Court File and Parties

Ontario Court of Justice

Date: September 23, 2013

Court File No.: Orangeville 172/12

Between:

R.N. Applicant

— And —

Ministry of the Attorney General (Crown Law – Civil) Respondent

Before: Justice Patrick W. Dunn

Heard on: September 23, 2013

Reasons for Judgment released on: September 23, 2013

Counsel

R.N. — on her own behalf

C. Torry — counsel for the respondent Society

V. Glasser — counsel for the Ministry of the Attorney General (Crown Law-Civil)

Reasons for Judgment

Introduction

[1] JUSTICE P.W. DUNN:— R.N. brought an application for a court-appointed legal counsel.

[2] Child protection proceedings had been brought by Children's Aid Society of the County of Dufferin in an application dated 19 December 2012. The Society requested that the children J.1, 10 and J.2, 7, be found in need of protection and placed with their father, Ri.N., pursuant to section 57.1 Child Family Services Act, with access to the applicant pursuant to an agreement between the parents.

[3] This application for a court appointed legal counsel was opposed by the Attorney General of Ontario. The Society and the respondent took no position on this application.

Applicant's Position

[4] The applicant's position was that she:

1. had exhausted all appeals under Ontario Legal Aid to obtain a lawyer;
2. could not afford a privately retained lawyer;
3. found the issues so complex that she needed a lawyer;
4. had been told by a Justice that she should have a lawyer;
5. was unable to obtain the kind of cooperation she believed she needed from the society, from the respondent, nor from people doing assessments;

Legal Framework

[5] This court readily acknowledges that it would be beneficial to the applicant to have legal representation. However, the issue is not the need for a lawyer; it is whether the Attorney General of Ontario should be required to fund legal representation for the applicant.

[6] Ms. Glasser's opposition to court appointed counsel was based on two arguments:

1. Ms. Glasser argued that as a Justice in the Ontario Court of Justice, I did not have jurisdiction to hear the application, unless I was to be the trial Justice. However a Superior Court Justice could hear the matter. Ms. Glasser relied on The Queen v McGill, Baron and Haute, OCJ, Sarnia (no citation given). There was no arrangement for me to be the trial Justice, so Ms. Glasser urged that the only forum for the application would be before the Superior Court. I will take no position on this argument.

2. Ms. Glasser's second argument was that the application should be dismissed on the merits. Under this heading, Ms. Glasser was guided by the principles set out in New Brunswick Minister of Health and Community Services v. J.G., [1999] 3 S.C.R. 46. The case dealt with a party seeking court ordered counsel in a family child protection case.

[7] The standards set out in the judgment, as outlined in the case note, were:

1. While a parent need not always be represented by counsel in order to ensure a fair custody hearing, in some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be requested to provide an indigent parent with state-funded counsel.

2. The judicial officer hearing the proceeding may help the unrepresented party, within the bounds of being perceived as an impartial arbiter.

Respondent's Arguments

[8] Ms. Glasser also opined that the applicant's finances were such the applicant should have been able to finance legal representation, and that in certain instances, she allocated funds for personal expenditures that could have been used to pay a lawyer.

[9] In considering the above principles, Ms. Glasser relied on the following facts:

1. The applicant is intelligent and articulate, and holds a diploma in social services work. Her present employment is to assist in managing a legal aid office.

2. The applicant understood the issues in the case. Ms. Glasser stated that R.N. located the correct precedent cases that set out applicable principles of law, and was able to show that she understood them. The applicant was capable of addressing a court on the Child Family Services Act issues.

3. The society's position, and the concerns the court will address in a trial, are not too complex. The main issue is which plan will best meet the children's interests – the society's plan or the applicant's. Given the applicant's good composure in dealing with the issues, her education, her age (forty-four years) and maturity (able to manage an office), the applicant would be able to address the issues and present her own plan of care.

4. The trial judge can assist an unrepresented litigant. Of course, a trial Justice is not allowed to favour an unrepresented litigant (or any litigant even if represented), but there are ways the trial Justice can put a party at ease, by giving some directions in the manner of proceeding, for example.

5. Ms. Glasser argued that the applicant's finances were such that she should have been able to finance a lawyer. Ms. Glasser said the evidence demonstrated that the applicant:

   (a) had monthly earnings totalling $3,471 with an annual income of $40,000;

   (b) lived in her own house alone, with no other legal dependents;

   (c) had discretionary spending of some $357 a month;

   (d) had full-time employment and was reasonably secure;

   (e) did not demonstrate what efforts she made to finance legal representation for herself.

6. The law does not require that an applicant for state funded finances be "destitute" before there will be assistance. The applicant was far from destitute. However, she did not show that she was making every effort to either pay for a lawyer directly, or to finance legal representation through a payment plan.

7. Ms. Glasser pointed out that the Attorney General (Ontario) offered to finance the applicant, on the understanding she would repay the Attorney General (Ontario) with whatever funds were advanced, but the applicant declined the offer.

8. The applicant rejected Ms. Glasser's arguments. She offered to sign over to the Attorney General (Ontario) $7,000 arrears of child support owing by the respondent to the applicant. Ms. Glasser rejected this proposal because:

   (i) The arrears belong to the benefit of children, and the applicant is not entitled to sign them away.

   (ii) The Attorney General (Crown Law Civil) has no effective way to collect the money.

Court's Decision

[10] This court dismisses the application for court funded legal costs.

[11] The reasons are:

1. I do not find the issues too complex for the applicant to understand. As stated previously, R.N., by this stage of the society's litigation, either knows or ought to know why the society was taking the position it did.

2. The applicant is intelligent, and able to articulate her own plan of care for the children. She will be able to question the Society's witnesses on their position. The applicant was correct to comment today that constitutional issues argued today were beyond her understanding. However, there will likely not be such issues in the Society's trial. The fundamental and straight forward issue in the trial will be, which party can best meet the children's needs. The applicant clearly has a position on that issue.

3. I agree that on her own, the applicant would likely not be able to finance a lawyer. As the applicant stated, she has other annual expenditures that were not considered in her budget, such as insurance on her car and house. However, the applicant rejected the offer of assistance from the Attorney General at her peril. The Ministry would have advanced sufficient funds for the payment of a lawyer, but the applicant did not want to enter a repayment schedule. She wanted the funds to be free, without any strings attached. That would not be appropriate, because I find that the applicant's finances were such that she would be able to enter a repayment schedule with the Attorney General that would have been fair.

4. The point I am about to make is a very important rationale for my decision. Even if there was to be an order for state funded financing, the applicant would have a very difficult job finding a lawyer to take the case. She has already approached several lawyers who declined to become involved. So if the applicant found a lawyer, there would be delays while that lawyer familiarized himself or herself with the case. I would even question how long R.N. would be satisfied with the performance of her lawyer, because this applicant is likely going to understand the issues better than her lawyer, since she has lived through the history of the case, and personally knows the important persons involved. This case needs a resolution as soon as possible. I believe that the delay in finding a lawyer acceptable to the applicant, and for that lawyer to come up to speed, will cause delays that are unnecessary when the applicant is capable of representing herself.

5. In her opening statement today, the applicant complained that there were several areas where she not able to obtain information, and she believed a lawyer would assist her in that regard. However:

   (i) The applicant sought information about the respondent's finances that will not be an issue in the society's proceedings.

   (ii) The applicant complained that the assessors did not provide complete information. The applicant herself can seek that information in her cross-examination of the witnesses.

   (iii) The applicant believed there are no child development workers or counsellors helping to reunify the family. The applicant will be able to ask about this issue from the witness(es) proffered by CAS at trial.

6. Although the interests at stake are serious, again the applicant understood the issues and has been dealing with the society on these issues in a competent manner. This ruling on the applicant's application is now completed.

Adjournment

[12] Adjourned to 9:30 a.m. on 6 November 2013 to be spoken to.

Released: September 23, 2013

Justice P.W. Dunn