perhaps something would change. What do I know? Nothing has changed and it would seem nothing will change anytime soon. So at the moment, it seems to be the best we have for the time being.
Let me add this......if it was the government who wanted monies owed to them, they want it yesterday, with interest. Double standard?
Saturday, March 19, 2016
Laying of a Private Infromation
Long Time
It has been a long time since last I blogged. Since my last blog, many things have happened. Lets simply start by talking about a process known as laying a private information with a Justice of the Peace.
This process is quite simple, literally. One simply has to attend a court house and speak with a Justice of the Peace and convince the Justice that someone has committed a crime against them, or in some cases they may simply be looking for a Peace Bond against someone.
Now common sense would dictate that if you are going to speak with a Justice, you will need to convince this Justice with grounds, I will call it reasonable grounds. I would like to think that that be done by way of witness statements, documentary evidence, etc......to just go in and tell a Justice that they want a Peace Bond because someone said something or hurt them in some way. My God, if anyone and everyone could simply go in and say this, and the Justice goes on and issues a Peace Bond or issues a summons to a person to answer to the information laid by this private person, then I think the courts would be overwhelmed with cases.
Just because it is a private information and not as a result of a police investigation doesn't make the problem any less serious. There must be a burden on that accuser to perhaps not prove it right then and there but at least have enough information that could form reasonable grounds.
I know someone who was issued a summons to answer to a request to the courts for a Peace Bond. What is remarkable is this person was simply issued a summons and has yet to receive disclosure. Knowing the facts in this case, this is simply a matter involving a person (accuser) that was not happy with a service she received and because of this she has filed cases in several jurisdictions to get revenge of some kind. These other matters had been settled but the accuser was not satisfied. Instead, she has in fact now broken the law herself by making these false allegations, however, the defendant must now take the time and effort to defend themselves and find a way to hold the accuser accountable. Will this be easy. Probably not. Will it cost money and take time. Absolutely, but as I often say, you have to know what battle to fight. This is a battle that one must keep a level head and trust in the system. Easier said than done.
I think the bigger issue is how this even got to this point. This person has provided no evidence or grounds to defend the Justice issuing this summons. The accuser should have been shut down at the outset. The Justice could not possibly have had enough information. Perhaps I say all this as I am biased and am friends with this individual but stepping back and discussing the facts with others, it seems the consensus is that this should be withdrawn and some kind of repercussion against the accuser. To be continued as this story is still developing.
It has been a long time since last I blogged. Since my last blog, many things have happened. Lets simply start by talking about a process known as laying a private information with a Justice of the Peace.
This process is quite simple, literally. One simply has to attend a court house and speak with a Justice of the Peace and convince the Justice that someone has committed a crime against them, or in some cases they may simply be looking for a Peace Bond against someone.
Now common sense would dictate that if you are going to speak with a Justice, you will need to convince this Justice with grounds, I will call it reasonable grounds. I would like to think that that be done by way of witness statements, documentary evidence, etc......to just go in and tell a Justice that they want a Peace Bond because someone said something or hurt them in some way. My God, if anyone and everyone could simply go in and say this, and the Justice goes on and issues a Peace Bond or issues a summons to a person to answer to the information laid by this private person, then I think the courts would be overwhelmed with cases.
Just because it is a private information and not as a result of a police investigation doesn't make the problem any less serious. There must be a burden on that accuser to perhaps not prove it right then and there but at least have enough information that could form reasonable grounds.
I know someone who was issued a summons to answer to a request to the courts for a Peace Bond. What is remarkable is this person was simply issued a summons and has yet to receive disclosure. Knowing the facts in this case, this is simply a matter involving a person (accuser) that was not happy with a service she received and because of this she has filed cases in several jurisdictions to get revenge of some kind. These other matters had been settled but the accuser was not satisfied. Instead, she has in fact now broken the law herself by making these false allegations, however, the defendant must now take the time and effort to defend themselves and find a way to hold the accuser accountable. Will this be easy. Probably not. Will it cost money and take time. Absolutely, but as I often say, you have to know what battle to fight. This is a battle that one must keep a level head and trust in the system. Easier said than done.
I think the bigger issue is how this even got to this point. This person has provided no evidence or grounds to defend the Justice issuing this summons. The accuser should have been shut down at the outset. The Justice could not possibly have had enough information. Perhaps I say all this as I am biased and am friends with this individual but stepping back and discussing the facts with others, it seems the consensus is that this should be withdrawn and some kind of repercussion against the accuser. To be continued as this story is still developing.
Sunday, March 4, 2012
Assessments
During my push for shared custody in the Family Courts for my daughters, I had to pay half for an assessment. This was no problem until well after I had the assessment and the assessment basically allowed me more time with my daughters, but did not allow me shared custody and took my joint custody from me. At first I was alright with it all. Until my oldest daughter informs (without prompting) that, and I quote, "Mommy made me tell the assessment guy what to say." My daughter feels guilty about this and I feel so bad because what kind of parent would do that. Well I know what kind of parent, but truly, how sad. My ex told my daughter that she needed to think about the family and her younger sister. All I ever told my girls when that day approached to speak with the assessor was to tell the truth. I understand why my eldest said what she said. For fear of her mother and what she would have to put up with if she didnt say what she was supposed to. It's almost a year and a half later and my eldest daughter asked me if she could send an email to one of the men she spoke to at children's aid. He had told her during an open file investigation of my ex that if my daughter ever needed to talk, to contact him. She said she can't make contact with him from her email address cause her mommy checks it all the time and she can't call. So she asked if I could help her make a second email address and then contact this worker. I helped her and supported her but at no time did I ever tell her what to say or do. I hope she gets the help she is looking for.
After spending the weekend at her mothers and on my next access date, she stated to my girlfriend (who told me later) that she understands why my dad is not with my mom anymore. I don't know how any man can be with that woman. This is from my daughters own mouth about her mother. I truly hope and pray that my daughter will be alright.
I can only imagine what my Family Court Order would have granted me had the assessment not been manipulated by my ex. Too late now. I think this will all come back and bite my ex in the ass. I guess they call that karma. We will see.
After spending the weekend at her mothers and on my next access date, she stated to my girlfriend (who told me later) that she understands why my dad is not with my mom anymore. I don't know how any man can be with that woman. This is from my daughters own mouth about her mother. I truly hope and pray that my daughter will be alright.
I can only imagine what my Family Court Order would have granted me had the assessment not been manipulated by my ex. Too late now. I think this will all come back and bite my ex in the ass. I guess they call that karma. We will see.
Rules of Procedure
Well its been a long time since last I wrote. Since my last blog I have been to court various times for various reasons at various levels. I have been to the Landord and Tenant Tribunal, Small Claims Court, Family Courts as well as criminal. If I have ntoiced one thing that is inherant at all levels, is the complete disregard by those given the power to make decisions, to not hold those accountable who do not follow the rules of procedure or at the very least flaunt their total disregard for the procedures simply by attempting to circumvent these procedures, more specifically, not filing something within the prescribed time alloted or cancelling a date, only because they do not like the judge presiding that day.
I had no problem attending a court date to argue costs. Problem I had was that the date that was originally set, was cancelled by the other side, or so I thought, by simply hand delivering, on the night before court, a letter stating they were not pursuing costs at that time. Only to find out that the date went ahead without me and the other side simply scheduled a second date, with a judge that they preferred, to argue costs. The letter they hand delivered to me was completely different than the one they provided the courts indicating they were not pursuing costs. On top of that, the courts had origianlly forced the other side by serving them a Form 39, which simply put, means that if they do not schedule a date to argue costs within a prescribed time, then they could not make motion for costs. So they did schedule a date, only then to, at the last minute cancel it stating they were not going to pursue the matter, then getting that through the back door, bought themselves more time (they already had 9 months) and to in essence get the judge they wanted not the judge scheduled for that original date. I tried to hold them accountable via motion, but it was denied. So much for the Rules of Procedure. I think that for those who have the money, these are the games they can play because they can afford to play them. A lamen like me who has but a simple and perhaps a better grasp of law, just cannot afford to play these types of games. Courts tend to be a rich man's world. I try and will continue to try and hold those accountable when need be. But when you get decisions and those who flaunt the rules making the same decisions you will continue to get the same decisions. Until someone with power decides to make change, nothing will change.
I had no problem attending a court date to argue costs. Problem I had was that the date that was originally set, was cancelled by the other side, or so I thought, by simply hand delivering, on the night before court, a letter stating they were not pursuing costs at that time. Only to find out that the date went ahead without me and the other side simply scheduled a second date, with a judge that they preferred, to argue costs. The letter they hand delivered to me was completely different than the one they provided the courts indicating they were not pursuing costs. On top of that, the courts had origianlly forced the other side by serving them a Form 39, which simply put, means that if they do not schedule a date to argue costs within a prescribed time, then they could not make motion for costs. So they did schedule a date, only then to, at the last minute cancel it stating they were not going to pursue the matter, then getting that through the back door, bought themselves more time (they already had 9 months) and to in essence get the judge they wanted not the judge scheduled for that original date. I tried to hold them accountable via motion, but it was denied. So much for the Rules of Procedure. I think that for those who have the money, these are the games they can play because they can afford to play them. A lamen like me who has but a simple and perhaps a better grasp of law, just cannot afford to play these types of games. Courts tend to be a rich man's world. I try and will continue to try and hold those accountable when need be. But when you get decisions and those who flaunt the rules making the same decisions you will continue to get the same decisions. Until someone with power decides to make change, nothing will change.
Thursday, December 9, 2010
Motion within a motion
Months back I filed a motion for shared custody. This motion was adjourned for a date in January. The problem is, is that my ex still wasn't giving me my full weekend access. I attempted to have the judge clarify my original order that stated I have two full weekends a month. He stated that this motion was not the time or place to hear any submissions and that there was an order in place and if the respondent chose not to abide by it then I had other recourse.
After leaving that court room I stated to my ex that I would pick up my kids on Friday. She said only if you have them back Saturday morning. I said no, I have full weekend access, that includes overnights, Friday to Sunday. She said then don't bother even picking them up your not getting them. It was at that point I went directly down to the court clerks and attempted to get an emergency motion form. The clerk at this time said unless the kids well being was in danger then she could not give me an emergency form. I asked what form I required, after describing the situation. She then gave me an urgent motion form. I filled this out and to make a long story short the following week we had a motion for clarification of my original access order. The Judge granted my ex an adjournment to prepare any submissions for this urgent motion and the motion was adjourned for over a month, however, the Judge actually made a temporary order to clarify my original order for access during this time until the next hearing date. He granted me three weekends that included overnights, and three days during the week.
When the motion/hearing date for clarification arrived I assumed that I would only be speaking on the motion, my motion for clarification. This Judge was a complete ASS. I simply stated what I was asking for, simple clarification of an order that already existed but was vague in terms of specific dates and times. Rather than simply specifying exact dates and times, he began to make faces of disgust when I made my submissions, indicating to me that he thought that my motion was ridiculous. This thought of mine was confirmed when he stated that my motion did not belong here and should not have been allowed. I stated that I explained my situation to the clerk and that she gave me the appropriate forms. He then allowed my exes lawyer make her submissions and her submissions were not even on point. She began huffing and puffing about the safety of the children and that this was an attempt by me to get more time with my girls and not waiting for the shared custody hearing in the new year. I tried to object but was put in my place by the judge telling me not to interrupt and to allow the respondents lawyer to continue.
I can assure you this was not an attempt to get more time with my kids, it was an attempt to get specific times and dates that add up to the time I had already been granted five years ago. Needless to say it was downhill from there. The judge then allowed her to make submissions on having a Child Custody/Access assessment done. I was a bit taken aback. I mean how does a motion for clarification of an already existing order get to submissions on a custody access assessment. Well it did and the judge, without even allowing me submissions on this granted the respondents lawyer and ordered that the forms for this assessment be completed by December 22. He also stated that the cost be shared by both parties. Well that cost is $3000. I attempted to make my objections known. Its not that I objected to the assessment but I did object to the fact that I had to pay half without even making any submissions. The fact of the matter is, is that I am not working at the moment and told him this, he wouldn't listen but stated that perhaps my shared custody motion should be withdrawn if I wasn't serious about it. Wow. So my motion for clarification was ignored. The judge ordered that the previous temporary order continue, but he gave no new dates and times and now, though my days through the week are still set, my weekends are once again up in the air. Other than having the original order that allows me two weekends a month. That both parties have to agree to. So once what happens when we don't agree. The whole idea was to have clarification so that there would be no agreeing or disagreeing. Nope instead back to dealing with an ex that is beyond manipulative. Plus having to submit forms for an assessment and $200 non refundable fee with the forms to be submitted by Dec.22. The fact that I couldn't even give submissions addressing any financial concerns I may have, etc.....For those of you who do read this, know one thing, they say there are rules for the courts and the Judges to follow, but let it be known that they will do what they want, when they want. My experience is that because I am unrepresented and simply representing myself they treat me with disdain and have no respect at all for me or my position. But my ex, who has money and a lawyer were afforded every opportunity to make submissions on something that was not part of MY motion. I can only hope that I can make submissions in January that address my concerns regarding this assessment and its cost. I am all for an assessment etc.....but I am completely appalled at how this happened with no regard for me or my position or the rules of the court for that matter. The Judge being part of the Courts and the System failed me this day, and was an ass to boot.
After leaving that court room I stated to my ex that I would pick up my kids on Friday. She said only if you have them back Saturday morning. I said no, I have full weekend access, that includes overnights, Friday to Sunday. She said then don't bother even picking them up your not getting them. It was at that point I went directly down to the court clerks and attempted to get an emergency motion form. The clerk at this time said unless the kids well being was in danger then she could not give me an emergency form. I asked what form I required, after describing the situation. She then gave me an urgent motion form. I filled this out and to make a long story short the following week we had a motion for clarification of my original access order. The Judge granted my ex an adjournment to prepare any submissions for this urgent motion and the motion was adjourned for over a month, however, the Judge actually made a temporary order to clarify my original order for access during this time until the next hearing date. He granted me three weekends that included overnights, and three days during the week.
When the motion/hearing date for clarification arrived I assumed that I would only be speaking on the motion, my motion for clarification. This Judge was a complete ASS. I simply stated what I was asking for, simple clarification of an order that already existed but was vague in terms of specific dates and times. Rather than simply specifying exact dates and times, he began to make faces of disgust when I made my submissions, indicating to me that he thought that my motion was ridiculous. This thought of mine was confirmed when he stated that my motion did not belong here and should not have been allowed. I stated that I explained my situation to the clerk and that she gave me the appropriate forms. He then allowed my exes lawyer make her submissions and her submissions were not even on point. She began huffing and puffing about the safety of the children and that this was an attempt by me to get more time with my girls and not waiting for the shared custody hearing in the new year. I tried to object but was put in my place by the judge telling me not to interrupt and to allow the respondents lawyer to continue.
I can assure you this was not an attempt to get more time with my kids, it was an attempt to get specific times and dates that add up to the time I had already been granted five years ago. Needless to say it was downhill from there. The judge then allowed her to make submissions on having a Child Custody/Access assessment done. I was a bit taken aback. I mean how does a motion for clarification of an already existing order get to submissions on a custody access assessment. Well it did and the judge, without even allowing me submissions on this granted the respondents lawyer and ordered that the forms for this assessment be completed by December 22. He also stated that the cost be shared by both parties. Well that cost is $3000. I attempted to make my objections known. Its not that I objected to the assessment but I did object to the fact that I had to pay half without even making any submissions. The fact of the matter is, is that I am not working at the moment and told him this, he wouldn't listen but stated that perhaps my shared custody motion should be withdrawn if I wasn't serious about it. Wow. So my motion for clarification was ignored. The judge ordered that the previous temporary order continue, but he gave no new dates and times and now, though my days through the week are still set, my weekends are once again up in the air. Other than having the original order that allows me two weekends a month. That both parties have to agree to. So once what happens when we don't agree. The whole idea was to have clarification so that there would be no agreeing or disagreeing. Nope instead back to dealing with an ex that is beyond manipulative. Plus having to submit forms for an assessment and $200 non refundable fee with the forms to be submitted by Dec.22. The fact that I couldn't even give submissions addressing any financial concerns I may have, etc.....For those of you who do read this, know one thing, they say there are rules for the courts and the Judges to follow, but let it be known that they will do what they want, when they want. My experience is that because I am unrepresented and simply representing myself they treat me with disdain and have no respect at all for me or my position. But my ex, who has money and a lawyer were afforded every opportunity to make submissions on something that was not part of MY motion. I can only hope that I can make submissions in January that address my concerns regarding this assessment and its cost. I am all for an assessment etc.....but I am completely appalled at how this happened with no regard for me or my position or the rules of the court for that matter. The Judge being part of the Courts and the System failed me this day, and was an ass to boot.
Subscribe to:
Posts (Atom)