Citation: Eustace v. Eustace, 2018 ONSC 2367

DIVISIONAL COURT FILE NO.: 26/17

DATE: 2018/04/19

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Wilton-Siegel and Myers JJ.

BETWEEN:

Emerencia Yamuna Eustace

Applicant (Respondent in the Appeal)

– and –

Ernest Jeyaprakash Eustace

Respondent (Respondent in the Appeal)

Jane Long and Hansa Joshi, for the Appellant, the Office of the Children’s Lawyer

Ajay Duggal and P. Sharma, for the Respondent, Ernest Jeyaprakash Eustace

HEARD at Brampton: March 6, 2018

H. Sachs J.

Introduction

[1] This appeal raises the question of when it is appropriate to make an award of costs against the Office of the Children’s Lawyer (the “OCL”). On December 22, 2016, after a 22-day trial focused on the issue of custody and access, Emery J. awarded custody of the child of the marriage to the father (Ernest Jeyaprakash Eustace) and awarded costs against the mother (Emerencia Yamuna Eustace), fixed in the amount of $107,403.22. The OCL was found liable, on a joint and several basis, for 20% of these costs, which the court calculated to be $20,000.00.

[2] No one has appealed the judgment of the trial judge on the merits. However, the OCL appeals the award of costs against it. The OCL was granted leave to appeal the costs award by Barnes J. on August 9, 2017. On the motion for leave, Barnes J. determined that the appeal as to costs did lie to the Divisional Court, as opposed to the Court of Appeal. The father appeared before us to contest the OCL’s appeal. The mother did not appear or file any materials, although the panel was advised that she had consulted duty counsel who told her that their mandate did not extend to representing parties on an appeal. The OCL also brought a motion seeking to introduce fresh evidence on the appeal.

[3] For the reasons that follow I would dismiss the motion to introduce fresh evidence, but allow the appeal.

Relevant Factual Background

[4] On October 9, 2012, Price J. made an order requesting that the OCL “provide such services as the Children’s Lawyer deems appropriate” for J.M. Eustace (“J.M.”), born March 16, 2003. At the time of the order J.M. was 9 years old. Paragraph 4 of Price J.’s order (which was a standard form order) provides as follows:

THIS COURT ORDERS that if the Children’s Lawyer determines to provide legal representation under s. 89(3.1) of the Courts of Justice Act, the Children’s Lawyer shall have full power to act for the said child(ren) as though they were parties to these proceedings, and, without limiting the generality of the foregoing, the Children’s Lawyer shall have the right to:

(a) make a full, independent enquiry of all the circumstances relating to the best interests of the child(ren);

(b) receive copies of all professional reports and all records relating to the child(ren);

(c) production and discovery according to the Rules;

(d ) appear and participate in this proceeding, including the right to examine and cross-examine witnesses, call evidence and make submissions to the Court, such submissions to include the position(s) advanced on behalf of the child(ren);

(e) apply to be removed as the legal representative of the child(ren), if the Children’s Lawyer believes that such involvement is no longer in the child(ren)’s interests;

(f) take such appeal proceedings as deemed appropriate; and

(g) seek costs related to these proceedings.

[5] Section 89(3.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides as follows:

At the request of the court, the Children’s Lawyer may act as the legal representative of a minor or other person who is not a party to a proceeding.

[6] The request having been made by Price J., the OCL agreed to act as J.M.’s legal representative. To this end, a lawyer was assigned to be J.M.’s legal representative and an OCL clinician was also assigned to assist in that representation.

[7] At the request of the father, on November 20, 2013, Mossip J. ordered that the Willow Centre conduct an assessment of the family pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Under that section, a “court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.”

[8] On October 21, 2014, the Willow Centre released its 69-page report. That report expressed a serious concern with J.M.’s present and future psychological health arising from the conflict in his family. The report noted that J.M. “described his mother as unilaterally bad and his father (and paternal grandmother) as unilaterally good.” In spite of this, the assessors concluded that “it would be in [J.M.’s] best interests to have a positive relationship with both of his parents and the opportunity to experience both his parents as being able to care for him, make decisions on his behalf and encourage his age appropriate moves towards a more realistic self-sufficiency and independence.”

[9] The Willow Centre expressed the opinion that the father and his family had engaged in behaviour designed to alienate J.M. from his mother. However, the assessors were also clear that it was not their view that the father had “set out deliberately to alienate [J.M.] from his mother, but rather has uncritically accepted his parents’ (particularly mother’s) negative view of her.” Throughout the marriage and after the separation the father has resided with his parents.

[10] The Willow Centre found that “it would be in [J.M.’s] best interests if Ernest and Emerencia could live physically close enough to each other so that [J.M.] could spend an equal amount of time with each of them and that, at least until their authority as parents has been re-established, contact with the paternal grandparents could be supervised, brief and limited.” They also recommended that both parents work with a parenting coach and that the father, mother and child receive counselling.

[11] The assessment report addressed the question of what would be recommended if the father was unwilling to separate from his parents and set up a home close to the mother. In that event the Willow Centre recommended that “consideration be given to sole legal custody of [J.M.] be given to his mother with the understanding that all major decisions in regard to [J.M.’s] care would be discussed with his father before a final decision is made and that if a joint decision cannot be reached it would be brought to a Parent Coordinator for mediation or, if necessary, arbitration.” Further, if the father continued to live with his parents and sole legal custody were given to the mother, the father’s access to J.M. should be exercised at a neutral place “on a frequent and regular basis at least until Ernest and Emerencia’s authority as parents has been clearly established and his paternal grandparents are able to support [J.M.’s] need to have a relationship with his mother and not undermine her authority.” Finally, the Willow Centre recommended that before a final decision about custody and access was made, the family should be referred and asked to participate “in one of the intensive family intervention programs that are now available for families in which a child is resisting contact with a parent, when abuse has not been substantiated, and is, as a result, at risk of emotional harm.”

[12] The trial commenced in May 2015, some seven months after the assessment was completed. At trial the OCL advanced a position that was consistent with the recommendations arising from the assessment. While the OCL was initially able to meet with the child, after they expressed a view that the father did not agree with, they were never able to facilitate a meeting between themselves and the child. During the course of the trial the trial judge met alone with J.M. to obtain his views and preferences. J.M. asked that the OCL not be present during the judicial interview.

The Trial Judge’s Decision

[13] As noted above, the trial judge decided that the father should have sole custody of J.M. subject to alternating weekend access to the mother. The trial judge made a number of ancillary orders, including orders for counselling and a request that the OCL remain involved as J.M.’s lawyer.

[14] In awarding costs against the OCL the trial judge made an explicit finding that the OCL did not act in bad faith. However, he made a number of findings to support his view that the OCL should be liable for costs. In particular, he made the following findings:

(a) He adverted to cases where the OCL had claimed costs in child welfare cases where they alleged that they had spent considerable time and expense in regard to cases with little merit:

If the OCL can claim costs on the basis of time spent having regard to the merits, there is no reason why costs cannot be ordered on the same basis. I find that the OCL favoured the position of Ms. Eustace because Mr. Eustace refused to cooperate. The OCL relied upon the findings of Dr. Rex Collins and The Willow Centre team in the section 30 assessment without regard to the express wishes of J.M. Counsel appointed by the OCL could have instead made a motion to court to direct that Mr. Eustace cooperate or to facilitate one or more meetings with J.M. to take instructions.

(b) The trial judge found that the OCL “ignored the general rules of fairness by not seeking further assistance of the court before trial to obtain the cooperation of Mr. Eustace and J.M. to the process in order to complete its investigation. This lead to a very long trial, requiring Mr. Eustace to incur significant expense.”

(c) The trial judge found that the OCL took “an adversarial position not only to Mr. Eustace, but to J.M. to such an extent that J.M. would not speak to [his legal representative or the clinical investigator].”

(d) The trial judge found that the role of the OCL is to be a “fact finder.” He described this role as follows:

That mandate requires the OCL to put all evidence relevant to the best interests of the child before the court, to ascertain and provide the court with the views and preferences of the child and the context for those view(sic), and to formulate a position to make known to the court taking the child’s best interests into account.

(e) The trial judge noted that the OCL is not entitled to express its personal opinion as to the child’s best interests. In doing so, he expressed his concern that in the case before him, “counsel and the clinical investigator for the OCL may have permitted their personal views to usurp their professional function.”

(f) The trial judge found that “the involvement of the OCL and the position that it took against Mr. Eustace essentially fortified the position of Ms. Eustace and increased the length of the trial by at least 20%.” Thus, he held the OCL jointly and severally liable for 20% of the costs he awarded against Ms. Eustace.

Issues Raised in this Appeal

[15] The OCL makes a number of arguments on this appeal, which can be summarized as follows:

(1) The trial judge applied the wrong threshold for awarding costs against the OCL.

(2) The trial judge misconstrued the mandate of the OCL and, having done so, erred in finding that the OCL was obligated to come back to court to seek orders against the father and the child directed at mandating the child’s meeting with the OCL so that that the OCL could ascertain directly from the child his views and preferences.

(3) The trial judge made findings about the conduct of the OCL in the absence of any evidence to support those findings.

Standard of Review

[16] The standard of review applicable to this appeal is set out in para. 27 of Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, which provides that an appellate court should only set aside a costs award if the judge at first instance has made an error in principle or if the costs award is clearly wrong.

Analysis

The Motion for Fresh Evidence

[17] On the motion for fresh evidence, the OCL seeks to introduce correspondence that the OCL sent both prior to and after the trial with a view to illustrating their efforts to obtain the father’s compliance and cooperation prior to trial and the father’s alleged continued disregard of the trial judge’s order after trial.

[18] The test for the admission of fresh evidence is not disputed:

a. The tendered evidence must be credible.

b. The tendered evidence could not have been obtained by the exercise of reasonable diligence prior to trial.

c. The evidence, if admitted, will likely be conclusive of an issue in the appeal (Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208 (C.A.)).

[19] The evidence of the OCL’s efforts to obtain the father’s cooperation could have been obtained before trial. The evidence of what has happened after trial was not something that was before the trial judge and as such should not normally be considered on an appeal.

[20] To the extent that the OCL is seeking, through the introduction of this evidence, to demonstrate the efforts they made to obtain the father’s cooperation before trial, the trial judge was aware that the OCL had been unsuccessful in obtaining the father’s cooperation before trial. This is clear from his reasons. His criticism of the OCL is that, in the face of the father’s lack of cooperation, the OCL should have sought the court’s assistance to compel that cooperation.

[21] The OCL seeks to introduce the evidence of what occurred after trial to demonstrate the father’s unwillingness to obey court orders. Thus, it submits that, even if the OCL had sought the court’s assistance and the court had made an order, the father would have been unlikely to obey that order. There are two difficulties with this evidence. First, this evidence concerns behaviour that occurred after trial, behaviour that will certainly be a matter of debate between the parties and that the trial judge did not adjudicate on. Second, the trial judge was aware that the father had a history of disobeying court orders. In particular, in his reasons he noted that the father’s pleadings on financial issues were struck because of his failure to make disclosure in accordance with a disclosure order of Price J.

[22] For these reasons I find that the fresh evidence would not likely be conclusive of any issue in the appeal. Therefore it should not be admitted.

The Threshold for Awarding Costs Against the OCL

[23] Rule 24(1) of the Family Law Rules, Ont. Reg. 114/99 provides that “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.” Rule 24(2) makes it clear that the presumption does not apply to a party that is a government agency. Rule 24(3) confirms that a court does have a “discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful.”

[24] In this case the OCL was not a party to the litigation. The Family Law Rules contain no provision for the awarding of costs against a non-party. Thus, there is no statutory authority for the awarding of costs against the OCL.

[25] In 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184, 134 O.R. (3d) 641, the Court of Appeal confirmed that superior courts of record have an inherent jurisdiction to award costs against a non-party. That jurisdiction flows from the right of a court to control its own process. As noted by the Court of Appeal, inherent jurisdiction has been recently described by the Supreme Court of Canada in Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162, at para. 23:

Inherent jurisdiction derives from the very nature of the court as a superior court of law and may be defined as a “reserve or fund of powers”, which a superior court “may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.” [Citations omitted.]

[26] When a court chooses to exercise its inherent jurisdiction, it must do so “sparingly and with caution”: R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 30, cited with approval in 1318847 Ontario Limited, at para. 68.

[27] In 1318847 Ontario Limited, the Court of Appeal confirmed that a non-party might face an award of costs if it engages in conduct that amounts to an abuse of process, which can be described as “gross misconduct, vexatious conduct, or conduct…that undermines the fair administration of justice”(para. 76).

[28] In the recent decision of Proulx v. Proulx, 2017 ONSC 5134, D.L. Chappel J. conducted a helpful and thorough analysis of the caselaw surrounding the question of when and if costs should be awarded against the OCL. I would adopt the following principles that emerge from her analysis:

(i) If the OCL has acted in bad faith costs should be awarded against it.

(ii) Costs may “also be ordered against the OCL in exceptional circumstances where its actions fall short of bad faith, but it engaged in patently unreasonable, unfair or indefensible conduct that exceeded its statutory mandate or had a significantly deleterious impact on the litigation” (para. 35(b)).

[29] These principles establish a stringent test for awarding costs against a non-party that is consistent with the test articulated by the Court of Appeal in 1318847 Ontario Limited. This is as it should be. The OCL is a non-party. Further it is a non-party who has been invited to participate in the litigation by the court.

[30] In discussing the threshold for awarding costs against the OCL, Chappel J. some other important, points about the nature of the OCL’s mandate. They reinforce the need for a high threshold when it comes to awarding costs against the OCL.

[31] First, at para. 36, Chappel J. states:

One consideration is that the OCL does not proactively seek to participate in custody and access cases. Rather, its involvement derives from a court order specifically seeking its participation. Given that its involvement is prompted by the court’s request for assistance, it is appropriate that it be accorded some degree of shelter from costs liability. Another factor that supports a higher threshold for costs liability against the OCL is that it represents the needs and interests of minor children. Representation of children involves many unique challenges, including special difficulties in ascertaining the client’s capacity, their level of maturity, their wishes and whether there are contextual factors and dynamics that have improperly influenced their expressed views and preferences. Reaching a position on behalf of a child in custody and access cases often involves a delicate balancing of numerous factors. Adopting the usual approach to costs in Family Law cases to claims for costs against the OCL would have a chilling effect on genuine attempts by the OCL representatives to carry out this demanding role in a vigilant manner. Furthermore, given that children typically do not have their own financial resources, an award of costs against the OCL is essentially an award of costs against counsel, which is only appropriate in rare and exceptional circumstances. [Citations omitted.]

[32] In addition, Chappel J. points out that in carrying out this complicated mandate, the OCL may legitimately form the view that that the best interests of the child requires it to take a position that runs contrary to the expressed wishes of the child. A costs award that sanctions the OCL if its position does not prevail at trial runs the risk of discouraging the OCL from bringing its best judgment to bear on what are often difficult and complex situations. As put by Chappel J. at para. 35(e) of her decision:

The process of formulating a position on behalf of a child in a custody and access case does not simply involve parroting the child’s stated wishes. It involves acquiring a sound appreciation of the overall context surrounding the child’s expressed views and preferences. Accordingly, in deciding upon a position, the OCL must consider important factors such as the competence and level of maturity of the child’s expressed views and preferences and the general circumstances surrounding those views and preferences. Formulating a position after balancing all of these considerations is not an exact science, but rather a complex exercise of discretion informed by specialized training and experience as an OCL representative. Ultimately, a consideration of all of these factors may lead counsel for the child to advance a position that deviates from the precise views and preferences that their client has expressed. To sanction child’s counsel simply for doing so through a costs award would seriously undermine the role and value of child representation in custody and access cases [Citations omitted.]

Analysis of the Trial Judge’s Decision in Accordance with These Principles

[33] In awarding costs against the OCL, the trial judge made a number of errors in principle that caused him to reach a decision that was clearly wrong.

[34] The trial judge failed to appreciate that in awarding costs against the OCL he was awarding costs against a non-party, which involved the exercise of his inherent jurisdiction, a jurisdiction that must be used sparingly.

[35] This error is apparent from paragraphs 51 and 52 of his decision where, to support his decision to award costs against the OCL, he refers to decisions in which costs have been awarded against the Children’s Aid Society in child welfare proceedings. These decisions have little relevance as, unlike the Children’s Aid Society, the OCL is not a party.

[36] The trial judge also adverts to the fact that the OCL has made claims for costs when it has been forced to respond to cases that have little merit (the court order appointing the OCL in this case permitted it to make such a claim). According to the trial judge, if the OCL can make a claim for costs where it alleges a lack of merit, it can also be subject to such a claim. Again, the trial judge failed to recognize that there is a difference between the OCL making a claim for costs against a party to the litigation and a party requesting costs from the OCL, who is not a party to the litigation.

[37] Another reason that the trial judge gave for awarding costs against the OCL was that it “ignored the general rules of fairness” by not coming back to court to seek the court’s assistance to get the cooperation of Mr. Eustace and J.M. so that it could have meetings with J.M. to hear from him directly regarding his views and preferences.

[38] In reaching this conclusion, the trial judge misstated the threshold for awarding costs against a non-party. Costs against a non-party should only be awarded in the face of unfairness that “undermines the fair administration of justice” (to use the language in 1318847 Ontario Limited, para. 76) or otherwise constitutes an abuse of process. This threshold might be met in a situation where the conduct of the OCL was “patently unreasonable, unfair or indefensible conduct that exceeded its statutory mandate or had a significantly deleterious impact on the litigation” (as put in Proulx, para. 35(b)).

[39] In this case the OCL’s conduct did not exceed its statutory mandate. As was set out in the order appointing it, the OCL had full power to act for J.M. as though he was a party to the proceedings and, in doing so, to “make a full, independent enquiry of all the circumstances relating to the best interests” of J.M. There is nothing in the order or in the statute that required the OCL to personally take all steps necessary to obtain the views and preferences of J.M. directly from J.M. Further, given the situation that existed in this case, and absent a finding of bad faith, we disagree with the trial judge’s implicit finding that the OCL did not fulfil its role when it failed to get a court order that required J.M. to speak directly to it or when it took a position regarding J.M.’s best interests that was contrary to what it knew to be the expressed views and preferences of its 12 year old client.

[40] It also cannot be said that the conduct of the OCL undermined the fair administration of justice or was patently unreasonable, unfair or indefensible conduct that had a significantly deleterious impact on the litigation.

[41] As the court-ordered assessment made clear, this was a case where there was a real concern about parental alienation and a concern that the child’s views were not independent. Providing legal representation for a child in such cases is a very difficult and very delicate exercise.

[42] In this case, as the trial judge acknowledged, once the OCL expressed a view that was inconsistent with the father’s view, both the father and J.M. refused to cooperate or meet with them. The trial judge found that the OCL acted unfairly in failing to come to court to obtain the court’s assistance to facilitate these meetings. This would have required the OCL to bring motions seeking court orders directed at ensuring that J.M. meet with them. If either the father or J.M. failed to comply with any court orders (which was a real possibility in the face of the father’s history of prior non-compliance with court orders that was adverted to in the trial judge’s reasons), the next step for the OCL to take would be to bring a motion for contempt or to seek enforcement by the police. Findings of contempt can attract significant penalties.

[43] Did the actions of the OCL in not pursuing this course of action undermine the fair administration of justice or amount to patently unreasonable, unfair, or indefensible conduct that had a significantly deleterious impact on the litigation? The OCL had a lengthy court-ordered assessment report, which stated that the assessors had conducted five interviews with the child and administered a number of psychological tests. That report explained how conflicted the child was and that he only expressed negative things about his mother and positive things about his father and paternal grandmother. Thus, there was information about the child’s views and preferences before the court. That information also put the child’s views and preferences in context.

[44] Seeking the court’s assistance to force the child to participate in further interviews with the OCL, on threat of contempt or police, might well have caused further conflict and stress for the child. In the face of this, the trial judge was clearly wrong when he found that the OCL’s failure to take steps to force the child to meet with them justified an award of costs against it. In fact, this is precisely the kind of finding that could “have a chilling effect” (Proulx, para. 36) on the OCL when it comes to either agreeing to act or exercising its best professional judgment as to how to fulfill its role in child custody and access cases where parental alienation may be a factor. As Chappel J. pointed out, the OCL’s task in these cases is a difficult one, involving a “delicate balancing of numerous factors” (para. 36).

[45] The trial judge also justified his award of costs against the OCL because of his concern that the OCL “may have permitted their personal views to usurp their professional function.” Given that the OCL advocated a position that was consistent with the recommendations in the court-ordered assessment, there is no evidentiary basis in the record for this concern.

[46] Finally, the trial judge found that the OCL increased the length of the trial by 20% because its position on behalf of the child “fortified” the position of the mother. Even if this were true, it does not justify an award of costs against the OCL. First, as the trial judge recognized at para. 54, the OCL cannot be found liable for costs “because it took a position that was not accepted by the court.” Second, there is no evidence that the OCL took the position it did because it was seeking to pick sides as between either of the parents in a manner that might be considered to undermine the fair administration of justice. The evidence is that the OCL took the position it did because it was consistent with the findings and recommendations of the court-ordered assessment. This is not conduct that meets the threshold necessary to justify an award of costs. The mere fact that the participation of the OCL may have lengthened the proceedings is not sufficient to merit an award of costs unless its conduct can also be characterized as patently unfair, unreasonable or indefensible.

Conclusion

[47] For these reasons, I would allow the appeal and set aside the order of the trial judge that awarded costs against the OCL. The OCL did not seek any costs of the appeal and, therefore, there will be no order as to costs.

Sachs J.

Wilton-Siegel J.

Myers J.

Released: April 19, 2018

CITATION: Eustace v. Eustace, 2018 ONSC 2367

DIVISIONAL COURT FILE NO.: 26/17

DATE: 2018/04/19

Sachs, Wilton-Siegel, and Myers JJ.

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Emerencia Yamuna Eustace

Applicant (Respondent in the Appeal)

– and –

Ernest Jeyaprakash Eustace

Respondent (Respondent in the Appeal)

REASONS FOR JUDGMENT

Sachs J.

Released: April 19, 2018