Court File and Parties

COURT FILE NO.: FS-18-06661 DATE: 20200508 ONTARIO SUPERIOR COURT OF JUSTICE

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3), which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child—No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family

(9) Prohibition re identifying person charged—The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

RE: E.K.B., Appellant AND: Jewish Family and Child Services, S.K.B. and R.G., Respondents in Appeal AND: Renatta Austin and The Public Guardian and Trustee, Intervenors and the Office of the Children’s Lawyer

BEFORE: Kristjanson, J

COUNSEL: Joseph Kary, for the Appellant Susan M. Sack and Andrea Acri for the Intervenor Ms. Renatta Austin

HEARD: In writing

COSTS ENDORSEMENT

[1] This costs endorsement relates to an appeal from a summary judgment decision in a child protection application brought by Jewish Child and Family Service of Greater Toronto (JFCS): Jewish Family and Child Service of Greater Toronto v. E.K.B, 2019 ONSC 6214. The only party seeking costs is the intervenor, Ms. Renatta Austin, who was appointed as counsel for the Public Guardian and Trustee (PGT) representing the mother, E.K.B., on the summary judgment child protection motion.

[2] Ms. Austin was granted leave to intervene in the child protection appeal: Jewish Family and Child Services v. E.K.B. et al., 2019 ONSC 3942, and was the successful party on a fresh evidence motion opposed by the mother, E.K.B.

[3] In the appeal decision, I found that although E.K.B. did not explicitly raise ineffective assistance of counsel, the appellant alleged the hearing was unfair because her lawyer (Ms. Austin) failed to represent her properly. In the materials relied on by E.K.B., she raised serious allegations against the lawyer of impropriety, misconduct, deception, misrepresentation to a Court, concealment of evidence, and failing to prefer a client’s interests to the lawyer’s own.

[4] In granting intervenor status to her lawyer, I found that E.K.B. was essentially arguing ineffective assistance of counsel, to which the lawyer had the right to respond. Although the appellant stated that she did not intend to impugn the lawyer's conduct or ability as a lawyer or her handling of the appellant's case, I found that the appellant made many statements in the appeal, including in her affidavits, directly and seriously impugning the lawyer's conduct in handling the summary judgment motion. I found that the serious negative allegations about Ms. Austin were unsupported by the evidence, and there were no grounds to find ineffective assistance of counsel or procedural unfairness created by counsel’s conduct.

[5] Ms. Austin seeks costs on a “substantial indemnity basis” of $31,889.99 inclusive of disbursements and HST for the appeal and the fresh evidence motion.

General Principles

[6] Modern family cost rules serve the fundamental purposes of: (1) partially indemnifying successful litigants; (2) encouraging settlement, (3) discouraging and sanctioning inappropriate behaviour by litigants, and (4) ensuring, in accordance with Rule 2(2), that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867 at para. 10. Costs are also a tool “in the furtherance of the efficient and orderly administration of justice”: Mohamed v. Mohamed, 2018 ONCJ 530, para. 91. Reasonableness and proportionality are the touchstone considerations to be applied in fixing costs. Costs in a child protection appeals are governed by the Family Law Rules.

[7] In considering quantum, I must consider the other factors relevant to costs under the Family Law Rules. An award of costs is subject to the factors listed in Rule 24(12) including the importance and complexity of the issues, the reasonableness of each party’s behaviour in the case, the lawyer’s rates, the time properly spent on the case, the expenses, and any other relevant matter. Other relevant factors include Rule 24(4) (the unreasonable conduct of a successful party), Rule 24(8) (bad faith), and the reasonableness of the costs sought by the successful party: Mattina para. 12-13; Berta v. Berta, 2015 ONCA 918 at para. 94. There were no settlement offers.

Child Protection Appeals and Exception Case Warranting Costs

[8] In child protection matters, including appeals, Rule 24(2) of the Family Law Rules provides that the normal presumption that a successful party is entitled to costs does not apply.

[9] E.K.B. argues, citing the Divisional Court in Re S. (D.), (2003), , 39 R.F.L. (5th) 209, [2003] O.J. No. 945 at para. 3, that parents are generally insulated from claims for costs in a child protection proceeding because when faced with state intervention in the care and upbringing of their children, they have a right to force the state to prove its case and should not be penalized in costs. If the parent’s appeal raises genuine issues, was not devoid of merit, and if the parent’s conduct of the litigation was not unreasonable, no costs should be awarded. Costs should not be awarded against a parent save in unusual or exceptional circumstances that are so excessive as to warrant condemnation: Kenora-Patricia Child & Family Services v. M. (A.), [2007] W.D.F.L. 1732 (OCJ); 2005 CarswellOnt 9214. E.K.B. argues that her position was reasonable, even if not upheld by the Court.

[10] The intervenor argues that costs are justified in this exceptional case because:

(1) The intervenor had to intervene to ensure that E.K.B. did not mislead the Court by the inaccurate version of events advanced in her fresh evidence, and to respond to the serious allegations impugning Ms. Austin’s professional integrity and competence;

(2) The intervenor was successful on her fresh evidence motion, which was opposed by E.K.B.;

(3) The intervenor was successful on the appeal in dismissing the claim of ineffective assistance of counsel; and

(4) The allegations made by E.K.B. against the lawyer included very serious allegations, and when unsupported by any evidence as they were here, these types of allegations should attract severe disapprobation.

[11] In Mohamed v. Mohamed, 2018 ONCJ 530, Justice Sherr expressed concern about a self-represented party who attacked the reputations and professional integrity of the lawyers involved in his non-child protection case, including duty counsel who had assisted the litigant. The father claimed that counsel had colluded to defraud and deceive him in obtaining a consent order and raised allegations of negligence. In dismissing the motion, Sherr, J. held as follows about duty counsel:

(a) We want to encourage duty counsel to continue to go “above and beyond” when assisting people at court…The risk of a motion of this nature is that it can result in duty counsel acting much more cautiously and taking a less pro-active approach to cases. This would be a huge disservice to the users of our court (para. 108)

(b) The court is aware that lawyers who take family law cases on legal aid certificates make very little money after paying their practice expenses. Lawyers …will often take these cases due to their commitment to social justice for persons of modest means. Motions of this nature only discourage such lawyers from taking on these cases (para. 109)

(c) This court wants to send a very strong message that unwarranted and reckless allegations of fraud against lawyers who do this work will not be condoned (para. 110).

[12] I find these comments equally applicable to Ms. Austin, who was appointed as counsel for the Public Guardian and Trustee representing E.K.B. as an incapable party in the child protection case. There are few lawyers willing to take on the difficult and often poorly remunerated work of representing parents in child protection cases, and even fewer willing and able to take on the cases of incapable parties. Echoing the comments of Justice Sherr, a strong message must be sent to those who make unwarranted and reckless allegations against trial counsel on appeal. I am concerned with the effect that motions like this can have on lawyers for public bodies, legal aid staff lawyers and lawyers on legal aid certificates where a commitment to access to justice is necessary for the functioning of the court system. Allegations such as these may have a chilling effect on lawyers who seek to provide access to justice for the disadvantaged.

[13] The attack on Ms. Austin’s reputation was serious. She had to retain counsel to defend herself. Of importance, the allegations raised were those that only the lawyer could respond to. They related to the lawyer’s representation, her communications with E.K.B., and her procedural and strategic choices. The Society could not respond to any of the allegations. In that sense the lawyer’s participation was like that of a party, not an intervenor.

[14] On the appeal, I found that the lawyer's strategic and procedural decisions in conducting the summary judgment motion were objectively reasonable. Reviewing the fresh evidence put forth by E.K.B., I found that E.K.B. failed to provide concrete examples of what evidence or arguments she would have presented in the court below that would have filled in the “large gaps” she alleges were left by the lawyer. I found that E.K.B. did not establish a causal connection between the lawyer’s conduct and either the outcome of the summary judgment motion or the appearance of fairness of the proceedings. I found E.K.B. did not establish that the lawyer’s conduct amounted to incompetence, nor that any actions of the lawyer were causally connected to a miscarriage of justice. Given the significance of the allegations for the lawyer’s professional reputation, I find that a robust response was required. The evidence submitted by the lawyer as a result of the fresh evidence motion was critical in responding to the issues raised by E.K.B. on appeal.

[15] I find that the unwarranted and reckless allegations made against Ms. Austin warrant an award of costs.

Quantum of Costs and the Means of the Mother

[16] On a partial indemnity basis, the costs on the fresh evidence motion, inclusive of disbursements and HST, were $10,509.85 (actual rate, $15,464.68). For the two-day appeal, partial indemnity costs inclusive of disbursements and HST were $16,567.96 (actual rate, $24,397.73). The total claim is $27,077.81 on a partial indemnity basis, and $39,862.41 on an actual rate basis. The “actual rate” is the discounted LawPRO rate, eminently reasonable for counsel. The hours and steps taken were reasonable. The materials were very helpful to the court, both the affidavits and written and oral argument. When both counsel attended, the time was not duplicated in the bills.

[17] Here, the Society does not seek costs. Only the lawyer, whose integrity was needlessly impugned, seeks costs, and that lawyer does not seek full recovery costs based on bad faith.

[18] I appreciate that the mother has a minimal income. But litigants cannot “hide behind their impecuniosity” when making unfounded attacks on their lawyers. As stated by Sherr, J. in Mohamed v. Mohamed, 2018 ONCJ 530 at paras. 100-101:

[100] However, a party’s limited financial circumstances will not be used as a shield against any liability for costs, but will be taken into account regarding the quantum of costs, particularly when they act unreasonably. See: Snih v. Snih, . In the case of Takis v. Takis, [2003] O.J. No. 4059 (SCJ), the court found that the respondent’s lack of income and assets, though a relevant consideration, could not be used as a shield in unnecessary litigation.

[101] The court adopts the comments of Justice Heather McGee in Mohr v. Sweeney, 2016 ONSC 3338, 2016, where she writes, “those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings.”

[19] The mother is on social assistance, with little ability to pay costs. This is like the arguments made by the mother, a party in receipt of social assistance, in Sang v. Suteu, 2016 ONCJ 160 at para. 29. As Justice R. Zisman stated in that case, equally applicable here:

No submissions were made on behalf of the mother as to what amount she was prepared to pay or how she was proposing a cost order be paid. It appears that the mother is content to simply permit the court to make a cost order in the knowledge that the father would for all practical purposes be unable to enforce the order as she has no assets and is in receipt of Ontario Works.

If the court simply made a cost order with no payment terms then the purpose of a cost order that is, to indemnify successful litigants, to encourage settlement and discourage and sanction inappropriate behavior by litigants, would be defeated…

[20] I appreciate that a parent in child protection proceedings would not normally expect to pay costs. But a strong message must be sent against attacks on trial counsel which lack an evidentiary foundation. Given all the factors, it is reasonable and proportional to award Ms. Austin costs of $25,000.00.

ORDER

[21] The Order issues as follows:

(1) E.K.B. is ordered to pay costs to Ms. Austin of $25,000.00, inclusive of HST and disbursements.

(2) E.K.B. shall repay the amount of costs at a minimum of no less than $300.00 per month commencing June 1, 2020.

(3) Ms. Austin is not precluded from seeking any additional measures to enforce the payment of costs by E.K.B.

(4) This endorsement and resulting order are effective from the date indicated below and are enforceable without any need for entry and filing.

Justice Freya Kristjanson

Released: May 8, 2020