Legal Aid

In a family law costs decision following a focused hearing on common-law cohabitation, the court applied s. 131 of the Courts of Justice Act and Rule 24 of the Family Law Rules.

The court reviewed governing costs principles, including presumptive entitlement for success at a step, fairness and reasonableness, access to justice, and the relevance of litigation conduct and financial circumstances to quantum.

Although the successful party sought full indemnity costs for broader steps in the proceeding, the court confined the award to the focused hearing and found full indemnity unwarranted on the record.

The court fixed partial indemnity costs at 60% of the focused-hearing amount, totaling $8,014.64 inclusive of HST, payable in any event of the cause.

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.

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 applicant, Menna Nasr, sought an order for state-funded counsel (a Rowbotham order) after being denied legal aid and exhausting all available remedies.

She faced serious criminal charges in two jurisdictions, including dangerous driving, flight from police, and impaired operation, with potential for significant jail time.

The court applied the three-part Rowbotham test, finding that Nasr was financially unable to retain private counsel and that counsel was essential for her to receive a fair trial, given the seriousness and complexity of the charges, the voluminous disclosure, the number of witnesses, and her significant mental health diagnoses affecting her ability to participate meaningfully in her defence.

The application was granted, with a requirement for the applicant to contribute $2000 towards her counsel's funding.

Following an 11-day trial regarding parenting arrangements, the successful applicant sought costs of $10,000.

The respondent argued for a nominal award of $2,000 due to his limited ability to pay.

The court found the applicant was entirely successful and the respondent's conduct unreasonably lengthened the trial.

Despite the applicant's full indemnity costs approaching $90,000, the court accepted her request for $10,000 as appropriate given the respondent's limited means.

The court also ordered that the respondent cannot initiate new proceedings without leave if he defaults on the first $2,000 installment.

The accused, charged with serious drug offences, brought a Rowbotham application for state-funded counsel after being refused Legal Aid.

The court found that counsel was essential for a fair trial due to the complexity of the case, the accused's limited English, and the severe potential consequences.

Despite vague financial evidence, the court accepted that the accused, a gig economy worker, lacked the means to afford the substantial retainers required by private counsel.

The application was granted, and proceedings were stayed until funding is provided, subject to the accused contributing $5,000.

Following a trial, the mother was ordered to pay $75,000 in costs to the father.

She failed to make timely costs submissions but was granted an extension after bringing a Form 14B motion and paying $3,500.

In her submissions, she argued the costs were too high and that the father's receipt of legal aid should be considered.

The court rejected most of her arguments but reduced the costs order to $62,500, finding that some of the unreasonable litigation conduct was attributable to her counsel's disorganization, for which the Law Society was seeking an interim suspension, and giving a partial discount for her limited ability to pay.

Following an eight-day family law trial where the respondent father was successful on the contested issues of decision-making and parenting time, the court determined the issue of costs.

The respondent sought over $200,000 in costs, relying on multiple settlement offers that were better than the trial outcome.

The applicant mother argued against a costs award, citing divided success and her inability to pay due to financial hardship and reliance on legal aid.

The court found the respondent was the successful party and fixed his reasonable costs at $150,000.

However, recognizing the applicant's inability to pay, the court applied a 50% discount, ordering the applicant to pay $75,000 in costs.

Following the dismissal of the paternal grandmother's motion to consolidate her access application with the mother's motion to change the father's access, the mother sought costs.

The paternal grandmother argued against costs, citing her limited ability to pay and suggesting the mother's receipt of Legal Aid should reduce the award.

The court rejected these arguments, noting that Legal Aid is irrelevant to costs and that ability to pay does not immunize a party from costs for unnecessary procedural steps.

The court awarded the mother costs fixed at $4,700.

Following a motion where the applicant father was overwhelmingly successful in obtaining primary residence of the children, he sought full recovery costs of $9,930.

The respondent mother argued she could only afford $1,500 due to her limited financial circumstances and receipt of Legal Aid.

The court found the mother's conduct unreasonable but not rising to the level of bad faith required for full recovery.

The court held that while ability to pay is a factor, it cannot shield a litigant from the consequences of unreasonable behaviour, nor is the receipt of Legal Aid a relevant factor in determining costs.

Costs were fixed at $6,000.

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.

The applicant, charged with trafficking cocaine, brought a Rowbotham application seeking a stay of proceedings until the state agreed to fund his legal counsel.

Although he had been denied legal aid, the court found his financial disclosure deficient.

He failed to provide evidence of his recent employment income, the value of his vehicle, or a logical explanation for transactions in his girlfriend's bank account.

The application was dismissed as the applicant did not prove on a balance of probabilities that he could not afford to retain private counsel.

The young person applied for an order directing the appointment of counsel under s. 25(4) of the Youth Criminal Justice Act after being denied Legal Aid.

The Crown had determined that Extrajudicial Sanctions were not available.

The court considered whether the young person was 'at trial' within the meaning of the Act, which is a prerequisite for the appointment of counsel.

The court held that the arraignment and entering of a plea, including a guilty plea, constitutes the commencement of the trial process.

Consequently, upon entering a plea, the young person is considered to be 'at trial' and is entitled to a court order for the appointment of counsel.

The applicant, charged with second-degree murder, applied for a Rowbotham order after being denied Legal Aid.

The Crown had previously offered to fund his defence, but the applicant refused due to objections to two proposed terms.

The applicant sought a conditional stay and an order imposing specific funding terms.

The court granted the conditional stay, finding the applicant met the Rowbotham criteria since no funding arrangement was currently in place.

However, the court held it lacked jurisdiction to impose specific funding terms absent a Charter breach.

The court also granted a limited sealing order over the settlement communications and the terms of the Crown's offer, finding they were protected by settlement privilege.

The applicant, Rozina Samnani, sought costs on a full recovery basis following a three-day trial where she was substantially successful on issues of repayment of funds, equalization of net family property, and spousal support.

The respondent, Akbar Galmani, opposed the costs, citing financial hardship and disputing the scope of the trial issues.

The court awarded the applicant costs fixed at $12,750.00, finding her substantially successful and noting the respondent's unreasonable conduct, including failure to provide full financial disclosure and refusal of reasonable settlement offers.

The applicant sought costs following a family law trial regarding the division of equity in the matrimonial home.

The court found the respondent's demand for immediate payment of his half-share unreasonable, as it would have forced the sale of the children's home.

Although the applicant did not serve an Offer to Settle and was legally aided, she was the substantially successful party.

The court awarded the applicant $22,500 in costs, to be set off against the respondent's share of the equity.

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.

The applicant, facing serious drug trafficking charges, brought a Rowbotham application for state-funded counsel after being denied legal aid.

The Crown conceded the charges were serious and the case complex, but disputed the applicant's inability to privately fund his defence.

The court found that Legal Aid Ontario's income thresholds were unrealistic and that the applicant, who earned approximately $16,000 annually, had no realistic prospect of funding the estimated $11,000 trial costs.

The application was granted and the charges were stayed pending the provision of state-funded counsel.

The accused, facing charges of fraud and forgery, brought a Rowbotham application seeking a stay of proceedings pending the appointment of state-funded counsel on the morning his trial was scheduled to commence.

The court reviewed the extensive procedural history, noting the accused's repeated changes of counsel and previous adjournments.

Applying the Rowbotham criteria, the court found the accused failed to demonstrate that he had been denied Legal Aid, failed to prove indigence given evidence of substantial assets, and failed to show that the charges were sufficiently complex to require counsel for a fair trial.

The application was dismissed as a final attempt to delay the trial.

An applicant sought a stay of proceedings on the grounds that he was ineligible for legal aid, indigent, and unable to retain private counsel, and that his right to a fair trial would be materially compromised without state-funded counsel.

The applicant was charged with break and enter under section 348 of the Criminal Code and was legally blind with only 7% vision in one eye.

The Crown's case relied on video identification evidence.

The court granted the stay, finding that the applicant's legal blindness presented a serious obstacle to self-representation in a case turning on video identification, and that counsel was essential to ensure a fair trial consistent with Charter values of equality and the right to a fair trial.