Hansa Joshi

The Office of the Children's Lawyer (OCL) appealed a trial judge's decision holding it jointly and severally liable for 20% of the costs awarded against the mother in a custody and access dispute.

The trial judge had criticized the OCL for failing to seek court orders to compel the father and child to cooperate with its investigation.

The Divisional Court allowed the appeal, finding that the trial judge erred in principle by applying the wrong threshold for awarding costs against a non-party.

The Court held that costs against the OCL should only be awarded in exceptional circumstances involving bad faith or patently unreasonable, unfair, or indefensible conduct, which was not present in this case.

The Ontario Children's Lawyer (OCL) sought leave to appeal a $20,000 costs order made against it following a custody trial.

The Divisional Court first determined it had jurisdiction to hear the appeal, as the costs order itself constituted a 'single payment' under $50,000 pursuant to s. 19(1.2)(a) of the Courts of Justice Act.

The court granted the OCL an extension of time to file its notice of motion, finding the brief delay reasonable.

Finally, the court granted leave to appeal, concluding that whether a court-appointed third party like the OCL has an obligation to seek court intervention when a party refuses to cooperate is a matter open to serious debate and of general public importance.