Legal Aid

The applicant, charged with aggravated assault, sought a Rowbotham order for state-funded counsel, arguing his right to a fair trial would be compromised without representation.

His legal aid certificate was cancelled after he received an inheritance, which he subsequently spent.

The court found that legal representation was essential given the complexity of the case and the serious charge.

However, the application was deemed premature because the applicant failed to exhaust all legal aid appeals and did not provide sufficient evidence of indigence regarding family loans.

The application was adjourned to allow the applicant to complete the legal aid appeal process and provide further financial evidence.

The applicant, Sharon Cayuga, brought a Rowbotham application seeking a conditional stay of criminal proceedings pending the Attorney General funding defence counsel at legal aid rates.

The court found the application premature because the applicant had not completed the prerequisite steps of formally applying for Legal Aid, being refused, and exhausting all appeals for reconsideration of eligibility.

The application was adjourned, and the conditional stay extended for 30 days, contingent on the applicant taking the appropriate steps with Legal Aid.

This endorsement addresses issues arising from a trial management conference in a criminal proceeding.

Key points included a discussion regarding the appointment of counsel for one accused, Stephen Richard Parr, who has a Legal Aid certificate but is seeking counsel on the LAO panel.

The court also directed the Crown to file its discreditable conduct application and ordered all counsel to file summaries of their intended pre-trial applications by March 29, 2024.

The judge expressed concern about the efficiency of virtual attendances and indicated a consideration for ordering future trial management conferences to be held in person.

The accused, facing charges of assault and sexual assault, brought a motion for a Rowbotham order, seeking state-funded counsel.

The court found that Legal Aid had refused his application and that he lacked the financial means to retain counsel, despite earning too much to qualify for Legal Aid.

Crucially, the court determined that representation by counsel was essential for the accused to receive a fair trial, given his limited education, lack of litigation experience, and poor oral communication skills, which would hinder his ability to make full answer and defence in an eight-day jury trial.

The court ordered a stay of proceedings unless the Ministry of the Attorney General arranged for counsel.

The accused, Carolyn Burden, brought a Rowbotham application for state-funded counsel after Legal Aid denied her request for a change of solicitor and dismissed her appeal.

The Crown opposed the application.

The court dismissed the application, finding that Burden failed to prove indigence and that her right to a fair trial would not be materially compromised if she proceeded unrepresented, given her education and financial background.

The applicant mother sought an order for substitute service of an application for sole custody on the respondent father, who resides in Saudi Arabia.

The applicant sought to serve the respondent by email, citing financial constraints as a legally aided litigant and her inability to hire a process server.

The court dismissed the motion, finding that the applicant failed to satisfy the evidentiary requirements under the Family Law Rules.

The court held that legally aided litigants are not relieved of their obligations to comply with service requirements and that the applicant did not provide detailed evidence of steps taken to serve the respondent or demonstrate that email service would reasonably bring the application to the respondent's attention.

The accused applied for a Rowbotham order seeking Crown funding for legal representation, arguing that he was indigent, ineligible for legal aid, and that his right to a fair trial would be materially compromised if unrepresented.

The charge involved an indecent assault on a minor alleged to have occurred between 1979 and 1982.

The court dismissed the application, finding that while the charge was serious, the central issues at trial would revolve around credibility assessments, which are within the capability of a self-represented accused of average education and intelligence.

The court noted that appointed counsel would be available to cross-examine the complainant and bring necessary pre-trial applications, and that the trial judge would provide reasonable assistance throughout the proceedings.

The Applicant sought costs following the Respondent's successful motion to set aside an ex parte temporary order.

The court found the Applicant guilty of bad faith conduct due to material misrepresentations made to the court and unreasonable behaviour, including false allegations of abuse and non-disclosure.

Despite the Respondent's offer to settle not strictly complying with Rule 18(14), it was considered a bona fide attempt at compromise under Rule 18(16).

The Applicant's financial hardship was not considered a mitigating factor given the finding of bad faith and similar modest means of both parties.

The court awarded the Respondent full recovery costs of $8,300, payable forthwith.

This is a costs decision following the court's dismissal of the applicant's application on jurisdictional grounds.

The respondent sought costs of $4,062.00 on a partial recovery basis, while the applicant argued no costs should be awarded.

The court applied the Family Law Rules framework and found the respondent entitled to costs as the successful party.

However, the court reduced the award to $2,800.00 on a partial recovery basis, finding certain entries in the respondent's bill of costs excessive and not reasonably justified given the narrow nature of the motion.

The court considered the applicant's limited financial means as a factor in determining the amount but did not use it as a shield against liability.

The applicant husband, a self-represented lawyer, sought to amend his pleadings to include claims for equalization and trust, despite potential limitation period issues and a history of delayed financial disclosure.

The respondent wife incurred additional legal fees to amend her Answer in response to these new claims.

The court, in this costs ruling, awarded the respondent $2,640.27 for costs thrown away related to the original pleadings, finding this amount reasonable.

The court rejected the applicant's arguments regarding the respondent's conduct and his request to suspend payment, emphasizing that costs are determined summarily after each step and that a legally aided client's liability is not shielded by impecuniosity when acting unreasonably.

The applicants, Rupert Folkard and Joseph Goldfinger, jointly charged with fraud over $5000, sought a Rowbotham Order for state-funded legal counsel after being refused Legal Aid.

The court applied the three-part test for a Rowbotham Order, finding that while the applicants were indigent despite exceeding Legal Aid thresholds, their right to a fair trial would not be materially compromised if unrepresented.

The charges were serious, but the facts were not overly complex, and both applicants, despite lacking legal training, were intelligent, educated, and accustomed to financial documents.

The court dismissed the application, concluding that they possessed the necessary skills to represent themselves and that logistical issues with disclosure could be resolved without state-funded counsel.

The respondent father moved to set aside a default final order obtained by the applicant mother, which granted her sole custody, supervised access to the father, and ordered child and spousal support.

The father argued he was unable to attend the hearing due to language barriers, delays in obtaining inter-provincial legal aid, and his assigned lawyer's non-attendance.

The court applied Rule 25(19)(e) of the Family Law Rules, finding the father's reasons satisfactory.

The final order was set aside, and the issues of jurisdiction, custody, and access were adjourned for a full hearing.

The applicant sought a retroactive Rowbotham order to stay charges unless the Attorney General paid for legal fees incurred during a completed preliminary hearing.

The applicant's initial Legal Aid certificate expired due to oversight, and a subsequent application was denied due to increased income.

While the Crown agreed to fund counsel for the upcoming trial, it refused to cover the preliminary hearing costs.

The court found it lacked jurisdiction to grant a retroactive Rowbotham order, as the applicant's fair trial rights for the preliminary hearing were not in jeopardy, having been represented by counsel throughout.

The application was dismissed.

Michael Oduh, charged with serious drug trafficking offences, applied for a stay of proceedings pending state-funded counsel (a Rowbotham application) after being denied Legal Aid Ontario coverage.

The court found that Oduh lacked the financial means to retain private counsel for a complex, lengthy trial and that counsel was essential for him to receive a fair trial, given the seriousness of the charges, the potential for a lengthy jail term, and his lack of familiarity with the criminal justice system.

The application was allowed, and proceedings were stayed until state-funded counsel was provided.

This endorsement addresses the issue of costs following an interim order regarding child access and spousal support.

The applicant mother sought $5,000 in costs, arguing substantial success on spousal support and parenting arrangements.

The respondent father argued for no costs or a reduced amount, citing mixed success and the mother's alleged unreasonableness.

Applying Family Law Rule 24, the court found the mother successful on spousal support and that the parenting outcome was more aligned with her proposal.

The court ordered the father to pay the mother $2,500 in costs.

The applicant sought an order to release seized funds for legal fees and a declaration that s. 462.37(3) of the Criminal Code violates Charter rights if applied to such fees, creating a conflict of interest for counsel.

The Crown resisted, arguing lack of jurisdiction and prematurity for the constitutional issue.

The court found jurisdiction to release the funds, distinguishing previous case law, and determined the applicant had no other means to pay.

However, the court dismissed the declaratory relief, deeming the constitutional question premature as several contingencies must occur before s. 462.37(3) could apply, and emphasized that an offender truly unable to pay a fine in lieu of forfeiture would not face incarceration.

This costs endorsement follows the dismissal of a father's motion for summary judgment and a change in parenting arrangements, where the court ordered him to pay child support.

The respondent mother was deemed the successful party on the major issues of joint custody and parenting, and secured a higher child support amount than she had offered.

However, the applicant father succeeded on a minor issue regarding the reimbursement of Dr. Smyth's report costs.

Applying Rule 24(11) of the Family Law Rules, the court considered the importance and complexity of the issues, the parties' conduct, counsel's rates, time spent, and the father's financial capacity.

The court awarded the mother $4,000 in costs, noting that her legal aid status does not diminish the costs award.

The Applicant sought $1,010 in costs as the successful party to a motion brought by the Respondent.

The Respondent argued against a costs order due to his inability to pay and the Applicant's representation by a staff lawyer at ILSO.

The court considered the Respondent's delay in complying with a previous order to collapse his RRSP and apply proceeds to an outstanding costs award.

Despite the Applicant's claim for costs based on counsel's time, the court awarded partial costs, fixing them at $600, to be added to existing outstanding costs.

The Respondent was also prohibited from bringing a motion to change until all costs are paid in full.

The court determined costs following a trial on custody, access, and child and spousal support, and a motion under Rule 1(8) of the Family Law Rules.

The respondent, who was legally aided, sought costs for both the motion and the trial.

The applicant, who was self-represented, did not make submissions.

The court fixed costs for the Rule 1(8) motion at $2,800 inclusive of HST, and trial costs at $9,605 inclusive of disbursements and HST, finding the respondent to be the more successful party despite some divided success.

The applicant's obstinacy and "pick and choose" approach to court orders were noted as factors increasing the difficulty of the case.

This is a costs decision following the dismissal of the respondent's motion to set aside a default order for child support or, in the alternative, to reduce his child support obligations.

The applicant sought full recovery of costs in the amount of $5,800, while the respondent argued for no costs or reduced costs on the basis that the applicant was legally aided and that a costs award would diminish his ability to pay child support.

The court awarded costs to the applicant on a close to full recovery basis, finding that the respondent did not act reasonably in his conduct of the motion and that the applicant was the successful party.