1 ) Divorce in Canada is an essential service that preserves the public order by allowing that incompatible people are not forced to remain together, and protects the safety and rights of children. The ultimate provider of these services is the Canadian legal system as prescribed by both federal and provincial law.

2) It is the duty of the courts to uphold the rule of law and the rights of Canadian citizens, however inadequacies in the legislation and it’s implimentation have resulted in a denial of these rights and can effectively deny access to justice in matters of fundamental interest. In particular

a ) life

b) liberty

c) security

d) equality

e) the welfare of children

e) the rights to family of both parents and children

f) The determination of both private contractual obligations arising from marriage and those . attached to the action by government.

Collectively these ideas comprise fundamental interests to the individual and include some of the most basic human needs for example ; health, housing, education, sustenance, privacy, even companionship, communication, and social values.

3) The divorce system does not comply with the Canadian Constitution and obligations under international human rights laws because it ;

a) is inconsistent with the rule of law, a foundational constitutional principle which . ….. guarantees :

b) is based on an impercise discretion and criteria allotted to the judiciary which is . … …… unconstitutionally vague.

4) A plethora of legislation combined with complex administrative procedures can put this out of the reach of poor people. In fact a full deliberation often requires numerous professionals from lawyers to custody assessors, property assessors, forensic accountants, … Even middle class people may quickly exhaust financial resources and be denied effective representation due to their income. This is clearly contrary to the interests of the participants, their children, society in general, and contrary to the stated purpose of the legislation.

5) The Divorce Act and subsidiary legislation have been interpreted as ameliorating the historic disadvantage of females. This presumption violates equality provisions of the Charter of Rights and Freedoms, and equality before the court as enshrined in the 1867 Constitution Act through the rule of law.

6) The Divorce Act and subsidiary legislation have been given judicial presumptions as regards the custody and access to children. These presumptions ultimately benefit only females despite being contrary to the gender neutral legislation and constitutional rights of equality.

7) Discretionary clauses in the legislation have been interpreted as allowing judges to violate a citizens constitutional rights and rights under the law.

8) The divorce process has been interpreted as failing to protect a citizens rights as it relates to litigation between private parties.

9) Administrative and courtroom procedures give unequal benefits to lawyers arbitrarily favoring them over the actual participants and resulting in discrimination against self represented parties.

10) The plaintiff brings this claim in the interests of himself and all Canadians. Marriage and divorce are a fundamental private interest. Sometimes a definitive aspects of a persons life. It is of major public importance that the government would attach complex legislation and procedures to such universal key events which would actually preclude the average citizen from managing their own affairs, or presenting a full answer and defense before the courts. It is also of great public importance that this system has resulted in undue enrichment of the legal sector, and lacks the proper safeguards to protect private rights and prevent inequitable interpretation of equitable measures.

11) The plaintif is a private individual. He has a university education in arts and sciences. He was married for over 20 years and was the stay home partner. He is the father of a 6 year old boy. He was recently divorced and had over 60 court appearances. He was purposefully denied a fair trial in his divorce by the Superior Court of Justice. The court has made false rulings he was a millionaire and failed to correct the errors on appeal. His life has been destroyed by these rulings and he is now threatened with having his family home siezed and even being imprisoned by a government agency. He has been denied being a parent to his son and the court has ruled his son is better off in fulltime daycare instead of with his own father.

12) The defendant, Her Majesty the Queen in Right of the province of Ontario, the Provincial Crown, represented by the Attorney General of Ontario is responsible for administrative procedure and court personnel. The defendant is also responsible for the implimentation of government policies and bears the ultimate authority for the provincial court system and it’s processes, .including duty councils and legal aid.

13) The defendant, the Federal Crown represented by the Attorney General of Canada and Minister of Justice has the power of federal constitutional responsibility over marriage and divorce. Also all criminal matters. Federal efficacy in the provincial court system is often brought through copathetic policy, or fiscal arrangements. This is the case with marriage and divorce where legislation is intertwined and jurisdiction between various aspects is divided. The defendant is the ultimate federal authority for policy and directives.

14), The last 3 decades have witnessed a social revolution in terms of the emancipation of women and the incidence of divorce. Divorce was once rare but now close to half of all marriages breakdown. It has changed the face of the family unit. Single parent families are now common. A whole new generation who are the children of divorce have now reached maturity. It is a social phenomena that cannot be ignored.

15). Legislation regarding marriage and divorce has also proliferated. The change itself was largely brought about by the 1970 Divorce Act which expanded the grounds for divorce and eliminated requirements of fault. It and subsequent legislation also attempted to standardize the results across the country by limiting the discretion of the courts. Specific formulas were developed for the division of property, child support, and currently guidelines are being proposed for spousal support as well.. At present divorce in Ontario is regulated directly by ;

A number of other pieces of legislation may be applicable either directly or indirectly. Marital status is one of the most common questions in identifying a citizens characteristics. It may affect everything from car insurance policies to income tax. Marital status itself appears to be undergoing redefinement by the legislature to include homosexual couples. Some legislated and private contractual obligations inherent in marriage have also been extended to common law couples by the courts.

16) Although marriage breakdown is commonplace it is estimated only somewhere in the region of 5 to 10 % ultimately reach trial in court. A much larger proportion require some pretrial adjudication. All divorces must be reviewed and endorsed by the court. This may account for somewhere in the realm of half of the courts workload. The cost of a divorce is highly variable. An amiable one could cost less than 5 K per person but a contested custody battle is potentially open ended. It is unlikely a simple action could go to trial for less than 25 K per participant total cost. Variations must also be obtained from the courts. They can be almost as costly as trial depending on the complexity. Appeals more costly. The incidence of self representation is reportedly increasing. It is unclear if this is a matter of personal choice or a result of the increasing costs and lack of availability of assistance.

17).Reported custody decisions from the courts indicate that over to 85 % of the time the female is awarded custody. The legislation is gender neutral. Judicial presumptions such as the tender years doctrine and primary caregiver philosophy have created this situation. Joint custody decisions in contested actions are rare due to a judicial presumption that conflict between the parents is not in the childs best interests. This presumption is also used to negate legislation that a childs time with both parents be maximized. Yet another judicial presumption allows that a successful interim custody leads to full custody, so custody decisions are in effect most often made at preliminary hearings which are sometimes done ex parte. The definition of what a successful interim custody is can be highly variable and is left to the discretion of individual judges. Leave to appeal interim decisions is rarely granted as there is a presumption that additional actions are undesirable. Appeals are rarely granted as this could also vastly increase legal actions and extend disputes. The legislature has defined that a change of circumstance is necessary to vary an order but has left it to the courts discretion to define what a change of circumstance is.

18). The allotment of custody to females obviously reflects that child support payments are made by fathers. Child support payments though required to be set by the guidelines, may be suplimented through extraordinary expenses or imputation at discretion of the court. Amounts may be imputed from assets, or if the payor is earning less than the court feels is his potential they may declare him intentionally unemployed and increase the payments on that basis. Income of the custodial parent is not considered in assessing payments unless the payor has access more than 40 % of the time. Most provinces have government affiliated collection agencies that collect child support debts. They are empowered to seize property, garnishee income, inflict punishments such as drivers license suspensions, and even imprison debtors. Payments of spousal support are still unlimited at the courts discretion. Incidents of spousal support being awarded to males is cited as negligible by the Supreme Court of Canada. Precedents have allowed for total combined support payments to exceed a payors income.

19). Current initiatives are likely to create greater demand on court time, and renumeration for the legal profession. Inclusion of homosexuals in marriage will have far reaching legal effects, in particular with adoption and divorce. The most recent domestic assault enactments have created a situation whereby a party wishing a divorce may gain invaluable interim advantage by making false allegations. Necessitating not one, but 2 lawyers, and court appearances in both family and criminal court for the other party.. Such initiatives increase cost, complexity, and the workload of the court. In 2000 it was estimated that roughly 100 domestic violence cases per month went through the Ottawa courthouse. The Victims Witness, a government organization that assists the alleged victim, and is funded proportionally, suggests statistics show that incidents are on the rise. Legal aid and related services have been declining. Coverage is not extended for domestic violence as it is deemed that the accused will not be imprisoned. Public funds are only spent assisting allegations. The system itself is being overtaxed by a fraction of potential demand.

20) The effects have been cited as worse on the poor. Especially women. Rumor says poor women are actually more likely to receive legal and social assistance than poor men. A question that could only be answered by access to Legal Aids client files. The average middle class may be as badly affected or worse. They have striven hard to achieve modest lifetime savings destined for their children or retirement. Savings are quickly depleted. Their employment income precludes them from eliligibility for aid. They must go into debt or become self represented to continue. The court may even saddle them with bankruptcy to satisfy a discretionary cost penalty subsidizing the other sides lawyer. The children are the big losers. A childs university tuition can be easily lost within a year. The ambivalence this creates may be worse than the circumstances that caused the divorce.

21) The plaintiff was the stay home partner in his marriage. His high income earning ex wife wished a divorce so she accused him of domestic assault to gain interim custody of their child and possession of the family home. He spent the next month in a homeless shelter because she could not be contacted to return his wallet and identification. She used these allegations throughout the process to maintain he was an unfit father and a threat to her and the child. Including lying under oath that he had been convicted to obtain a permanent restraining order in family court. Trying to have him arrested several times for allegedly violating conditions of his release. Precluding him from obtaining his possessions which to date are still partially retained. Scheduling an emergency concurrent hearing in family court to have his pleadings struck. And in general using these provisions to increase complexity of serving documents and child exchanges. After 3 years and over 30 court appearances the plaintiff was finally acquitted of the charges in criminal court but the damage in family court apparently cannot be undone.

22). With no evidence to back the claim, the family court has accepted the plaintiffs ex wifes word that he is a millionaire and refused to view his evidence proving this is not true. They have also accepted his ex wifes words over that of a court appointed custody assessor that his time with his son must be limited to insignificant. Equalization and child support were imputed from fictitious assets. He was declared intentionally unemployed. His case was prejudiced prior to any trial occurring and he was denied appeal of these prejudices in favor of a trial at which he was not allowed to participate. And since he was not allowed to participate he was also denied appeal of the trial. The plaintiff entered this process with a rational and reasonable expectation that he would be treated fairly in accord with the laws and his rights respected. It did not occur.

23). In particular the plaintiffs case was prejudiced prior to trial on Apr 25 2003 when DeSousa J refused to excuse him from an emergency hearing and used her discretion to hold the hearing ex parte rather than permit even a minor rescheduling. With no evidence before her she accepted the word of the plaintiffs ex wife and ruled he had violated 4 court orders relating to financial disclosure and struck his pleadings. She also refused to view his evidence that he had complied. He was refused appeal and denied motions to reinstate his pleadings which were dismissed unheard. 3 weeks later the same judge then upheld her own ruling and conducted an uncontested trial where the plaintiffs evidence was again ignored. And it was ignored again on appeal as it had not been before the trial judge. All subsequent hearings have simply echoed her untrue comments that he violated various court orders.

24). In addition the plaintiffs case was prejudiced prior to trial on Nov 27 2002 by Bvers J at the parties Settlement Conference. With no request for such action from either party he used his discretion to arbitrarily more than triple the plaintiffs child support payments and remove his access to his son for overnights, weekends, and holidays. The plaintiff was not allowed to make arguments or present evidence. He attempted to appeal. Leave was denied though it was conceded he may have been subject to procedural unfairness but this was best resolved at trial. A trial he was not allowed to participate in and at which support and access was once again set without viewing his evidence. He received 6 cost penalties concerning these 2 items and was then given a 36 K cost penalty for being dishonest at a 3 day uncontested trial. Another 10 K cost penalty when his appeal was dismissed.

25).The plaintiff has been denied procedural fairness, and equality before the court as demanded by the Rule of Law. His s.7 Charter rights to liberty and security have been violated without recourse of the fundamental principles of justice. His s. 11, s.12, s.15, and s.28 Charter rights have also been violated. His complaints that his constitutional rights were violated were simply ignored on appeal to the highest court in the province.

26) Also featured in the trial judgement is a 100 K math error which could cause the plaintiff to lose his parents family home. The error apparently could not be rectified on appeal like the rest of the judgement, or the judgement striking his pleadings, or the Nov 27 2002 Settlement Conference ruling. Similarly support in the trial judgement was not set in accord with the guidelines or rectified on appeal. In essence the court has affirmed it’s right to violate the laws and the rights of the parties that appear before them by this ruling.

27). Since the errors in the trial judgement are obvious and undeniable it can only be concluded that the court has purposefully chosen to discriminate against him and deny him the law. As simple as refusing to rule on his grounds of appeal and ignoring claims his rights were violated. The plaintiff concludes that judges will not admit their colleagues made errors. When the court purposefully chooses to discriminate against a citizen a public enquiry should be held. They have failed in their duty to provide justice to those that appear before them. The plaintiff submits that the government has failed in it’s obligation to provide a proper essential public service.

28). The Federal Crown is obligated to provide for both criminal and civil matters for the following reasons ;

a). The Federal Crown has jurisdiction over criminal matters pursuant to s.91 ( ) of the …… Constitution Act, 1867

b). The Federal Crown has jurisdiction in matters pertaining to marriage and divorce ……….. pursuant to s.91(26) of the Constitution Act 1867

c). The Federal Crown has jurisdiction for a wide range of civil affairs such as immigration and refugee matters pursuant to s.91 ( 25) of the Constitution Act 1867, and old age pensions pursuant to s.94 A of the constitution Act 1867

d). The Federal Crown possesses spending powers pursuant to ss 91 (13), 91 (1A) and 106 … of the Constitution Act 1867 which permit it to attach conditions to transfer payments to …….. the provincial crown and allows for cost sharing arrangements entered into with the …….. Provincial Crown. Legal Aid is an example of one of these services.

e). The Federal Crown has a joint responsibility to provide essential public services …………. pursuant to s.36 (1)© of the Constitution Act of 1982

f). The Federal Crown has a responsibility for peace, order, and good government pursuant …… to s.91 of the Constitution Act 1867

g). The Ministry of Justice assist various government departments in developing, …………. reviewing, and reforming laws, and policy. Specifically with respect to it’s ………………. constitutionality.

h). The Ministry of Justice works with the provinces to impliment family related legislation …… such as the Child Support Guidelines

i). The Ministry of Justice has a mandate to promote respect for rights and freedoms and to ….. make Canada a just law abiding society with a fair and efficient system of Justice.

j). The Federal Crown and Ministry of Justice have a responsibility to confer on laws and …… policies with the provinces and attempt to establish uniform standards across the ……….. country that provide even treatment under the law for citizens while respecting regional …… disparities.

k). The Federal Crown and the Ministry of Justice have a responsibility to see that …………. constitutional rights are protected and enforced

l). The Federal Crown and the Ministry of Justice have a responsibility to ensure equal ……. access to the courts and protect the foundational constitutional principles of the rule of ….. law, equality before the courts, and the independence of the judiciary.

m) The Federal Crown and the Ministry of Justice have a responsibility to fulfil Canada’s …… obligations under international human rights law.

29). The Provincial Crown is obligated for all duties regarding the court and administration of justice that does not fall to the Crown and Ministry of Justice. This includes ;

a). The Provincial Crown possesses the jurisdiction for civil and property rights in the ………. province pursuant to s.92 (13) of the Constitution Act 1867

b). The Provincial Crown possesses jurisdiction for the administration of justice in the

………. province pursuant to s.92 (14) of the Constitution Act 1867

c), The Provincial Crown possesses jurisdiction for the in the

………. province pursuant to s.92 ( ) of the Constitution Act 1867

d). The Provincial Crown has joint responsibility to provide essential public services …………. pursuant to s. 36 (1)(c) of the Constitution Act 1982

e). The duties of the Attorney General are listed in s.5 of the Attorney Generals Act as ……. follows ;

The Attorney General
(i) is the Law Officer of the Executive Council;
(ii) shall see that the administration of public affairs is in accordance with the law;
(iii) shall superintend all matters connected with the administration of justice in …….. Ontario;
(iv) shall perform the duties and have the powers that belong to the Attorney ……… General and Solicitor General of England by law and usage, so far as those ………. powers and duties are applicable to Ontario, and also shall perform the duties …. and powers that, until the Constitution Act, 1867 came into effect, belonged ….. to the offices of the Attorney General and Solicitor General in the provinces ….. of Canada and Upper Canada and which, under the provisions of that Act, are …. within the scope of the powers of the Legislature;
(v) shall advise the Government upon all matters of law connected with ……………… legislative enactments and upon all matters of law referred to him or her by ………… the Government;
(vi) shall advise the Government upon all matters of a legislative nature and ………….. superintend all Government measures of a legislative nature;
(vii) shall advise the heads of ministries and agencies of Government upon all ………. matters of law connected with such ministries and agencies;
(viii) shall conduct and regulate all litigation for and against the Crown or any …… ministry or agency of government in respect of any subject within the ………… authority or jurisdiction of the Legislature;
(ix) shall superintend all matters connected with judicial offices;
(x) shall perform such other functions as are assigned to him or her by the ……… Legislature or by the Lieutenant Governor in Council.

f). The Provincial Crown as an employer extends statutory exemptions of no fault personal liability to it’s court employees through s. of the Crown Liability Act, and

g). The Provincial Crown is responsible to ensure equal access to the courts and protect the … foundational constitutional principles of the rule of law , equality before the courts, and …. the independence of the judiciary.

h). The Provincial Crown has the responsibility to ensure that constitutional rights are ……. protected and can be enforced.

i). The provincial Crown has the responsibility to fulfill Canada’s obligations under ……… international human rights law.

30). Modern liberal democracies are founded upon several major theories. The legitimacy of the government is derived from the people. A social contract exists between people and state. This contract in essence promises that the people will obey the government and in exchange the government will impose order and protect their rights. Other key concepts involve government being representative and responsive , the rule of law, and a constitution.

31). In it’s simplest terms representative and responsive means the government will hold elections and represent the will of the people. The rule of law means that citizens will not be treated arbitrarily and conflicts will be fairly and impartially resolved in accord with laws or rules that have been derived through tradition or public consensus. Administering the rule of law is a primary function of the judiciary and courts. A constitution is basically a statement of the rights and obligations of the government and citizens. It typically guarantees and defines a citizens rights. In doing so it protects the integrity of the state itself from any given political regime who might attempt to undermine these basic philosophies. In most democratic systems it is the judiciary and courts who are charged with upholding and enforcing the constitution.

32). Canada fits the basic pattern described above. Our Constitution has been described as a ‘ living tree ‘ with the roots imported from Britian , our colonial parent. The constitution itself cannot be said to be comprised of a single document however the 1867 British North America Act ( now Constitution Act 1867 ) and the Constitution Act 1982 are the primary manifestations. The Constitution Act 1982 contains the Charter of Rights and Freedoms which expressly delineates the rights of citizens in a manner similar to the constitutions of other liberal democratic states. Directly and indirectly the Canadian constitution also enshrines the judiciary and court system as responsible for upholding the rule of law, and guardians of the constitution and the rights contained therein.

33). In response to these most important roles the judiciary has developed many characteristic features. Independence of the judiciary may be the most important. Independence is an encompassing concept which even means the government must not be in a position to influence their salaries and pay. So no regime may enact measures that are unconstitutional and pressure the judiciary into acceptance. The judiciary must be independent of government so they are free to rule against government and protect the citizens rights from encroachment.

34). In contrast, the plaintiff maintains the court has violated his rights. And that this violation appears to be purposeful since he raised the issues on appeal and they were ignored. Such a violation would be a most serious situation since it is the court who is specifically empowered to address violations. It would be a violation of the very social contract itself and an abdication of the courts primary role as protectors of the constitution and the rule of law. The plaintiff would be justified in asking the government to address such a situation. It transcends any debate between parties and goes to the very foundation of our liberal democratic principles.