Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Director, Family Responsibility Office, Applicant
AND:
Jason Bowen Wilson, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Ms. E. Francescutti, Counsel, for the Applicant
Mr. P. Mitrinandan, Counsel, for the Respondent
HEARD: June 1, 2018
Endorsement
[1]
Overview
The Family Responsibility Office asks for an order that the Respondent be incarcerated for failing to comply with a final default order of September 23, 2015. He was served with a notice of motion dated October 20, 2016 seeking a warrant of committal. Even with certain credits, FRO says there is still more than $4,000.00 owing. Today is the 11th appearance of the motion for warrant of committal.
2The Respondent says he can only come up with $700.00 (he has provided proof that he recently paid it). FRO says that’s not enough after all this time, particularly in the context that on January 26, 2018 Justice Chappel ordered that he make a $2,000.00 payment forthwith.
[3]
Preliminary Issue
However, before I get into the merits of FRO’s request, a preliminary issue arose.
4The Respondent is self-represented. Sometimes he misses court, but on those occasions when he has attended he has previously been assisted by duty counsel.
5Today however, he was able to get some advice from duty counsel in the duty counsel office. However, he was advised that duty counsel would not be attending with him in the courtroom, during the hearing to determine whether he is to be incarcerated.
6I stood the matter down and invited duty counsel Mr. Mitrinandan to attend to explain Legal Aid’s position. He spoke to his supervisor and confirmed that Legal Aid’s policy is not to represent parties in court during hearings to determine whether they are to be incarcerated, even if (as was the case with this Respondent) they otherwise qualify financially for duty counsel assistance.
7Mr. Mitrinandan was quite respectful and cooperative and indicated that he would assist the Respondent if the court ordered him to do so. I indicated that I was not ordering duty counsel to participate. I was requesting it because I thought it was the right thing to do.
8Accordingly, we have a policy issue which takes me by surprise.
9Legal Aid routinely has duty counsel assist parties in criminal court to try to get them out of jail, at bail hearings.
10Legal Aid routinely has duty counsel assist parties in family court, for contested motions and for conferences dealing with sometimes extremely trivial and superficial matters.
11It seems inconsistent – and grossly unfair – that when the Respondent in this case is facing the possibility of incarceration – the most drastic step the state can take – Legal Aid suddenly says he’s on his own. I would have thought that dealing with someone’s liberty is probably the most important type of case where Legal Aid should be involved.
12The lawyers before me today didn’t create this mess, and apparently they don’t have the ability to resolve it.
13But this court has to ensure that the process is fair. And I don’t think it is fair to have the Respondent represent himself (without proper legal advice which is readily available) at a hearing where the state is asking to put him in jail.
14The matter will have to be adjourned while Legal Aid Ontario (hopefully) reconsiders its policy.
[15]
Disposition
Adjourned to July 13, 2018 10:00 a.m. As a term of the adjournment:
a. The Respondent is to serve and file a motion to change (if he intends to bring one) prior to the return date.
b. The Respondent is to pay $4,486.48 prior to the return date.
16I would ask Mr. Mitrinandan to forward a copy of this endorsement to Legal Aid Ontario with the court’s request that they review this policy and have someone in attendance on the return date, to explain to the court the rationale for Legal Aid’s approach to this type of file.
Pazaratz J.
Date: June 1, 2018