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Charter of rights? HMMMM Not always applied in Family Court in Ontario
SECTION 15(1)
15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Updated: April 2005
OVERVIEW
In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration: Law v. Canada (Minister of Employment and Immigration),1999 CanLII 675 (S.C.C.), 1999 CanLII 675 (S.C.C.), 1999 CanLII 675 (S.C.C.), [1999] 1 S.C.R. 497.
The analysis under s. 15(1) proceeds in three stages, with close regard to context. At the first stage the claimant must show that the law, program or activity imposes differential treatment between the claimant and others with whom the claimant may fairly claim equality. The second stage requires the claimant to demonstrate that this differentiation is based on one or more of the enumerated or analogous grounds. The third stage requires the claimant to establish that the differentiation amounts to a form of discrimination that has the effect of demeaning the claimant's human dignity. The "dignity" aspect of the test is designed to weed out trivial or other complaints that do not engage the purpose of the equality provision: Law v. Canada
A person asking for equal treatment necessarily does so by reference to other people with whom he or she can legitimately invite comparison. Claims of discrimination under s. 15(1) can only be evaluated by comparison with the condition of others in the social and political setting in which the question arises. A s. 15(1) claim will likely fail unless it can be demonstrated that the comparison, thus invited, is to a "comparator group" with whom the claimant shares the characteristics relevant to qualification for the benefit or burden in question apart from the personal characteristic that is said to be the ground of the wrongful discrimination: Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 (CanLII), 2004 SCC 65 (CanLII),2004 SCC 65 (CanLII), [2004] 3 S.C.R. 357, 2004 SCC 65.
The enumerated grounds are only indicators of suspect grounds of distinction. It follows that decisions on these grounds are not always discriminatory. The same applies to the grounds recognized by the courts as “analogous” to the grounds enumerated in s. 15. To say that a ground of distinction is an analogous ground is merely to identify a type of decision making that is suspect because it often leads to discrimination and denial of substantive equality: Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (S.C.C.), 1999 CanLII 687 (S.C.C.), 1999 CanLII 687 (S.C.C.), [1999] 2 S.C.R. 203; Gosselin v. Quebec (Attorney General), 2002 SCC 84 (CanLII), 2002 SCC 84 (CanLII), 2002 SCC 84 (CanLII), [2002] 4 S.C.R. 429, 2002 SCC 84.
Contents | Interpretation | Waiver | Criminal Code | Statutes | Cases
SECTION 24(1)
24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Updated: April 2005
OVERVIEW
Section 24 provides a remedy only to the individual whose own Charter rights have been infringed. A claimaint who relies on the infringement of a third party’s rights has no standing to seek a remedy: R. v. Edwards, 1996 CanLII 255 (S.C.C.), 1996 CanLII 255 (S.C.C.), 1996 CanLII 255 (S.C.C.), [1996] 1 S.C.R. 128. While the claim must be a personal one, it is not always necessary for an applicant to await the actual violation of his or her rights. Relief may be granted for a prospective violation where there is a high degree of probability that the Charter infringement will occur: Phillips v. Nova Scotia
The applicant bears the burden of establishing that his or her rights have been infringed or denied. The standard of persuasion required is only the civil standard of the balance of probabilities: R. v. Collins, 1987 CanLII 84 (S.C.C.), 1987 CanLII 84 (S.C.C.), 1987 CanLII 84 (S.C.C.), [1987] 1 S.C.R. 265.
A “court of competent jurisdiction” is a tribunal that has jurisdiction over the person and the subject matter and, in addition, has the authority to make the order sought: R. v. Mills, 1986 CanLII 17 (S.C.C.), 1986 CanLII 17 (S.C.C.), 1986 CanLII 17 (S.C.C.), [1986] 1 S.C.R. 863. Whether a court or tribunal enjoys the power to grant the remedy sought is, first and foremost, a matter of discerning the intention of Parliament or the Legislature: R. v. 974649 Ontario Inc., 2001 SCC 81 (CanLII), 2001 SCC 81 (CanLII), 2001 SCC 81 (CanLII), [2001] 3 S.C.R. 575. A justice presiding over a preliminary inquiry does not have the jurisdiction to grant a remedy under s. 24 since the justice’s only task is to determine whether prosecution in other proceedings is warranted: R. v. Hynes, 2001 SCC 82 (CanLII), 2001 SCC 82 (CanLII), 2001 SCC 82 (CanLII), [2001] 3 S.C.R. 623. By contrast, where a labour arbitrator is, by statute, empowered to deal with all disputes arising between parties to a collective agreement, the arbitrator has the requisite authority to consider Charter questions and grant the appropriate remedies: Weber v. Ontario Hydro, 1995 CanLII 108 (S.C.C.), 1995 CanLII 108 (S.C.C.),1995 CanLII 108 (S.C.C.), [1995] 2 S.C.R. 929.
The language of s. 24(1) gives a wide discretion to fashion remedies, and it cannot be reduced to some formula for application in all cases: R. v. Mills, supra. However, it does not provide an alternative basis to s. 24(2) for the exclusion of evidence, except where the admission of evidence obtained in conformity with the Charter would infringe a Charter right (as with compelled statements subject to use immunity which are sought to be introduced in subsequent criminal proceedings): R. v. White, 1999 CanLII 689 (S.C.C.), 1999 CanLII 689 (S.C.C.), 1999 CanLII 689 (S.C.C.), [1999] 2 S.C.R. 417.
In my opinion this section of the Canadian Charter of Rights and Freedoms should Guarantee Equal Parenting unless there is a danger to the child. It also should protect against Bias and Discrimination in the Courts to the self-represented.
Remarks by Chief Justice Warren K. Winkle
County of Carleton Law Association
Civil Litigation CLE Program
Montebello, Quebec-November 19, 2010
Remarks by Chief Justice Warren K. Winkler
http://ccla-abcc.ca/uploadedFiles/Remarks%20by%20Chief%20Justice%20Warren%20K.%20Winkler%20-%202010%20CCLA%20Civil%20Litigation%20Conference.pdf
After reading these pages, I'm sure that everyone will agree the system is a mess and needs changing NOW.
Even the Chief Justice knows it needs to be changed and it is not working.
Here are a few excerpts from these pages,
" Access to justice is the single most important issue facing the legal profession in Canada. It
continually tests those responsible for the administration of justice across the country. Of
even more serious concern is the fact that the area of law where this problem is most
pronounced is family law.
Almost everyone you meet these days has a story about a family member, friend or
acquaintance that is going through a family dispute. Their story is predictably sad from a
personal standpoint, but within the present context – the adequacy of our legal system –
their experiences invariably tell of frustration and dissatisfaction."
"Adding to these problems is the increase in the number of self-represented litigants who
have run out of funds for legal services. The statistics support the seriousness of this
concern. Each year, almost 90,000 new family law proceedings are commenced
province-wide. Family disputes account for approximately one in five cases in Ontario's
courts and lead to more than 300,000 court appearances each year. It is estimated that
more than 50% of family law litigants come to court without legal representation."
"In September of this year at the Opening of Courts Ceremony in Toronto, I commented
on our family justice system. For those of you who did not attend the Toronto ceremony
or who have yet to track down my speech on the Court of Appeal website, there is no
cause to fret. I bring my message to you directly.
I began my remarks by saying that:
"I question the effectiveness of the 'slow-and-steady' approach of fine-tuning and
rationalizing the present system. Rather than incremental change, perhaps it is
time to consider a more dramatic and pragmatic revision of the manner in which
family law services is delivered across Ontario."
In expressing concerns about the state of our family justice system, my hope was to raise
the profile of this issue and begin a dialogue about what tangible steps we can take to
make real changes that result in real results for clients. As I have said, no topic relating 3
to the justice system has a more direct bearing on the lives of Ontarians than improving
our approach to resolving family breakdown."
"I conclude these remarks by stressing that the reform I propose is an access to justice
initiative. We must ensure that parties to a family law dispute have early access to
information, legal representation, and the benefit of full and timely disclosure. Combine
this with a streamlined process in which mediation is the centrepiece rather than a mere
stop on the road to the courtroom, and we will be well on track to redressing the access
issue. Our task must be to assist those facing family breakdown in reaching an affordable
resolution of their dispute and to alleviate, rather than worsen, their emotional stress."
These are only some of the remarks made by Chief Justice Warren K. Winkle. To see the full paper visit the link on this post.
Please sign and share this petition link http://www.thepetitionsite.com/6/stop-the-corrupt-family-law-court-of-ontario/
Monday, February 7, 2011
Single Fathers feeling trapped in one-sided system
taken from The Goderich Signal Star
http://www.goderichsignalstar.com/ArticleDisplay.aspx?e=2870703
http://www.goderichsignalstar.com/ArticleDisplay.aspx?e=2870703
Ruined by the Family Court of Ontario
How many others are having their lives destroyed and ruined by the Family Court system ?
Mine is, I have been abandoned by Legal Aid, my Lawyer, the system as a whole.
I have been held hostage by the system, I have nothing left, the Courts, Lawyers and FRO are forcing me into Bankruptcy and to seek help from the food bank, friends, family to pay my living expenses. I earn a very good wage but I can't even pay my own way but my EX(Common Law) can quit her job, take trips, buy a vehicle and live the high life. I have tried for over 2 years to have a motion heard in the Family Court of Ontario to have support reduced because of a material change in circumstances but the delays by the lawyers and the Courts continue.
The system Has to be changed and the Corruption and Failures of the Family Law Act and Courts has to be stopped.
Please visit and share the link below and sign this petition,
The Time for Change is NOW!
http://www.thepetitionsite.com/6/stop-the-corrupt-family-law-court-of-ontario/
Mine is, I have been abandoned by Legal Aid, my Lawyer, the system as a whole.
I have been held hostage by the system, I have nothing left, the Courts, Lawyers and FRO are forcing me into Bankruptcy and to seek help from the food bank, friends, family to pay my living expenses. I earn a very good wage but I can't even pay my own way but my EX(Common Law) can quit her job, take trips, buy a vehicle and live the high life. I have tried for over 2 years to have a motion heard in the Family Court of Ontario to have support reduced because of a material change in circumstances but the delays by the lawyers and the Courts continue.
The system Has to be changed and the Corruption and Failures of the Family Law Act and Courts has to be stopped.
Please visit and share the link below and sign this petition,
The Time for Change is NOW!
http://www.thepetitionsite.com/6/stop-the-corrupt-family-law-court-of-ontario/
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