Lucien Khodeir replies
7/7/2009 9:54:51 AM
I am the father from the article of Kirk Makin of Monday, July 6, 2009, at 3:53 am.
After 30 hours and 117 comments on that article, I feel the need to set the record straight on some errors, omissions, misconceptions, and misunderstandings. But before I start, I would like to thank Kirk Makin for writing the article and thank all the people who took the time to write the comments, in support of my efforts, or otherwise.
Because of the 2000-character limitation on the size of a comment on this web site, my comment will be divided into three parts. This is part 1 of 3.
On July 21st, 2008, I started an action (lawsuit) against the Attorney General of Canada (“AGC”) for its vicarious (indirect) liability for the torts (acts which caused damages to people) of three employees (“Trio”) of the Department of Justice Canada (“DOJ”) and six Ministers of Justice (“Ministers”).
Instead of filing a defence to my action as is normally done in response to an action, the AGC brought a motion to have my action dismissed in its entirety.
In my action, I submitted that, as members of the Federal/Provincial/Territorial Family Law Committee (“Committee”), the Trio committed a tort when they recommended, in the Committee’s final report (“Report”) of January 1995, a flawed child-support formula (“Formula”) for Canada’s child-support guidelines.
The Committee had been convened in June 1990 and was comprised of sixteen members, one from each jurisdiction, save for the federal government who had three. Of the remaining thirteen, twelve also recommended the Formula and only one, the member from Québec, wrote a full-page reservation in the Report against the Formula.
The Formula is flawed because it assumes that the children spend no time with the paying parent (who then incurs no child-related expenses) and that the children spend all their time with the receiving parent (who then incurs all child-related expenses).
7/7/2009 9:59:28 AM
This is part 2 of 3.
Part 1 of 3 was posted at 9:54:51 am.
In most normal situations where a paying parent is actively involved in the daily lives of the children, that parent is then paying more child support than is reasonably deemed fair.
The amount of child support paid in excess of a reasonably fair amount of child support is then nothing other than an amount of spousal support, under the guise of child support.
In my action, I submitted that the first of the six Ministers committed a tort when he adopted the Formula into the Federal Child Support Guidelines (“Guidelines”) on May 1, 1997, as a regulation of the Divorce Act, while knowing, or being recklessly indifferent to the fact, that the Guidelines were deficient because the Formula was not defined in them, or because the Formula was “ultra vires” (outside the jurisdiction, in Latin) of the Divorce Act since the Formula concealed the payment of spousal support.
In my action, I also submitted that the remaining five Ministers committed a tort when they took no steps to remedy the deficiencies of the Guidelines.
Because of the successful campaign of suppression of the definition of the Formula in the Guidelines by the DOJ, the flaw in the Formula was not discovered by a court until November 14, 2005, more than 8 years after the Guidelines came into effect, when the Honourable Mr. Justice Morris J. Fish articulated that flaw in paragraph 86 of the judgment of the Supreme Court of Canada in Contino v. Leonelli-Contino available online at: http://scc.lexum.umontreal.ca/en/2005/2005scc63/2005scc63.pdf
On May 13, 2009, the AGC’s motion to dismiss my action was heard in civil court.
The court granted the AGC’s motion by dismissing my action in its entirety.
7/7/2009 10:04:32 AM
This is part 3 of 3.
Part 2 of 3 was posted at 9:59:28 am.
Part 1 of 3 was posted at 9:54:51 am.
Except for certain exceptions, a portion of the legal costs of the successful party are normally recoverable from the losing party at the discretion of the court.
This legal practice is followed in Canada, but not in the United States.
The court rejected my submissions that my action ought to be one of those exceptions, where costs are not awarded, and awarded costs to the AGC.
Normally, awards of costs in comparable situations fall in the range of $3,000 to $6,000.
The AGC asked the court for $20,000. I submitted to the court that $3,500 was more in line with awards of costs in comparable situations.
The court awarded $20,000 to the AGC. I am appealing that judgment which is available at: http://canlii.org/en/on/onsc/doc/2009/2009canlii33034/2009canlii33034.pdf
Contrary to what was said in the article, my action was never a delay tactic of my payment of child support. I pay my child support every month.
In any event, a change in my child-support payments can only come about by way of an “application” in family court, not an “action” in civil court.
The main thrust of my action was to obtain a declaration that the Trio and the Ministers had committed a tort in their contributory role to the deficiencies of the Guidelines.
The award of damages with that declaration was at the complete discretion of the court.
I authored, self-published, and translated into French a book in 2008 titled “Children with 2 homes” (“Enfants avec 2 demeures”, in French) which elaborates on the deficiencies of the Guidelines and provides solutions to those deficiencies.
I authored, self-published, and translated into French a book in 2009 titled “ultra vires” which proves that the Formula is “ultra vires” of the Divorce Act.
A preview of the books is available at the web site www.childrenwith2homes.ca (www.enfantsavec2demeures.ca, in French) where the books may also be purchased.