WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: 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) Idem: order re adult.

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.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: December 15, 2015

Court File No.: Toronto CFO 13 10445 00 A1

Between:

Catholic Children's Aid Society of Toronto, Applicant

— AND —

J.R.C. and G.C.Q., Respondents

— AND —

Attorney General for Ontario

Before: Justice E. B. Murray

Heard on: November 25, 2015

Reasons for Judgment released on: December 16, 2015

Counsel

• Ms. Mei Chen — counsel for the applicant society
• Ms. Tammy Law — counsel for the respondent mother
• Mr. Ian McCuaig — counsel for the respondent father
• Mr. Brent Kettles — counsel for Attorney General for Ontario

MURRAY, E. B. J.:

Introduction

[1] This is my decision on an application under the Charter by J.C. in which she requests that I order the Attorney General to provide her with counsel for a trial in which the Children's Aid Society of Toronto seeks a supervision order against her.

[2] J. is married to G.Q. They are the parents of two children, P., aged 5, and E., aged 2. In June 2013 the Catholic Children's Aid Society of Toronto (CCAS) brought a protection application seeking a finding that the children were in need of protection pursuant to s. 37(2)(d) of the Act, alleging that they were at risk of sexual abuse by G. If a finding was made, the Society requested an order that the children be placed with J., subject to Society supervision and a number of conditions. The conditions included the following:

• G. not to reside in the family home;
• G. to have no access to the children except for periods when supervised by a third party who is pre-approved by the Society.

[3] A protection finding pursuant to s. 37(2)(d) was made on consent on October 2, 2014.

[4] The Society's application is scheduled to go to trial before me on February 1, 2016. J. says she is unable to retain counsel for the trial privately, and her application for a legal aid certificate has been refused. J. has brought a motion asking that the court find that in these circumstances her rights under section 7 of the Charter of Rights and Freedoms are infringed, and order that state-funded counsel be provided to her. In the alternative, she asks that the court appoint amicus curiae.

[5] G. brought a motion seeking the same relief, but I am advised that his motion was resolved, with the result that he will have counsel representing him at trial. G. was represented on his motion by Ian McCuaig, who will also represent him at trial.

[6] When the matter first came before me on October 26, 2015, the application was adjourned to allow the Ministry time to file materials. It was anticipated that J. and G. would be cross-examined on their affidavits on the return date. At the hearing of the motion counsel for the Ministry indicated that he did not wish to cross-examine J.

[7] Counsel for the Ministry of the Attorney General opposes J.'s motion for relief under the Charter. G. supports the motion. The Society takes no position.

[8] The onus is, of course, on J. to establish the Charter breach. In order to succeed, J. must establish on the balance of probabilities the following:

• Her right to security of person under section 7 of the Charter is engaged by virtue of the Society's protection application.
• It would be a breach of the principles of fundamental justice if she had to participate in the protection trial without the assistance of counsel.
• She has exhausted all possibilities of obtaining state-funded counsel.
• She is financially unable to retain counsel—"indigent" for the purpose of this application.

[9] The position of the Ministry is that, unlike G., J. is not threatened with loss of custody of her children in this proceeding, and thus her s. 7 rights are not engaged. If the court finds that J.'s s. 7 rights are engaged, then Ministry counsel agrees that constitutional principles require that she have a lawyer for the trial. Counsel submits, however, that as J. is not "indigent", as that term is understood in the caselaw, the court should not order funding for counsel on her behalf.

1. Background and History of Proceedings

[10] J. and G. were married on September 19, 2009. They live together, and say they are committed to continuing the marriage relationship and raising their children together. J. says that her wish to continue in the marriage is buttressed by her religious principles as a Roman Catholic.

[11] Prior to their marriage, J. and G. were in a dating relationship for several years.

[12] G. was charged and in 2009 pleaded guilty to sexual interference, sexual touching, and sexual assault of J.'s then 7-year old sister. The offences took place from February 2008 to early January 2009.

[13] At G.'s sentencing, the court received an opinion from Dr. Scott Woodside, a psychiatrist and the clinical head of the CAMH Sexual Behaviours Clinic. Dr. Woodside assessed G. Dr. Woodside reported that G. suffers from pedohebephilia[1] and recommended that he "should not have any unsupervised contact with children under the age 16 in perpetuity".

[14] Taking into account the 8 months he spent in pre-trial custody, G. was sentenced to a further 45 days in custody, followed by three years' probation. G. has completed his probationary sentence and treatment at CAMH.

[15] Because J. chose to stay with G. after his offences, she was ostracized by her family members. She currently has no contact with them.

[16] P. was born in 2010. E. was born in 2013. After E. was born, a member of J.'s family contacted the Society and advised them of G.'s convictions.

[17] The Society commenced its application on June 19, 2013. G. retained a lawyer, Lance Talbot, who drafted an answer and plan of care for him. J. signed affidavits drafted by Mr. Talbot supporting G.'s plan.

[18] The Society brought a temporary motion seeking an order that G. be removed from the home and that his access be fully supervised. Mr. Talbot drafted affidavits for G. and for J. for use on the motion.

[19] Justice Heather Katarynych heard the motion on April 2 and 4, 2014. She made an order allowing the parents to continue jointly parenting the children pursuant to Society supervision, and permitted G. to remain living in the home. However, she provided that G. not be alone with the children at any time and that he not sleep at the home in the evenings. He was also ordered to take medication as prescribed by Dr. Woodside to reduce his sex drive. After this order, G. arranged to sleep in the evenings at a cousin's home on a temporary basis.

[20] The protection finding made on October 2, 2014 is based on an Agreed Statement of Facts, executed by G. and J. After the finding was made, G. became self-represented, as he could no longer afford counsel.

[21] J. has never had counsel in this proceeding, save for the lawyer who represents her on this application.

[22] The Society has monitored the compliance of the parents with this order. This monitoring has included, on one occasion, an unannounced attendance by Society workers at the family home at 5:30 a.m., waking J. and the children.

[23] At trial, the Society will seek to rely upon the opinion of Dr. Woodside, which was updated in 2014 for use in this proceeding. His opinion is essentially the same as that provided to the criminal court in 2009.

2. Financial and Educational Circumstances / Efforts to Retain Counsel

[24] J. works as an office assistant. She has a high school education, and completed a 9-month business course at college. She has no training in law or psychiatry. She has never drafted legal documents or presented evidence in a court or cross-examined witnesses. Ministry counsel did not argue that J. was capable of representing herself in this proceeding.

2.1 Cost of a Trial

[25] The cost of retaining a lawyer for a 4-day trial, at Legal Aid rates, would be approximately $15,000.[3]

2.2 Measure of J.'s Ability to Pay for a Lawyer

[26] The parents filed sworn financial statements and briefs of detailed financial disclosure for this application. J. and G. deposit their incomes into a joint account, and pay all family expenses from that account. Because G.'s income is greater than J.'s, he pays a greater share of expenses.

[27] There is disagreement as to whether the court in assessing J.'s application for state-funded counsel should consider her income and expenses alone, as separate from G.'s, or base a decision on family income. J.'s lawyer submits that the court should not assume that G. is willing to finance J.'s legal fees, and that J. should be assessed based on her income only. The Ministry submits that this is a family which functions as a unit financially, and that family income should be the measure of whether J. is indigent.

[28] As set out above, the Attorney General has agreed to provide G. with counsel; under the agreement he is required to pay $200 monthly to a maximum contribution of $7,200.

[29] In my view, my assessment of J.'s ability to pay for a lawyer should be based on her income and her proportionate share of household expenses.

[30] The issue of G.'s ability to pay for a lawyer has already been considered and resolved in his negotiation and agreement with the Ministry. I have no evidence as to the precise basis for the agreement reached, but it is clear that G.'s income, assets and debts—if not the family income and net worth—must have been a critical factor in reaching the agreement. I assume that if the Ministry was of the view that G. was able to contribute more than $200 monthly towards legal fees, that he would have been required to do so.

[31] I set out below the evidence as to each party's income and as to family expenses in order to provide an understanding of the nature of those expenses and the proportionate share which J. is required to pay.

2.3 Income

[32] When this action began, J. was working at employment which paid $13.00 per hour. In July 2015, she left that job to take a temporary position which paid $16.00 per hour. That position ended recently, and J. was not hired back. She has been looking for further employment, without success. Before J. lost her employment, her gross annual income was $30,000,[4] or $2,500 monthly; her net annual was $24,120[5] or $2,010 monthly.

[33] For the time being J.'s only income is from Employment Insurance, which pays $1,300 monthly.

[34] G.'s gross annual income in 2014 was $63,415, and considerably lower for the two years prior.[6] Based on 2015 pay stubs, it appears his gross income this year will be $54,072, and his net income[7] $38,880 or $3,240 monthly.

[35] The gross annual family income was assessed by Legal Aid Ontario as $92,865, based on the income shown in the 2014 tax returns. Ministry counsel advises that this is 3.4 times over the Legal Aid cut-off. The net family monthly income is $5,696, or $68,352 annually.

2.4 Expenses

[36] J. deposes that the requirements of the temporary order in this case—that G. never be alone with the children—led to increased expenses for her. She was required to get a second vehicle, as her hours of work and the hours of the daycare centre did not allow enough time for her to transport the children on public transport.[8] She was also required to register the younger child in full-time daycare.

[37] Set out below are monthly family expenses:

[38] Expenses for which the family submitted documentary evidence for review by the Ministry and the court are starred.

Item	Amount
*Rent	$1,500
*Daycare	$1,191
*Car payments	$353
*Car insurance	$382
*Home insurance	$27
*Enbridge	$107
*Electricity	$73
*Utilities	$42
*G.'s cell	$164
*Bell/internet/tv/phone	$166
Groceries	$600
Household supplies	$50
Clothing, children	$100
Clothing, parents	$100
School fees/supplies	$40
Gas—car	$300
Entertainment	$20
Parking	$50
Repairs/maintenance, car	$100
Total expenses	$5,365

[39] In addition, G. is paying $200 monthly pursuant to his agreement with the Ministry.

[40] J.'s lawyer suggests that in assessing J.'s ability to pay for a lawyer for herself, I should consider that she is paying "her half" of the expenses. I see no basis to do so. In my view, J.'s expenses are more correctly understood as her proportionate share of household expenses. This reflects the actual practice of the parents, who deposit their incomes into a joint account, and pay expenses from that account.

[41] Calculated on the parties' net incomes, J.'s share of those expenses is 38%.[9] J.'s proportionate share of expenses is therefore $2,038 monthly, leaving her with a deficit of $28 monthly.

2.5 Assets/Debts

[42] J.'s only significant asset is her interest in a small RESP that she and G. have paid into for the children. The car which J. acquired because of the restrictions imposed by the temporary order is valued at less than what she owes on it. Her one-half of the RESP is valued at $2,750, including the government contribution. J. is reluctant to cash the RESP because the government contribution will be lost, and there will be additional tax payable.

[43] J.'s net worth is $1,180 if the value of the RESP is included; if it is not, her net worth is a negative -$1,575.

[44] G.'s significant assets are his car, an older vehicle, and ownership with J. of the children's RESP. If the value of one-half of the RESP is taken into account, his net worth is $2,326.

2.6 Efforts to Find a Lawyer

[45] J. sets out in her materials her efforts to fund a lawyer:

• She applied to Legal Aid Ontario (LAO) when the action started. The application was not processed, as the family's income was beyond the Legal Aid cut-off.
• The family retained Mr. Talbot to represent G.; they had no money for a lawyer for J. Mr. Talbot billed $6,000, of which $2,000 is still owing. Mr. Talbot's retainer ended in October 2014.
• J. and G. both applied for bank loans in efforts to fund a lawyer. They were turned down, as they both went bankrupt within the last few years (after the expenses associated with G.'s criminal case and with the costs of the treatment recommended by Dr. Woodside).
• After it became clear that the Society's application was going to trial, J. again applied to LAO and was turned down by the Area Committee and the Provincial office because of the level of the family's income.
• As set out above, in order to attempt to boost her income to fund a lawyer, J. took a new job which had higher pay than her former employment, but which was temporary.

3. Section 7 Charter Rights and State-Funded Counsel

[46] Section 7 of the Charter provides that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

[47] The right to security of person has been held by the Supreme Court of Canada to protect both the physical and psychological integrity of the individual.[10]

[48] The right to state-funded counsel in a child protection proceeding was first recognized by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46. In that case, the Minister had temporary custody of a mother's children, and sought a further 6-month order of custody. Mother was without counsel. She was supported by social assistance, and could not privately retain a lawyer. The New Brunswick Legal Aid program at the time did not provide for funding for counsel in such cases.

[49] The Supreme Court in G. (J.) found that the s. 7 protection of a person's physical and psychological security extends beyond the sphere of criminal law, and can be engaged in child protection proceedings. The court found that the Minister's application to extend the custody order was a prospective violation of Mother's s. 7 rights to security of person, that in the circumstances of that case the restriction on her security of person would not be in accordance with the principles of fundamental justice if she was required to proceed without counsel, and that the appropriate remedy under s. 24 would have been to order the funding of counsel for Mother.[11]

3.1 Security of Person

[50] Speaking for the majority in G. (J.), Justice Antonio Lamer addressed the effect on an individual's psychological integrity required to establish a s. 7 breach:

Delineating the boundaries protecting the individual's psychological integrity from state interference is an inexact science. Dickson C.J. in Morgenthaler, supra, at p. 56, suggested that security of the person would be restricted through "serious state-imposed psychological stress". Dickson C.J. was trying to convey something qualitative about the type of state interference that would rise to the level of an infringement of this right. It is clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action…… For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person's psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.[12]

[51] The Court observed that "not every state action which interferes with the parent child relationship will restrict a parent's right to security of person." For example, if a child is sentenced to jail or conscripted into the army, although the parent may suffer significant anxiety, this state action will not constitute an interference with the parent's constitutional rights because the state "is making no pronouncement as to the parent's fitness or parental status, nor is it usurping the parental role or prying into the intimacies of the relationship".[13]

[52] Justice Lamer went on to find that the state removal of a child from a parent's custody is a serious interference with that parent's psychological integrity:

I have little doubt that state removal of a child from parental custody pursuant to the state's parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent. The parental interest in raising and caring for a child is, as La Forest J. held in B. (R.), supra, at para. 83, "an individual interest of fundamental importance in our society". Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere. Further, the parent is often stigmatized as "unfit" when relieved of custody. As an individual's status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state's conduct.

[53] Justice Lamer also observed that the separation of a child from a parent would "unquestionably" have profound effects on the child.[14]

3.2 Principles of Fundamental Justice

[54] Justice Lamer went on to consider whether the principles of fundamental justice required that the mother in G.(J.) have counsel. He acknowledged "that the state may relieve a parent of custody when necessary to protect a child's health and safety", but found that the principles of fundamental justice require that there be a "fair procedure for making this determination."[15]

[55] In determining what will constitute a fair procedure for such a decision, Justice Lamer set out the following principles:

• A parent must have an opportunity to present his or her case effectively, so that the court may assess the best interests of the child based on all the relevant evidence.
• Whether a parent must have counsel in order to do this depends on the circumstances. Factors to be considered include the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent.
• Protection proceedings are adversarial in nature, and the parties are responsible for planning and presenting their case. A parent must adduce evidence, cross-examine witnesses, make objections on evidentiary issues, and present legal defences "in what is to many a foreign environment, at a time when they are under significant emotional strain".

[56] In G. (J.), the Minister intended during a three-day trial to present 15 affidavits, including reports from two experts. Justice Lamer concluded:

"In proceedings as serious and complex as these, an unrepresented parent will ordinarily need to possess superior intelligence or education, communication skills, composure, and familiarity with the legal system in order to effectively present his or her case."

Justice Lamer found that there was no evidence to suggest that the mother in G. (J.) "possessed such capacities".

3.3 Remedy: An Order for State-Funded Counsel

[57] The court held in G. (J.) that if a potential s. 7 breach was established, s. 1 did not save the breach. Justice Lamer noted that "there are only two possible remedies a judge can order under s. 24(1) to avoid a prospective s. 7 breach where the absence of counsel for one of the parties would result in an unfair hearing: an order that the government provide the unrepresented party with state-funded counsel, or a stay of proceedings."

[58] Finding that it was clearly inappropriate to order a stay in protection proceedings in which the safety and best interests of a child were at issue, Justice Lamer found that the only alternative was an order for state-funded counsel.

3.4 Inability to Afford a Lawyer

[59] In G. (J.) the court held that the remedy of an order for state-funded counsel was available, provided that the applicant established inability to pay for a lawyer. Justice Lamer did not engage in an analysis as to what test a court should employ to assess inability to pay. At one point Justice Lamer referred to "the parent (who) wants a lawyer but is unable to afford one"[16]; at another he referred to the "indigent parent".[17] The analysis was unnecessary, because it was obvious that the parent in G. (J.), who was supported by public assistance, could not afford a lawyer.

[60] Justice Lamer did provide that in future applications for state-funded counsel in protection proceedings the court should, in addition to assessing the applicant's ability to pay for a lawyer, consider whether an applicant has exhausted all possible avenues for obtaining state-funded legal assistance.

3.5 This Application

[61] In terms of the test that J. must meet to succeed in her application, two issues are agreed upon:

• As stated above, if the court finds that J.'s s. 7 rights are engaged, then constitutional principles require that she have a lawyer for the trial. Ministry counsel did not question that J. would require counsel separate from G.
• J. has applied for legal aid and exhausted all possible avenues for otherwise obtaining state-funded counsel.

[62] J. must still establish the following:

• Her right to security of person is engaged by the Society's application.
• She is unable to afford a lawyer or "indigent" for the purpose of this application.

[63] I turn to a consideration of the first issue.

4. Security of Person in This Case

4.1 Arguments of the Parties

[64] J.'s lawyer argues that there is nothing in the reasoning of G. (J.) that restricts the principles articulated to cases in which an order for Society or Crown wardship is requested. Counsel submits that the relief requested by the Society is an "extraordinarily" intrusive order, an order so restrictive to J. as a parent and as a spouse that it is clearly an infringement of her section 7 rights when considered in light of the principles set out in G. (J.).

[65] Counsel says that the supervisory terms requested by the Society restrict J.'s ability to make "fundamental decisions" about her children and forces her to separate from her husband and to become a single parent. Counsel says that these terms and ongoing Society inspection (to monitor compliance with the supervision order) are "an intrusion into a deeply private and intimate sphere which is fundamental to her personal and religious identity". Counsel argues further that it is stigmatizing to J. that she will be identified to the world as a mother who cannot be trusted to make decisions about her children.

[66] Counsel submits that the order requested by the Society, if granted, will cause J. significant psychological stress in the following ways:

• J. will be forced to become a single parent, solely responsible for the children's care. Prior to Society intervention and the temporary supervision order, G. had been an involved parent, and, in J.'s view, a good parent. Even now, J. finds it difficult and stressful to work full time, care for the children, and supervise all of G.'s contact with the children.
• Supervision by the Society has already caused and will continue to cause J. extreme anxiety manifested in weight loss, hair loss, and insomnia. Supervision in this case may well continue for years, given Dr. Woodside's opinion that G. must not be permitted unsupervised contact with children under 16 in perpetuity.
• The enforced separation of the spouses which will result from the order sought will also have a significant negative effect on J.'s psychological integrity. J. is committed to her relationship with G., and believes that he is truly contrite for his offences against her sister. She wishes to continue the marriage relationship, but fears that the enforced separation created by the order will doom the marriage.

[67] Ministry counsel submits that J.'s s. 7 rights are clearly not engaged in this case by virtue of the relief claimed by the Society. He argues as follows:

• The Supreme Court in G. (J.) set out principles that mean that state-funded counsel may be ordered only in the exceptional case, a case in which a Society proposes to remove a child from a parent, when the parent is indigent, in circumstances in which it would be "unfair" for a trial of the claim to take place if the parent does not have legal assistance. There is no general right to state-funded counsel in protection proceedings.
• In the instant case, J.'s s. 7 rights are not infringed by the relief claimed. The Society does not seek to remove the children from her, but is content to leave them in her care. There is no prospect that J. will be stigmatized as an "unfit mother" if the Society succeeds in its claim.

[68] Counsel acknowledges that the order sought by the Society may cause J. to suffer stress and anxiety, but says that the interference with her psychological integrity that may be caused by a supervision order does not rise to the level required to meet the high bar for establishing a s. 7 breach. Counsel says that it is not any stress caused by state action that will ground a s. 7 breach, only actions which directly interfere with the parent's custody of a child.

[69] Ministry counsel cited two cases in support of the argument that state interference with parental rights, short of a claim for custody, cannot ground a s. 7 breach.

[70] My review of those cases does not support this argument:

• In I.T. & R.T. v. the Children's Aid Society of Ottawa and Attorney General for Ontario, 2013 ONSC 6724, the Society was requesting that children be placed with their mother under supervision, with no access or supervised access to Father. Father, a paralegal, had been denied Legal Aid and applied for an order for state-funded counsel. His initial Legal Aid certificate had been cancelled because he had concealed property. The order sought by Father was opposed by Mother, the Society, and the Ministry. Justice Lalonde stated that counsel for the Attorney General had assured the court that the Province of Ontario "did not entertain such applications" when the protection proceeding did not request Crown wardship; he did not go on to consider this submission except to find that the action was essentially a private "custody and access dispute with mother", not a dispute with the state which would engage s. 7 despite the fact that a Society was involved. Justice Lalonde denied the application, finding that Father had not demonstrated that he could not pay for counsel and that Father was capable of representing himself.

• P.B. v. Minister of Community Services & S.B., 2014 NSSC 182, was an appellate decision by the Nova Scotia Supreme Court dealing with a father's application for state-funded counsel in his application to set aside or vary an order granting the Minister permanent custody of his children. The Minister argued that the application did not raise issues which would engage Father's s. 7 rights because the action did not concern a claim for removal of the children from his care. Rather, the potential psychological injury to Father in the application resulted from the possibility that he might be unsuccessful, not because of state action. The court rejected that argument, finding that the Minister's opposition to the application and the Minister's "ongoing interference with P.B.'s parent-child relationship with his children" was a state action which threatened his right to security of person. Ultimately, Father was denied state-funded counsel for other reasons.

4.2 Analysis: Is S. 7 Engaged?

[71] There is no principled reason to restrict consideration of the potential breach to s. 7 rights posed by a protection proceeding to cases in which a parent is threatened with loss of custody.

[72] G.(J.) involved a claim by a government agency for custody of a child, but the court did not limit the application of its reasoning to such cases. Justice Lamer in G. (J.) held that the key to establishing a restriction of security of person in a protection proceeding is:

• that a state action would label a parent as unfit, "usurp the parental role", or pry into the intimacies of the parent/child relationship; and
• that the state action would have a "serious and profound effect" on the person's psychological integrity.

[73] It seems obvious that very intrusive state action short of a claim to remove a child from a parent's custody could have such an effect.

[74] In this case, the order claimed by the Society would usurp and restrict J.'s role as a parent in very significant ways:

• J. will not be permitted to make decisions about her children which would allow them to be cared for by their father at any time.
• J. will become a single parent by virtue of state action, and suffer all the stress and anxiety that is the result of that transition. She alone will be responsible for maintaining employment and caring for two young children.
• J. will not be allowed to determine when or where or under what conditions the children might see their father. She will have to insure that they do not see him, except when supervised by persons pre-approved by the Society.
• The Society will be authorized to take very intrusive actions into J.'s family life to monitor compliance. Workers may come to the home for unannounced visits at any time of day or night. They will be able to interview the children, speak to the children's daycare providers, teachers, and the family doctor, and canvass neighbours. Given the Society's view of the matter (that G. should have supervised access in perpetuity), that intrusion could well extend for years, up to the time that E. reaches the age of 18.[18]

[75] In addition, it is important to note there is a real possibility that J. could lose custody of the children as a result of the trial. Although the Society now requests a supervision order, its view set out in its Plan of Care is that J. does not recognize and accept the risk which G. poses to the children. The court is not restricted in ordering a disposition to the relief requested by the parties. It is open to the court to make any order available under s. 57 of the Act—including orders for Society or even Crown wardship—if the court finds that the order is in the best interests of the children.

[76] The order sought by the Society could also have a serious effect on the children's psychological integrity. If the order is made, they will be raised by a single parent, and not have the daily support and love provided by a father. Their contact with him will be restricted and monitored by the state. A good parent/child relationship cannot be maintained and nurtured through brief supervised visits.

[77] J.'s evidence is that she has already suffered serious anxiety and stress as a result of the current restrictions placed upon her by the temporary supervision order, and expects that her physical and emotional health will deteriorate further if G. is ordered out of the house and she becomes a single parent.

[78] The stress that will be caused by the order requested by the Society is beyond what could be considered "ordinary". The order requested by the Society, assessed objectively and from the point of view of a person with "reasonable sensitivity", would have a "serious and profound effect" on that person's psychological integrity.

[79] I find that in this case, J.'s s. 7 rights are engaged by virtue of the Society's claims.

[80] My finding should not be taken to mean that any claim for a supervision order engages a parent's s. 7 rights to security of person. Cases will vary, depending upon the particular conditions requested by a Society, the intrusiveness of the order sought, and the potential effect upon that parent's psychological integrity.

5. Inability to Afford a Lawyer / Indigence

5.1 What is "Indigence"?

[81] There is no precise definition of indigence contained in the jurisprudence on the right to state-funded counsel in protection proceedings.

[82] Some courts adopt a rigorous standard, reflecting their understanding of the test set out in Rowbotham applications in criminal cases, as developed further in the B.C case R. v. Malik. In this approach, "applicants must exhaust all options for raising funds for legal expenses and applications can be refused if the applicant fails, even unintentionally, to demonstrate foresight and prudence in managing his or her finances over what can be an extended pre-trial period".

[83] For example, in Huron-Perth Children's Aid Society v. J.J., 2006 ONCJ 534, Justice George Brophy held that the applicant must present detailed financial evidence to demonstrate the following:

• (a) extraordinary financial circumstances;
• (b) attempts to obtain funds to retain counsel;
• (c) prudence with expenses and prioritization of payment of his legal fees;
• (d) efforts to save for the cost of counsel and to raise funds by earning additional income;
• (e) he has made all reasonable effort to use his assets to raise funds, for example by obtaining loans;
• (f) whether he is in a position to pay some of the costs of counsel;
• (g) the income and assets of his spouse and family.

[84] Justice Brophy acknowledged that the applicant father did "not make a lot of money", and that it would be very difficult on his income to fund a trial that would cost $15,000. However, Justice Brophy denied the application, holding:

He (the Applicant) is in no better or worse position than anyone else who does not qualify for legal aid. Further he has not been prudent in marshalling his resources to allow him to retain counsel privately. He had a year and a half from the commencement of this action to properly save sufficient money to be in a position to retain counsel privately. If he had properly arranged his affairs and sought counsel early on and arranged for a payment plan with that lawyer, it may well be that he could have retained counsel privately.

[85] Other courts employ a less stringent standard, noting that, unlike criminal cases, in protection proceedings the interests of children are involved. In British Columbia (Director of Child, Family and Community Service) v. T.L., (2009) B.C.J. 1851 (Prov. Ct.), Justice K.D. Skilnick observed as follows:

These cases do not establish any hard and fast rules about when a family litigant will be considered to be indigent. They do support the principle that one may have an income outside of the guidelines for legal aid coverage and yet still be indigent. The cases also suggest that a determination of this question will turn on such factors as the length of the case, the estimated cost of counsel, whether it is possible for the applicant to afford counsel with a reorganization of finances and whether or not the party has been diligent in making the necessary arrangements to obtain counsel. All of these factors must be considered under the umbrella of the guiding principle that the goal sought to be achieved is procedural fairness.

[86] Justice Skilnick reviewed the financial situation of the parents, who had a net family income of $3,518 monthly and who had no children in their care.[22] They were attempting to regain custody of their children from the Minister. Justice Skilnick found that the parents had little spending beyond what was necessary to meet basic expenses and observed that their budget did not have "sufficient wiggle room to meet an emergency or other unforeseen expense such as the cost of a lawyer".

[87] Justice Skilnick found that the parents were indigent for the purpose of their application for state-funded counsel, and granted the order sought.

[88] Justice Skilnick was upheld on appeal by the B.C. Supreme Court in British Columbia (Director of Child, Family and Community Service) v. T.L., 2010 BCSC 105. This appears to be the only appellate decision in Canada on the issue of the appropriate financial test on applications for state-funded counsel in protection proceedings. The other decisions brought to my attention (5 in all, including 2 from the Ontario Court of Justice) are all decisions at trial level.

[89] It is worth noting that the Ontario Court of Appeal in a recent criminal case, R. v. Rushlow, set out a less restrictive approach to a financial test for the appointment of state-funded counsel than that found in R. v. Malik. The accused in Rushlow was charged with arson and had been denied legal aid. He made a Rowbotham application at trial, which was denied, and he was convicted. He appealed; the sole ground of appeal was the denial of his application for state-funded counsel. The court allowed the appeal. Justice Marc Rosenberg stated that he was:

concerned that the test adopted by the trial judge may have placed undue weight on the impact her order might have on the administration of legal aid. As pointed out above, when considering whether to make an order appointing counsel, the trial judge does not sit in review of decisions of the legal aid authorities. It was not the trial judge's concern how the decision to appoint counsel in this case would impact on Legal Aid Ontario's operations.

[90] Justice Rosenberg observed that evidence of the applicant's indigence "contained shortcomings", noting that "money that might have been used to retain counsel was unavailable" because of the applicant's decision to incur new debt and that the applicant "may have made poor financial decisions". Despite this, Justice Rosenberg found it significant that the applicant had not made a "calculated decision" not to devote money to retaining counsel. Justice Rosenberg found that if the trial judge had sufficiently considered the issue, it was probable that she would have found that the applicant "lacked the financial resources to retain counsel for the trial". When compared to the Malik approach, the approach found in Rushlow is more focused on an applicant's present circumstances, and slower to deny an application based on a lack of prudence in managing one's financial affairs from the beginning of the case, unless it is shown that an applicant has deliberately depleted assets in order to avoid paying for a lawyer.

5.2 Arguments of the Parties—Financial Eligibility

[91] J. submits that the court should employ the less stringent standard of indigence featured in T.L., but argues that regardless of the test employed, she should be classed as "indigent" when determining whether she is able to afford counsel.

[92] Counsel says that the assessment of "indigence" must be done in the context of a particular case, and argues as follows:

• J.'s financial circumstances are "extraordinary", as she has to support her share of the children's expenses and attempt to fund a trial on an income of $30,000 per year.
• J. has made reasonable efforts to obtain counsel.
• J. is "prudent" in her expenditures. The expenses which she has are what is required if you are a working parent in the Toronto area and have two young children to support.
• It is not reasonable to expect that J. would be able to pay $15,000 for counsel for a 4-day trial.

[93] Ministry counsel submits that while a less stringent standard of indigence may be used in other provinces on applications such as this, in Ontario the accepted approach is still the stricter test seen in Huron-Perth Children's Aid Society v. J.J., 2006 ONCJ 534.

[94] Whatever test is used, however, counsel argues that it is clear that J. cannot be classed as indigent for the purpose of an application for state-funded counsel.

[95] Counsel argues that in order to succeed, J.'s situation must be "extraordinary", and it is not. J.'s situation is the situation of many middle class families. Counsel says that considering the family income, J. should be in a position to retain counsel. He says that, although this action commenced in 2013, there is no evidence of efforts to reduce expenses and save money over the past two years, or of an attempt to obtain additional employment.

[96] Ministry counsel points to applicants with far less income than this family who have been denied state-funded counsel on the basis that, with prudent and timely financial management, they should be able to pay for a lawyer.

5.3 Analysis / Financial Eligibility

[97] All the cases cited by counsel acknowledge that an applicant can be above the applicable Legal Aid cut-off and still be financially eligible to be considered for an order for state-funded counsel. Still, in some cases, there is a tendency to refer to that cut-off as an indigency benchmark. The rationale of that approach may be in question, given the failure of Legal Aid plans to keep their guidelines for financial eligibility in line with changes in the cost of living.[25]

[98] The appeal court in British Columbia (Director of Child, Family and Community Service) v. T.L. spoke of two respects in which applications for state-funded counsel in child protection proceedings differ from those applications in criminal proceedings.

Applications are not "rare and exceptional"

[99] In response to the argument of the Ministry, the B.C. appeal court held that courts considering applications for state-funded counsel in protection cases should not start from the premise that the case must be "extraordinary" or "rare and exceptional". Justice E. J. Adair noted that although the words "rare" and "exceptional" may be found in Rowbotham, the Supreme Court of Canada did not employ this language in G.(J.). In fact, at paragraph 125 of that decision Madame Justice L'Heureux-Dube stated:

Taking into account all these factors, it is likely that the situations in which counsel will be required will not necessarily be rare….. The trial judge's duty to ensure a fair trial may therefore, when necessary, involve an order that the parent be provided with legal counsel, and trial judges should not, in my view, consider the issue from the starting point that counsel will be necessary to ensure a fair hearing only in rare cases.

The Interests of Children are Involved

[100] In British Columbia (Director of Child, Family and Community Service) v. T.L. the Attorney General argued that the parents' financial disclosure was not sufficiently comprehensive, and that the application for state-funded counsel should be adjourned until further disclosure was made. The appeal court observed that a significant difference between applications for state-funded counsel in protection cases, as contrasted with criminal cases, is that "in the child protection context, it is not simply a contest between the applicant for state-funded counsel and the state. Obviously, children are also involved." The court held that an adherence to exceptionally rigorous standards of financial disclosure could put a timely and "fair determination of children's best interests at risk".

[101] Ultimately the appeal court in T.L. found that the strict test for financial eligibility found in what it described as the Rowbotham-Malik approach should not be followed in protection cases, and upheld the more flexible and contextual approach of Justice Skilnick.

[102] In my view, the approach taken by the court in T.L. to determining financial eligibility of an applicant for state-funded counsel is the appropriate approach in a child protection case.

[103] I agree that the Supreme Court of Canada in G.(J.) gave no direction that applications for state-funded counsel in child protection cases should only be considered if the applicant's situation was "extraordinary", or that a court should consider such applications with the presumption that they will be "rare".

[104] I also agree that the fact that children's interests are at the center of protection applications dictates that a principled but less stringent standard of indigence than that following the Rowbotham/Malik approach should be used in dealing with applications for state-funded counsel. It is not just in parents' but in children's interests that protection applications be determined fairly.

5.4 Can J. Afford a Lawyer?

[105] I turn to the consideration of J.'s financial situation. As set out above, I consider her financial situation alone, as consideration of G.'s situation was already made in the process of his reaching an agreement with the Ministry to provide him with counsel.

[106] Is J. able to afford counsel? The answer is, plainly not.

[107] The cost of a lawyer for a four-day trial at Legal Aid rates is $15,000. That amount is more than 60% of J.'s net income.

[108] J.'s lawyer submitted that I should assess J. as someone whose income is $30,000, even though currently her income is much less. Given that position, I proceed on the basis that the income which J. has available to her is the net income she would have from gross income of $30,000, which is $24,120 or $2,010 monthly.

[109] From J.'s net income of $2,010 monthly she must support herself and contribute to her share of the children's costs. As set out above, that requires $2,038 monthly, leaving her with a small deficit. There is next to no discretionary spending in her budget. J. had been putting $50 monthly aside for contributions to an RESP for the children, but she has abandoned that practice.

[110] In some cases in which an applicant was found to be financially ineligible for an order for state-funded counsel, the court has found that a "rearranging of priorities" could enable him or her to pay for a lawyer. For example, in Huron-Perth Children's Aid Society v. J.J., the court noted that the applicant spent $240 monthly on alcohol, tobacco and entertainment and contributed $300 monthly to the purchase of an RRSP and $300 monthly to assist his mother. In denying the application, the court observed that he could have devoted these funds to retainer of a lawyer.

[111] In this case, J. has no expenses of this sort—she is paying for housing, daycare, transportation, and groceries. There might have been argument that the family's housing cost could be somewhat reduced, but this issue was not explored in cross-examination or touched upon in argument.

[112] J. has made reasonable efforts to obtain a lawyer, applying for Legal Aid at the outset of the case and more recently. Ministry counsel suggests that efforts to borrow money or reduce expenses or increase income should have been made by her from the beginning of the case in June 2013. I do not agree.

[113] The record indicates that there were several conferences in the case and a meeting by counsel and the parties to explore resolution, and that the family devoted their savings to retaining counsel for G. during that time. It was only in October 2014 that it became clear that the case would go to trial.

[114] It is at that time that one might have expected J. to make efforts to maximize income or cut expenses to enable her to retain counsel. In this case, however, the condition of the temporary supervision order—that G. never be left alone with the children—made it impossible for J. to seek additional employment, and triggered additional expenses for her. J. has no family who could assist in supervising the children. Because she could not leave G. alone with the children, she could not seek additional employment and had to put E. in full-time daycare. J. could not within her hours of work reach the daycare centre before closing time traveling on public transit and could not rely on G. to pick the children up, and thus had to obtain a second vehicle.

[115] J. has tried and been unable to borrow money from a bank to fund a lawyer. She is unable to borrow from family. She would be able to cash her share of the children's RESP of $2,750 to contribute to a retainer. That action would yield less than $2,750, because the government contribution would be lost and tax would be payable on the income held in the fund. It would not be a prudent financial decision, but it would have been reasonable if LAO had required J. to contribute the amount that would be generated from this encashment in order to obtain a certificate. I have no evidence that LAO made that proposal.

[116] I have no evidence as to the exact amount that would be generated if J. cashed the RESP, but it is clear that the amount resulting could not pay for a lawyer for this trial. It might serve as a retainer, but only if followed by substantial monthly payments which J. cannot provide on her income.

[117] I find that J. is indigent for the purpose of this application.

6. Order

[118] I have found that J.'s s. 7 rights to security of person are engaged by the Society's application.

[119] It is agreed and I hold that given this finding, constitutional principles require that J. have a lawyer in order that the trial be fair.

[120] I have found that J. is indigent for the purpose of this application.

[121] I order that the Attorney General provide J. with counsel for the trial, to be paid at Legal Aid rates and pursuant to Legal Aid policies.

Released: December 16, 2015

Signed: Justice E. B. Murray

Footnotes

[1] A sexual preference for pubescent and prepubescent children

[2] At the argument of the motion, counsel filed a thick brief of financial disclosure from Jennifer and Giovanny. No reference was made to the information in this brief in argument or in the factums. Ministry counsel did say that the family has moved out of Toronto to save money on rent, but gave no information as to how the move affects the overall financial picture. For the purpose of this decision, I have considered the information with respect to the parents' financial situation set out in the affidavits and financial statements.

[3] Based on the Legal Aid rate payable for Ms. Law, J.'s lawyer on this application.

[4] 2014 Notice of Assessment shows income of $29,450. $30,000 figure takes into account increase in July, and EI latter part of the year

[5] Calculated deducting average tax, EI and CPP payments in 2014 and 2015

[6] $48,782 in 2013 and $37,308 in 2011

[7] After payment of tax, EI, CPP and union dues

[8] G. requires a car to travel to job sites.

[9] Net incomes = J. $24,120; G., $38,880.

[10] R. v. Morgenthaler, [1988] 1 S.C.R. 30 at 173

[11] The case was decided by the Supreme Court after the trial was completed with mother being represented by duty counsel

[12] My emphasis

[13] At para. 64 & 65. My emphasis

[14] At para. 57. This view was also taken in Re. R.T., 2004 SKQB 503

[15] At para. 70

[16] Para. 104

[17] Para. 82

[18] Given my conclusion as to the threat to security of person established by the Society's action, I have not dealt with the argument of J.'s counsel that the threat to J.'s marriage relationship posed by the action infringes J.'s liberty interest.

[19] R. v. Rowbotham, 25 O.A.C. 321 (C.A.)

[20] 2003 BCSC 1439

[21] Kehoe, Kate and Wiseman, David, Reclaiming a Contextualized Approach to the Right to State-funded Counsel in Child Protection Cases, (2012) U.N.B.L.J., PP. 163-212.

[22] As the children were in the temporary custody of the Director

[23] 2009 ONCA 461, 96 O.R. (3d) 302

[24] E.g., In the matter of the Child and Family Services Act and in the matter of B.C.S. v. P., 2009 SKQB 50, the court denied state-funded counsel to an applicant whose income was $2,000/mo., based on a lack of evidence that she was managing her funds prudently.

[25] Kehoe, Kate and Wiseman, David, supra note 14

[26] 2006 ONCJ 534