ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 4228/11
DATE: 20120413

BETWEEN:

PETER J. HAJDU
Appellant

– and –

DIRECTOR, FAMILY RESPONSIBILITY OFFICE for the benefit of Nancy T. Hajdu
Respondent

Peter J. Hajdu, On His Own Behalf
Heather Puchala, for the Respondent

HEARD: March 12, 2012

APPEAL reasons for judgment

coats j.

1The Appellant appealed the order of the Honourable Justice Zisman of the Ontario Court of Justice dated July 12, 2011. This is a final order made at a default hearing. I have reviewed and considered the following:

1. The Appellant’s Factum;
2. The Appellant’s Appeal Record;
3. Factum of the Respondent Director, Family Responsibility Office; and
4. Respondent’s Appeal Record

2In addition, I heard oral submissions of the Appellant and Ms. Puchala, counsel for the Family Responsibility Office, on March 12, 2012.

3The Appellant has 12 grounds of appeal in the Notice of Appeal, Form 38. I will go through each ground of appeal, as well as additional issues the Appellant raised in the oral submissions. The Appellant’s appeal is dismissed on the following analysis of the grounds for appeal.

4Grounds 1, 2 and 3 of the Appellant’s Notice of Appeal relate to duty counsel and are as follows:

1. Justice Zisman stated within the endorsement dated July 12, 2011 that the Respondent (now the Appellant) was represented by duty counsel;
2. The Respondent was not represented by duty counsel;
3. Duty counsel did not make themselves available at any point prior to or during proceedings.

5On review of Justice Zisman’s handwritten endorsement of July 12, 2011, there is a notation that the Respondent “Declines Duty Counsel”. It does not say he was represented by duty counsel. In the transcript on page 1 Justice Zisman said to the then Respondent, “Okay, Mr. Hajdu, you’re present. Did you want to speak to duty counsel?” The then Respondent replied, “No, thank you, Your Honour”. Justice Zisman then said, “All right. So, I’ll just make a note ‘declines duty counsel’”. This is precisely what she did. These 3 grounds of appeal are therefore without any merit. The Appellant (then Respondent) was offered the opportunity to speak to duty counsel and declined, and the endorsement is accurate.

6Ground 4 of the Notice of Appeal is “Justice Zisman was practicing law from the bench”. A review of the transcript reveals that at no point during the hearing was Justice Zisman practicing law. The Appellant states she was practicing law when she, at the beginning of the transcript “did with force attempt to define the presence of the Appellant and distinguish Appellant identity without even asking the Appellant” (page 5 of Appellant’s Factum). Justice Zisman’s introductory efforts to establish who was present before her were entirely appropriate. The Appellant does not wish to be identified by name. As the Appellant states in Part 1: Identification of the Appellant’s Factum, it is the Appellant’s authorized representative who appears in court. The relevant part of the Factum is as follows:

The Appellant is a corporate entity and may be further defined as an ens legis whose appellation is a tradename/trademark strictly protected by international copyright law. Appellant corporate office:

52623-1801 Lakeshore Road West Unit 6
Mississauga, ON L5J 1J0

The Appellant’s authorized representative is a natural man as created by God, Sovereign, subject to no one, and shares the same internationally copyright protected tradename/trademark as the Appellant and shall be strictly referred to as “Secured Party.”

Secured Party address:

1655 Sandgate Crescent Unit 15
Mississauga, Ontario L5J 2E3

7The Appellant asserts that Justice Zisman practiced law such that it was necessary for the Appellant to ask if the proceeding had commenced. It was clear from the start that the proceeding had commenced. On page 3 of the transcript, the then Respondent asks, “...has this proceeding started?” Justice Zisman answered “Yes” and provided a detailed explanation as to why she had reviewed in court what had happened previously in the default matter.

8The Appellant in his Factum argues that Justice Zisman practiced law from the bench when she defined an exhibit and named it on behalf of the Respondent. Justice Zisman accepted from FRO counsel a statement of arrears as an exhibit. She is entitled to do so. She did not in any way name it on behalf of the Respondent. She received it from FRO counsel and this is clear from the record.

9Grounds 5 and 6 of the Notice of Appeal are related and are as follows:

5. Justice Zisman did with haste and without making a reconvening time or date adjourned the matter of July 12 th and abandoned the court room, thereby, logically and legally dismissing the matter entirely.

6. Justice Zisman re-entered the previously abandoned court room and commenced, without notice to the Respondent, the creation of a default judgment completely cognizant that the Respondents Authorized Representative was still within the court house and directly outside the court room.

10From page 6 of the transcript it is clear that there was a brief break in the proceeding. Justice Zisman stated, “We’ll take an adjournment now. I will ask you to control yourself, thank you”. This immediately followed Justice Zisman’s efforts to ascertain whether the then Respondent (now Appellant) had received a blank copy of the dispute and a financial statement with the Notice of Hearing. Justice Zisman asked the Respondent this three times. The Respondent’s reply was completely unresponsive to Justice Zisman’s questions. The relevant portion of the transcript is as follows:

THE COURT: ...So, what you are required to file in response to the notice of default is a dispute and a financial statement. This document is not any of that, so there’s no affidavit that’s filed in this proceeding. Do you have a blank copy of the dispute and a financial statement that’s required to be filed in these proceedings? You should have received those when you were served with the notice of hearing....

PETER HAJDU: For the record, Your Honour....

THE COURT: Did you receive those documents, sir?

PETER HAJDU: Without prejudice, I am a natural man...

THE COURT: Did you receive those documents?

PETER HAJDU: ...as created by God. Sovereign without subject, I am neither subject to any man....

THE COURT: We’ll take an adjournment now. I will ask you to control yourself, thank you.

CLERK REGISTRAR: All rise.

PETER HAJDU: The judge has left the court; has abandoned the court. I, as a sovereign, claim authority and dismiss the matter.

CLERK REGISTRAR: No, you cannot.

11On page 7 of the transcript Justice Zisman clarifies on the record what transpired as follows:

All right. So, just for the record, Mr. Hajdu began to recite parts of his affidavit dealing with his refusal to accept, I suppose, the jurisdiction of this court or any court to deal with this matter, and I left the bench as that was not responsive to the issues before the court. I’ve now returned to the bench about five minutes later, and he has now left the courtroom. Thank you. All right, so how do you want to proceed now?

12On the same page of the transcript it is noted that the Appellant just re-entered the courtroom.

13Justice Zisman did not abandon the courtroom. She took a brief recess following the Respondent not answering her questions and reconvened five minutes later. The matter was not dismissed by the Justice taking a brief recess. The Respondent re-entered the courtroom shortly after Justice Zisman reconvened court and the Respondent was present for the remainder of the proceeding. There is nothing in the transcript to suggest that Justice Zisman was cognizant that “the Respondents Authorized Representative”, which is what the Respondent refers to himself as, was still within the court house. In any event, the Respondent re-entered the courtroom shortly after court re-convened. The Respondent could have waited in the courtroom. Nothing of significance transpired in the Respondent’s absence.

14Ground 7 is that “The Court was partial to the Applicant”. In Ontario (Director, Family Responsibility Office) v. Samra , 2008 ONCJ 465 , the court confirms that the onus is on the party alleging judicial bias to establish that the two-fold test for bias is met; firstly, the evidence of apprehension of bias is in the judgment of a reasonable person, and the apprehension of the bias itself must also be reasonable in the circumstances of the case. There is a strong presumption of judicial impartiality that can only be displaced in the presence of clear and cogent evidence.

15The Appellant has not made out any cogent evidence to support the allegation of bias or apprehension of bias. A review of the transcript does not support that the court showed partial treatment in favour of the Director. The strong presumption in favour of judicial impartiality has not been rebutted.

16It is important in reviewing this ground of appeal, “The Court was partial to the Applicant” to review briefly the history of the default proceeding. The first appearance in the default hearing was on March 22, 2011. The Appellant was present. The endorsement notes that the Appellant (then Respondent) is intending to bring a motion to change the final order (of Justice Van Melle dated September 26, 2008), which is the order FRO was attempting to enforce in the default hearing (There was also an earlier interim order of September 21, 2006). On March 22, 2011 with the consent of FRO, the default hearing was adjourned to July 12, 2011 at 9:00 a.m. to permit the Respondent to bring a Motion to Change. The July 12, 2011 transcript reveals that the Appellant brought a motion to rescind Justice Van Melle’s order in its entirety and was not successful. The Appellant attended at the July 12, 2011 default hearing without having filed any dispute to the default hearing or a financial statement. The Appellant was unresponsive when asked if he had received blank copies of these documents. The Appellant made no submissions on the substance of the default hearing. Justice Zisman then proceeded to make her decision on the material before her. There was no partiality to the Respondent on the appeal (FRO).

17I note that prior to the March 22, 2011 attendance at the default hearing the Appellant (then Respondent) filed an affidavit sworn March 17, 2011 and an Affidavit of Truth with several exhibits. These are contained in the Appellant’s Appeal Record. These documents do not deal with the substance of the default hearing. There is no financial statement, proof of income or a default dispute.

18The 8 th ground of appeal is that “The court has a direct interest in this matter”. This is a serious allegation and the transcript and documents in the Appellant’s Appeal Record offer nothing in support of this allegation and ground of appeal.

19Grounds 9, 10 and 11 are somewhat related and are as follows:

9. The court would not state its jurisdiction;

10. The court was operating under the color of law;

11. The court was operating in the absence of law.

20Clearly the Ontario Court of Justice has jurisdiction to hear a default hearing. If the Respondent had questions about the statutory authority for the court to convene a default hearing, he should not have declined to meet with duty counsel. The statutory authority for the Director to commence a default hearing (s. 41(1) of the Family Responsibility and Support Arrears Enforcement Act ), the powers of the court (s. 41(10) of said Act ) and the jurisdiction of the Ontario Court of Justice to hear a Notice of Default and make a default order (s. 41(25) of said Act ) are correctly set out in the Director’s Factum.

21A Notice of Default was validly commenced by the Director. The Appellant was properly served by a substitutional service order. The Appellant was in attendance for both hearings on the Notice of Default on March 22, 2011 and July 12, 2011. The Appellant is subject to the jurisdiction of the Ontario Court of Justice, and is therefore subject to the Final Default Order by Justice Zisman dated July 12, 1011.

22Justice Zisman was not acting under colour of law or in the absence of law and these grounds of appeal are entirely without merit. While Justice Zisman was finalizing her endorsement (page 16 of the transcript), the Appellant made a statement about jurisdiction, including the Appellant’s understanding that the court is sitting as an admiralty jurisdiction and “is a coloured court”. Justice Zisman had no obligation to respond to same.

23The final ground of appeal in the Notice of Appeal, ground number 12, is that “The court was in violation of international copyright law”. The Appellant filed Exhibit 1 in the appeal to prove that the Ministry of Attorney General in 2008 had copies of the Appellant’s documents for the Appellant’s 2008 appeal to the Divisional Court which contained notice of the copyright issue.

24The Appellant has entered into a Security Agreement with himself, purporting to divide himself into two people. The Appellant alleges that Peter Janos Hajdu©, is the debtor who is the subject of the support action, a person who has been copyrighted. The secured party is a “natural man as created by God”, who has been granted a $1 billion security interest over the possessions of Peter Janos Hajdu, the debtor, under a Security Agreement dated August 17, 2001. The debtor purports to have transferred all of his possessions to the creditor. In addition, the debtor and creditor entered into a Hold Harmless and Indemnity Agreement dated August 17, 2001 that protects the creditor from any of the debtor’s liabilities.

25The Appellant claims that the copyrighting of himself carries fees for each use of the Appellant’s copyrighted trade-names. The secured party creditor Peter Janos Hajdu© has been granted a security interest in those fees. The Appellant’s ground of appeal is that Justice Zisman violated international copyright law. In the Applicant’s Factum, he seems to go further and argue that because of the copyright and security agreement the original court order and default order are not enforceable against the Appellant as “The Secured Party has never consented to any third party involvement in his marriage...” (page 3 of the Appellant’s Factum). On page 7 of the Appellant’s Factum, the Appellant clarifies that one ground of his appeal of Justice Zisman’s order is that the “Secured Party did not consent to any determination of the court” and that he advised Justice Zisman of this and that Justice Zisman had notice of this and therefore her decision is void under the Uniform Commercial Code .

26The Appellant is not the first person to have taken this position in a civil action for failure to meet a debt obligation. In Re: Mercedes-Benz Financial v. Kovacevic , 2009 9423 (ON SC) , [2009] O.J. No. 888 (ON. S.C.) the Defendant was found in contempt of court after he failed to return a car to the Plaintiff that he stopped making payments on pursuant to a sale agreement. At his sentencing hearing, the court described his position at paragraph 14 as follows:

He asserted that as a “sovereign man” he was not subject to the authority court, and filed a Claim-of-Right and Commercial Security Agreement in which he purported to split his person into two, with his new “flesh and living blood man” enjoying the benefits of all Mr. Kovacevic’s worldly goods, but conveniently unencumbered by any world debt which Mr. Kovacevic left parked with his “juristic person/strawman/legal entity”, whom he refused to recognize.

27It appears that the Appellant is arguing that the law only applies to the debtor part of himself, and not the “natural man” secured creditor part who has control over his possessions. However, the law does not distinguish between his debtor side and his creditor side. As explained in H er Majesty the Queen v. Klundert 2008 ONCA 767 () , 93 O.R. (3d) 81 (ON. C.A.), at para. 19 , in reference to the Income Tax Act, “the Act does not distinguish between persons and natural persons. The definition of “person” in the Act includes human beings of which specie the Respondent belongs”. Though the definition of “person” under the Income Tax Act does not specifically state that it includes “human beings”, the court infers this.

28The Family Responsibility and Support Arrears Enforcement Act in s. 1(11) defines a “payor” as “a person who is required to pay support order”. Similarly, under the Divorce Act , the legislation governing the Appellant’s support order, a “spouse” means “either of two persons who are married to each other”. Just as the definition of “person” under the Income Tax Act includes human beings, here too the definition includes human beings of which the Appellant is one.

29The Appellant’s attempt to divide himself into two persons to avoid the application of a support order and corresponding support enforcement order does not in fact protect him from their effect.

30The Appellant’s argument that he would be in violation of his legal obligation to his secured creditor if he were to meet the financial demands of the Final Default Order is unsupportable. The Appellant has created a false construct to avoid paying support for his children.

31The Appellant’s assertion that the Director or the court was in breach of copyright law throughout the default hearing is without merit. The Director was enforcing a valid support order when it issued a Notice of Default against the Appellant. The Director’s claim was against the Appellant support payor and not against the “literary” work copyrighted by the Appellant.

32The Appellant raised in his Factum and oral argument a new ground of appeal. For a period of time, Nancy Hajdu assigned the support order to the Ministry of Community and Social Services. The Applicant was served with the Assignment. It is at tab 41 of the Appellant’s Appeal Record. The Assignment does not affect the Appellant’s obligation to pay or the Director’s role in enforcement. There is no merit to this ground of appeal.

33The Appellant also raised in his Factum a further ground of appeal. The Appellant argues that the Director should have exercised his/her discretion and refused to enforce the support order. The Appellant argues that attempts to enforce are unreasonable, impractical, malicious and not in good faith.

34Section 7(1) of the Family Responsibility and Support Arrears Enforcement Act permits the Director to refuse to enforce a support order or support deduction order. The Director has not refused to enforce the support order in this matter. As set out in Gaal v. The Director, FRO , an unreported decision of Justice McGee of the Superior Court of Ontario (Family Branch) dated September 15, 2011, Court File No. FC-08-30315-0000, “...the discretion whether to enforce belongs to the Director alone - it cannot be the subject of a court order”.

35The Appellant further argues in his Factum (page 9) and orally that “the terms of incarceration are so excessive as to outrage standards of decency and constitute cruel and unusual punishment”. He suggests that the order could create a perpetual state of incarceration whereby he would automatically be incarcerated for 30 days each month upon the accrual of support. This is an additional ground of appeal.

36The incarceration term attached to the Final Default Order of Justice Zisman would not create a perpetual state of incarceration and does not constitute cruel and unusual punishment.

37The term of incarceration does not occur “automatically” as asserted by the Appellant. As set out in Rule 32 (14) and (15) of the Family Law Rules , the Director must bring a motion for a warrant of committal with an affidavit in support of the warrant of committal. This must be on notice to the Appellant by service by ordinary mail to his last known address or as set out in his materials, pursuant to the terms of the final Default Order dated July 12, 2011.

38In conclusion, the Appellant’s appeal is dismissed. The Director has indicated in his/her Factum that FRO is seeking costs of the appeal payable to the Director. The Director shall serve and file a costs outline (not exceeding 5 pages) within 30 days of the date of these reasons. The Appellant shall serve and file any responding submissions (not exceeding 5 pages) within 60 days of the date of these reasons. The Director shall serve and file any reply submissions within 15 days after being served with the Appellant’s responding submissions (not exceeding 3 pages).

Coats J.