Court File and Parties

Court File No.: Halton 439/15 Date: November 28, 2016 Ontario Court of Justice

Between:

V.F. Applicant

— AND —

J.F. A.T.-F. Halton Children's Aid Society Respondents

Before: Justice Marvin Kurz

Reasons for Costs Ruling released on: November 28, 2016

Counsel

Martha McCarthy / Jenna Beaton — counsel for the respondent (J.F.)

Herschel Fogelman — counsel for Lorne Glass, counsel for the applicant

KURZ J.:

Introduction

[1] Just as 13 year old V.F. sought a rare order by bringing her own child welfare proceeding, her father, J.F. ("the father"), who was successful in having the proceeding dismissed, seeks another rare order. He asks that his full indemnity costs of $39,715.00 be paid personally by his daughter's privately retained counsel, Lorne Glass.

[2] On March 1, 2016 I dismissed V.F.'s child protection application because it is an abuse of process and it raises no triable issue. In essence, the father argues that Mr. Glass should pay his full costs because he acted improperly. He claims that Mr. Glass:

a. Acted in bad faith in bringing this proceeding that is an abuse of process;

b. Brought a wasteful proceeding; one demonstrably devoid of merit;

c. Wasted the time of the court in regard to the evidence of Mr. Blugerman;

[3] In response, Mr. Glass argues that:

a. To order costs against counsel, it is not sufficient to find that a proceeding in which he acted is an abuse of process. Rather, the court must find that the lawyer's conduct constitutes an abuse of process. Here, Mr. Glass' conduct of this proceeding on behalf of V.F. did not amount to an abuse of process;

b. I found that V.F. was acting in support of her mother, yet the father did not seek costs against A.T.-F. ("the mother");

c. Before awarding costs against a solicitor, I must apply the "extreme caution" test first articulated by the Supreme Court of Canada in Young v. Young, and described in greater detail below; and

d. In any event, the amount claimed by the father's counsel is excessive.

Authority to Award Costs Generally and Personally Against Counsel

[4] The authority to award costs of a proceeding or step in a proceeding derives from s. 131 (1) of the Courts of Justice Act, which reads as follows:

131. (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[5] The court's authority to award costs personally against counsel arises from subrule 24(9) of the Family Law Rules, which reads:

COSTS CAUSED BY FAULT OF LAWYER OR AGENT

(9) If a party's lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,

(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;

(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;

(c) order the lawyer or agent personally to pay the costs of any party; and

(d) order that a copy of an order under this subrule be given to the client.

[6] Pursuant to subrule 24(10), costs are to be decided promptly after each step in the case.

[7] In Rand Estate v. Lenton the Ontario Court of Appeal found that the determination of costs against counsel requires a holistic and contextual approach to the conduct of an entire proceeding in order to "…produce an accurate tempered assessment..."

[8] The parties agree and the case law confirms that the test for determining costs against counsel is a two part one. First, did counsel cause costs to be unnecessarily incurred? Second, should the court exercise its discretion to impose costs against counsel despite the requirement that it use extreme caution before doing so (see Galganov v Russell (Township))?

[9] Decisions granting costs against lawyers are quite rare. As the Divisional Court stated in Carleton v. Beaverton Hotel:

I agree with the appellant's submission that the 'extreme caution' which courts must exercise in awarding costs against a solicitor personally as stated in Young v. Young, means that these awards must only be made sparingly, with care and discretion, only in clear cases and not simply because the conduct of a solicitor may appear to fall within the circumstances described in rule 57.07(1).

[10] In Galganov, the Ontario Court of Appeal reviewed a number of cases in order to determine the principles that apply to the determination of costs against a lawyer in a proceeding in which he or she has acted. It did so in the context of Rule 57.07(1) of the Rules of Civil Procedure rather than Rule 24(9) of the Family Law Rules. Nonetheless the two provisions are sufficiently similar that the case law from the former applies "by necessary implication" to the latter.

[11] The Ontario Court of Appeal offered the following directions in regard to the first part of the two-part test in Galganov:

a. The first step is to determine whether the conduct of the lawyer comes within the rule; that is, whether his or her conduct caused costs to be incurred unnecessarily. To do so, the court must consider the facts of the case and the particular conduct attributed to the lawyer.

b. The rule allowing costs against a lawyer is not intended as punishment for professional misconduct. Rather, it is as indemnity for the time wasted and expenses unnecessarily expended as a result of the conduct of a lawyer.

c. Neither negligence nor bad faith is a requirement for imposing costs against a lawyer.

d. Mere negligence or conduct that does not meet the level of negligence may be sufficient to attract costs against a lawyer.

e. The costs rule is intended to apply "…only when a lawyer pursues a goal which is clearly unattainable or is clearly derelict in his or her duties as an officer of the court …"

f. In determining whether the rule applies, the court must examine "the entire course of the litigation that went on before the application judge". This requires a "holistic examination of the lawyer's conduct" in order to provide an "accurate tempered assessment". But a general observation of the lawyer's conduct is not sufficient. Instead, the court must look to the specific incidents of conduct that are subject to complaint.

[12] To be clear, and contrary to the submission of Mr. Fogelman, misconduct is not a prerequisite for the application of sub-rule 24(9) if counsel has caused the other side to incur wasted or unnecessary costs. As Justice Rene M. Pomerance of the Superior Court of Justice ("SCJ") succinctly put it in D. (M.) v Windsor-Essex Children's Aid Society: "Compensation may be appropriate even if discipline is not."

[13] In R. (C.) v. Children's Aid Society of Hamilton, Justice George Czutrin of the SCJ stated that any person whose conduct "flies in the face" of the primary goals of the Family Law Rules may be subject to cost consequences. Those persons include the Office of the Children's Lawyer (the "OCL"), the branch of the Ontario Ministry of the Attorney General that is often appointed to represent children in custody and child protection proceedings.

[14] In Children's Aid Society of St. Thomas (City) & Elgin (County) v. S. (L.), Justice Eleanor M. Schnall of this court ordered costs against the OCL counsel. She did so because the children's counsel engaged in an "appalling" waste of court time. OCL counsel conducted "…ineffective, wasteful, time-consuming and unproductive" cross-examinations of all witnesses. Some unnecessary witnesses were called at her insistence. She failed to assist the court in determining the issues and fulfilling the primary objective.

[15] This position was upheld by Justice Robert Spence in Children's Aid Society of Toronto v. L. (L) (No. 2), and Justice John Harper of the Superior Court of Justice in Children's Aid Society of London and Middlesex v. C.D.B. and L.D.B.

[16] With regard to the second part of the test, the application of the "extreme caution" principle, the Supreme Court of Canada stated in Young v. Young that:

… courts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular causes. A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties of his or her calling.

[17] In Galganov, the Ontario Court of Appeal overturned a costs award against a lawyer. It found that potentially negligent conduct by a lawyer, which may have unduly prolonged litigation, would not necessarily demand that costs be awarded against the lawyer. That negligence must breach an objective standard and it must have resulted in a waste as described above. Even then, the court must consider the extreme caution principle.

[18] A further factor for the court to consider here is the fact that this is a child protection proceeding. While the Family Law Rules ("FLR") contains a presumption that a successful party is entitled to the costs of a successful step (subrule 24(1)), that presumption does not apply in child protection proceedings (subrule 24(2)).

[19] The rationale for the general aversion to awarding costs in a child protection matter was set out by the Ontario Divisional Court in Children's Aid Society of Ottawa Carlton v. S as follows:

3 The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a children's aid society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations. Parents, on the other hand, are generally insulated from claims for costs in such proceedings 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.

Has the Conduct of Mr. Glass Caused Costs to be Incurred Unnecessarily?

[20] In arguing that Mr. Glass meets the first part of the test laid out in Galganov, the father argues that Mr. Glass acted improperly in a number of ways, as set out below.

Bad Faith/Abuse of Process/Lack of Merit

[21] While acknowledging that he does not have to prove bad faith to obtain costs against the child's counsel, the father nonetheless argues that Mr. Glass acted in bad faith. He makes the broad and multifaceted argument that Mr. Glass decided

…to bring a child protection application, absent facts to support such an application and seeking a result that was intended to formalize the child's desire to breach the current court order, all in service of delaying another proceeding…

[22] Thus, he argues in effect that not only was the proceeding an abuse of process, but so too was the conduct of Mr. Glass. He argues that Mr. Glass acted for two improper motives: to formalize the child's desire to breach a court order that she see her father and to avoid the impending SCJ custody and access proceeding. He adds that Mr. Glass had no basis in law or fact for doing so.

[23] With regard to the first point, the father argues that Mr. Glass "inappropriately empowered" a 13-year-old girl, placing her in a position from which she should have been protected. He adds that Mr. Glass should have known better because of the strong expert evidence in the SCJ proceeding that the child was alienated by her mother against her father.

[24] The father is particularly concerned with several aspects of Mr. Glass' conduct of this proceeding. Mr. Glass knew from early on that the father was V.F.'s custodial parent and that he objected to the 13 year old's retainer of outside counsel.

[25] Despite his knowledge of this strong objection, Mr. Glass continued to meet the child, took her out of school and even brought her to court without advising the father, V.F.'s custodial parent, that he intended to do so. Mr. Glass later arranged to have the child seen by a social worker, Mr. Blugerman, again without the authorization of the custodial parent.

[26] The father argues that it was open to Mr. Glass to obtain a court order appointing him as counsel for the child in the SCJ proceeding under subrule 4(7), or in this proceeding under s. 38 of the Child and Family Services Act ("CFSA"). Yet, Mr. Glass made a strategic decision not to seek to be added as counsel in either proceeding.

[27] The father even argues that Mr. Glass misled a junior lawyer in Ms. McCarthy's firm to allow him to appear as her agent. The father claims that Mr. Glass did so in order to formalize his role as child's counsel in this proceeding.

[28] The father's second point is that this proceeding was initiated to assist the mother by derailing the SCJ proceedings she was in danger of losing. It was, in the father's submission, inappropriate for the child to use these proceedings to pursue a professed desire to be heard in the SCJ custody proceedings. He points to the internal contradiction of commencing a proceeding that places the child in the middle of her parental conflict for the avowed purpose of removing her from that conflict.

[29] The father continues by arguing that, even after commencing this proceeding on behalf of V.F., Mr. Glass should have known better than to continue it. That is because Justice Trimble of the SCJ made clear to all of the parties to this proceeding on November 22, 2015 that he views it as an abuse of process and that it is of "dubious merit". Further, he released his final decision on February 5, 2016, one week before this motion was heard.

[30] That trial decision confirmed almost all that the father was arguing. Trimble J. accepted the evidence and advice of custody and access assessor Howard Hurwitz. Trimble J. found that V.F. had been alienated by her mother. He granted custody of V.F. and her siblings to her father, temporarily suspended the mother's access and required all to participate in the Family Bridges Programme for alienated children.

[31] Trimble J. pointed out that his conclusions were consistent with those of the Halton Children's Aid Society ("Halton Children's Aid Society") as enunciated on the witness stand by the Halton Children's Aid Society supervisor assigned to this family. In fact, Trimble J. cited the supervisor's evidence that this child welfare proceeding put V.F. in the middle of her parent's litigation.

[32] In response, Mr. Glass argues that the fault for this proceeding should be laid solely at the feet of the mother. He relies on my finding that the child acted under the influence of her mother and brought this proceeding to assist her mother. Yet the father, who obtained an award of $625,337.40 in costs against the mother in the SCJ proceeding, did not seek any costs against the mother in this one.

[33] Mr. Glass argues that he had little to do with the mother other attending at court. He did not speak to her independently of the child and did not interview the child in the mother's presence.

[34] In his counsel's submission, Mr. Glass acknowledges that he shared concerns about V.F. being a "pawn" of her mother. He asserts that he "prudently addressed" those concerns by retaining social worker Michael Blugerman to assess V.F.'s ability to instruct counsel.

[35] Mr. Glass analogizes his position as akin to a lawyer faced with issues about the capacity of his client. He states that the proper course of action is to obtain independent evidence of capacity. By retaining Mr. Blugerman, the social worker who met with the child, he did exactly that here. He "followed the proper protocol in this matter."

[36] Mr. Glass also refers to the report of child psychologist Olga Henderson. Dr Henderson found that the child was "significantly affected by the parental conflict". That being the case, Mr. Glass argues that it was not an abuse of process for him to bring this protection proceeding on behalf of V.F.

Mr. Glass' Failure to Move in the SCJ under Subrule 4(7)

[37] In considering these arguments, I am struck by the fact that V.F.'s retainer of Mr. Glass should have raised warning flags from the very beginning. First, a 13- year-old girl makes her way from Oakville to Toronto to see a lawyer. There is no evidence that they had any past dealings. The child was driven to Mr. Glass' office by the very parent who is alleged to have alienated her and with whom the child was obviously aligned. That parent is the only one who paid any portion of Mr. Glass' fees.

[38] Mr. Glass wrote to counsel for the parents on October 14, 2015, advising them that he had been retained by V.F.:

… with respect to the litigation now going on between [V.F.]'s parents and the results that might follow from this litigation ...to make sure that you and any decision maker, such as a judge or arbitrator, know what her wishes and preferences are concerning the issues of custody and access.

Two days later, the father's counsel, Ms. McCarthy, wrote back to articulate his objection to Mr. Glass meeting or acting for his daughter. That response was crystal clear.

[39] Mr. Glass' response, written 11 days later, set out his view that he did not need the father's consent to meet with V.F. He stated his surprise that the father did not agree with his view of the importance of making V.F and her siblings' views and preferences "known to all parties and the Court [i.e. the SCJ]."

[40] Mr. Glass never offered any authority for the proposition that, absent a court order and against her custodial parent's wishes, he was entitled to represent V.S. in regard to the SCJ proceedings. But there is authority to the contrary. In Children's Aid Society of Durham v. S. (A.), Justice Margaret Ann C. Scott of the Superior Court of Justice cited with approval the statement of the father's counsel in that case "that there exists no statutory provision in either the Children's Law Reform Act or the Divorce Act for a child to retain counsel." Mr. Glass would have been aware of this authority as he acted for the mother in S. (A.).

[41] That absence of statutory authority does not mean that Mr. Glass had to turn V.F. away at his door when she was delivered by her mother. Rather, after being advised of the father's objections, he could have moved to be appointed as counsel for V.F. in her parents' custody/access proceedings. FLR subrule 4(7) reads as follows:

(7) In a case that involves a child who is not a party, the court may authorize a lawyer to represent the child, and then the child has the rights of a party, unless the court orders otherwise.

[42] An appointment under subrule 4(7) would have ratified Mr. Glass' authority to act for V.F. in the SCJ proceeding. In that event, she would have been able to directly provide her views and preferences to the court hearing the custody/access trial through Mr. Glass' representation. This is what Mr. Glass told VF's parents was the purpose of his retainer.

[43] There was ample precedent for Mr. Glass to seek an order to represent V.F. under subrule 4(7) in the SCJ proceeding. Such an order was made in Children's Aid Society of Durham v. S. (A.). There, Scott J. authorized the children's privately retained lawyer to represent them in a child protection proceeding. Scott J. did so against the wishes of the father, who argued that they were aligned with the mother.

[44] Something very similar occurred in K.S.W. v. S.W. There, Justice Frances P. Kiteley of the SCJ granted the mother's request for the appointment of private counsel for the children. Kiteley J. did so despite the fact that the children were closely aligned with that mother against the father.

[45] In Law v. Law, Justice D.J. Gordon of the SCJ was emphatic about the right of an 11-year-old boy to be heard in a custody proceeding that involved him. Gordon J. stated:

[ 51 ] The law is well settled. The child's legal rights are set out in statue and in the United Nations Convention on the Rights of the Child. Jordan has the right to be heard. (see Baker v. Canada Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817 (S.C.C.); B. (S.G.) v. L. (S.J.) (2010), 2010 ONCA 578, 102 O.R. (3 rd ) 796 (Ont. C.A.); and B.J.G. v. D.L.G., 2010 YKSC 44, [2010] Y.J. No. 119 (Y.T.S.C.) for a discussion of this issue).

[46] Despite the precedents, Mr. Glass did not apply to represent V.F. in her parents' pending case. Mr. Glass' failure to apply to represent V.F. puzzled both Trimble J. and me.

[47] Mr. Glass did participate in a limited way in the SCJ motions argued before Trimble J. on November 18 and 21, 2015. That is only because the father sought an injunction to bar Mr. Glass from acting for V.F. in this proceeding and to require him to disgorge his file. Mr. Glass made arguments in the SCJ motions. But those arguments were only in defence of the propriety of this proceeding and not in relation to the merits of or his participation in the SCJ proceeding.

[48] As a result, Trimble J. did not rule on whether Mr. Glass could act for V.F. in the proceeding before him. The issue was not raised. He did find that this proceeding is an abuse of process even though he refused to determine its fate. He left that issue to this court.

[49] To be clear, the reason that I raise the conduct of the SCJ proceeding is that it offers background and context to what happened in this closely related proceeding. It is not my role to punish or reward Mr. Glass for his behaviour in that proceeding.

[50] While the father argues that Mr. Glass "empowered" the child when she should have been protected from her parents' conflict, that empowerment in itself is not the problem here. There are many provisions that allow a thirteen year old child to participate in a child protection case that deals with her protection and best interests. They range from subrule 4(7) to:

a. Section 38 of the CFSA, which allows the court to appoint counsel for a child;

b. Section 39 (4) of the CFSA which allows a child 12 years of age and over to receive notice of a protection proceeding and even to be present for the hearing of that proceeding. However that term is subject to the court's overriding discretion to prevent the child from attending if it would cause harm to the child;

c. Section 64(4) of the CFSA, which explicitly allows a child 12 years of age or over to bring her own status review application. That application would commence only after the original protection application has resulted in a finding that the child is need of protection and a remedy has been imposed. There is no similar provision with regard to an originating protection application;

d. Section 39 (6) of the CFSA grants a child who brings a status review application under s. 64(4), as well as a child who receives notice of a child protection proceeding or has legal representation in such a proceeding the right to "participate in the proceeding and to appeal …as if he or she were a party."

[51] I have also raised two cases above in which allegedly alienated children were allowed to have counsel appointed to represent them in a case that concerned them. But the key point here is that the court monitored the case and determined whether and at what level that representation should occur. In the third case I cited above, Law v. Law, Gordon J. lamented the fact that counsel had not been appointed to represent the views and preferences of the 11-year-old child.

[52] In Children's Aid Society of Durham v. S.(A.), Scott J. found that the combined operation of CFSA sections 38 and 39 vests in the child protection court:

… an obligation to monitor, during the children's exercise of their rights, that their best interests as defined in the statute are being protected.

[53] Justice Scott described the children before her as not being ordinary parties. She said this even though they were represented by counsel, who sought to bring a protection application on behalf of the children. She stated:

67 Consequently, I remain of the view that the subject children in the case at bar, even if counsel are appointed for them, and even if they fulfill the defined categories in subsection 39(6), as CRS does, are not parties to the proceeding as adults are. The court, whether these children are represented by counsel or not, is not only entitled but obligated to monitor and define the level of the children's participation -- determining the rights and responsibilities of each such child to ensure that the paramount purposes of section 1 of the Act is maintained. [emphasis added]

[54] This court was not placed in a position to perform its monitoring role over V.F.'s best interests in her attempt to exercise of her rights in this case. It was not asked to approve of any aspect of Mr. Glass' retainer or representation of V.F. As set out below, this omission must have been intentional.

Collateral Purpose of this Proceeding

[55] V.F. commenced this proceeding only after her father's counsel clearly enunciated his opposition to Mr. Glass' retainer. The bringing of this proceeding represented a shift in goals and tactics from the ostensible rationale for Mr. Glass' retainer by V.F. Recall that Mr. Glass told the parents, in so many words, that he was retained to allow V.F.'s voice to be heard in the SCJ proceeding.

[56] This expressed reason for Mr. Glass' retainer only changed after he issued the application in this proceeding. He immediately advised the parents of his view that this proceeding is intended to stay the SCJ proceeding. As Trimble J. wrote in his November 22, 2015 decision regarding the cross motions before him, described above:

Mr. Glass, in his email of November 13 to the Mother and to the Father's counsel, states clearly and unequivocally that the purpose of the OCJ protection proceeding was to stay the SCJ. He says " the [SCJ] proceeding, insofar as it deals with the issue of custody of and of and (sic) access to any of the children in this matter, must be stayed pursuant to section 57.2 of the Child and Family Services Act ", and " I am hopeful that there will be an agreement not to proceed with the trial on the issues of custody and access until the child protection matter is concluded .", and " Clearly A and her siblings have a great interest in the [SCJ trial and will be very much affected by any orders that are made with respect to custody and access. As such I believe that if you choose to proceed, the children should be represented by counsel ." Having made this position clear, he brings no request to represent the children in the SCJ proceedings.

[57] The decision to bring and then continue with this proceeding rather than attempt to participate in the SCJ proceeding was a tactical decision. I described it as "forum shopping" in my decision on the merits. While ostensibly brought to ensure that the child could have her voice heard and be protected from the conflict between her parents, this proceeding was brought instead to prevent the imminent SCJ trial from being heard. That trial was set to resolve years of conflict between the parents.

[58] Once a stay of that SCJ proceeding was denied and the trial was completed, this proceeding was continued in an attempt to relitigate the issues just determined by Trimble J.

[59] There is no direct evidence of V.F. before this court. She did not swear an affidavit or appear before me. Her indirect evidence comes to the court only through the experts who interviewed her as a part of their assessments and Mr. Blugerman. Further, a solicitor-and-client relationship exists between V.F. and Mr. Glass. So we have no direct evidence of how the decision was made to initiate this child protection proceeding.

[60] But it is difficult to believe, absent evidence to the contrary, that 13 year old V.F. dreamed up the tactic of bringing this application in order to stay her parents' custody trial. She retained Mr. Glass in order to have her voice heard in the custody and access matter. She would not have known that CFSA s.57.2 called for a stay of Children's Law Reform Act custody and access proceedings once a child protection proceeding had been commenced.

[61] V.F. would not have been aware of Justice Scott's finding at par. 59 of Children's Aid Society of Durham v. S.(A.) that:

In my view, children cannot have counsel until the court fulfills its duty in applying the criteria in this section to determine, on balance, as set out in subsection 38(4), if it will both protect the children's interests and advance the matter, if counsel is appointed to represent them.

[62] Nor would V.F. have been aware of the rationale offered by Mr. Glass for distinguishing Scott J.'s finding. He argued that s. 39 (1) of the CFSA makes the applicant in any child protection proceeding a party. Thus he argued that V.F., as the applicant in her own child welfare proceeding, did not need to have her counsel appointed or approved by the court.

[63] In other words, Mr. Glass, who understands the law in a manner that a 13 year old cannot hope to do, must have made the tactical decision to commence this proceeding. Perhaps he was seeking to advance the law. But in doing so, he bypassed the court's role as overseer of each child's legal participation in child protection court proceedings. That fact is vitally important since V.F. applied to be protected from her parents' conflict by injecting herself squarely into the middle of it.

[64] In D.(M.) v. Windsor-Essex Children's Aid Society, Pomerance J. accepted in principle one of the arguments raised on behalf of Mr. Glass – that the losing lawyer should not be liable for the lack of success of the proceeding. That principle even applies in the event of a frivolous proceeding. I concur. Otherwise, the losing lawyer would be liable for costs in every argued case.

[65] However, Justice Pomerance found that the principle does not apply when the frivolous proceeding is brought for an improper collateral purpose and the second proceeding disrupts the earlier one. In that event, Pomerance J. was willing to consider the imposition of costs against counsel who brought the improper proceeding.

Involvement of Michael Blugerman

[66] Mr. Glass admits, in Mr. Fogelman's written submissions, that he was aware of the concern "that his client may have been acting as a pawn for her mother." Mr. Fogelman further concedes that "…given the history of the case at the SCJ, [Mr. Glass] had reason to approach his client's instructions with caution." In light of these concessions, Mr. Fogelman argues that Mr. Glass acted prudently by retaining social worker Michael Blugerman "… specifically with regard to the instructions he was getting from his client." He claims that Mr. Glass was "following the proper protocol" by retaining Mr. Blugerman to determine the independence of his client's instructions.

[67] The fly in the ointment of that argument is the timing of Mr. Glass' retainer of Mr. Blugerman. Mr. Glass admits in Mr. Fogelman's written submissions that "…the proper course of action [in this case] is to obtain independent evidence of capacity before proceeding" [emphasis added]. While he claims that this is what happened here, I disagree.

[68] The father's lawyer first raised his concerns about Mr. Glass' representation of his daughter on October 16, 2015. Mr. Blugerman was not asked to assist in this case until December 23, 2016, 70 days after Ms. McCarthy broached the issue. By that time, this motion had already been scheduled and the father's summary judgment motion materials had been served on Mr. Glass. By that time, the SCJ trial had ended, although judgment was reserved.

[69] Mr. Blugerman interviewed V.F. twice during her winter school break; on December 28, 2015 and January 3, 2016. He produced his report on January 7, 2016, just over a month before this motion was argued.

[70] Before he received Mr. Blugerman's report, Mr. Glass took a number of steps in this proceeding that assumed his client's capacity to independently instruct counsel and the propriety of his representation of the child. He:

a. initiated this proceeding on behalf of V.F. about six weeks before he retained Mr. Blugerman;

b. issued the application knowing that the Halton Children's Aid Society ("HCAS") did not believe that V.F. and her siblings were in need of protection. The HCAS had reconsidered and reaffirmed its position after Mr. Glass was retained. It supported the dismissal of V.F.'s application;

c. did so without seeking leave of the court to represent V.F. pursuant to either CFSA s. 38;

d. removed V.F. from school and brought her to court in this proceeding on December 10, 2015. That was right in the middle of the SCJ trial. He did so without the knowledge of the father, her custodial parent. As I found, the mother must have condoned, if not made, the arrangements. The HCAS worker present at court was concerned that V.F. was brought to court without either parent being present;

e. arranged for V.F. to be interviewed and assessed by Mr. Blugerman without any authorization from either the father or the court. He could not have done so without the cooperation of the mother.

[71] In fact, on December 4, 2016 Trimble J. ordered that the mother was "restrained from taking the child to any appointments with new third party professionals without the Applicant's written consent." She was also restrained from providing the children's schools with consent for the children to be absent from school without the father's written consent. These terms appear to have been aimed, at least in part, at Mr. Glass' involvement.

[72] It just so happens that Mr. Glass, not the mother, took V.F. to see Mr. Blugerman. Both interviews took place during the winter school break. All involved with this case knew that the father was vehemently opposed to Mr. Glass' involvement with V.F.; yet the Blugerman interviews took place behind his back. So while the letter of the Trimble J. order was not violated, its spirit was flouted by the Blugerman interviews. Something just like the Blugerman interviews was exactly what Trimble J. appears to have been trying to avoid.

[73] However, and to be fair to Mr. Glass, I have no evidence that he was aware of the December 4, 2015 order of Trimble J. Nonetheless, intentionally or not, the Blugerman interviews once again drew V.F. further into her parents' conflict. This was contrary to the wishes of the judge presiding at the SCJ custody/access trial.

[74] Other aspects of Mr. Blugerman's involvement in this proceeding were simply wasteful. Although ostensibly presented as an expert, Mr. Blugerman was not tendered to the court as an expert in anything. He was very candid with the court in admitting that he lacked the expertise to assess the child for capacity, the expressed reason for his assessment. Mr. Blugerman did not sign a form 20.1 acknowledgment of expert's duty. In fact Mr. Blugerman's report was originally attached to Mr. Glass' own affidavit in this proceeding. Mr. Blugerman then had to swear another affidavit after I raised the issue of Mr. Glass arguing this motion on his own affidavit.

[75] At a conference call between counsel on February 28, 2016, I ordered on consent that Mr. Blugerman be produced for questioning by Ms. McCarthy if Mr. Glass was relying on the report. If he was not available before the motion, he was to be produced during the hearing of the motion. A date was set between counsel for the questioning. Inexplicably, though, Mr. Glass did not produce him and cancelled the questioning. Ms. McCarthy obtained a certificate of his non-attendance. If there were an explanation for Mr. Blugerman's non-attendance at his questioning, it was not provided to me.

[76] Further Ms. McCarthy requested Mr. Blugerman's notes in advance of the hearing of the motion. They were not produced until he attended at the motion. No explanation was provided. Mr. Blugerman was to attend at court at 10:00 a.m. on the day the motion was to be heard, to be cross-examined. However he did not attend until about noon. It turns out that he had a medical appointment that morning, but Mr. Glass never advised counsel of the conflict. More time was taken for Ms. McCarthy to review Mr. Blugerman's notes at court. At least a half day was wasted.

[77] At the end of the day, Mr. Blugerman was only a fact witness who offered the same evidence of the child's views and preferences the court had already received from other sources. I found that his evidence did not assist the court at all.

[78] Mr. Blugerman's affidavit was the only evidence presented at this motion that had not been provided to Trimble J. It raised no new or triable issues. In fact, during his cross examination, Mr. Blugerman actually confirmed that he agrees with almost all of the expert evidence relied upon by Trimble J.

[79] Considering all of the above, it is hard to see how Mr. Blugerman's late retainer represented prudence on Mr. Glass' part.

Responsibility of the Mother for Costs Claimed Against Mr. Glass

[80] The father seeks costs only against Mr. Glass. For obvious reasons, he makes no claim against the unsuccessful party in this proceeding, his now 14-year-old child, V.F. He also does not seek costs against the mother, even though Trimble J. assessed $625,337.40 in costs against her in the SCJ proceedings.

[81] Mr. Glass argues that any costs liability for this proceeding should lie solely at the feet of the mother who has not participated in this costs step. Mr. Glass has not asked that she be required to indemnify him for any costs that he is ordered to pay. He does point to the fact that Trimble J. found, in his SCJ costs endorsement, that the mother bears at least some if not complete responsibility for the retainer of Mr. Glass and the commencement of this proceeding. Trimble J. describes the mother as using V.S. as her "proxy" in this proceeding. He even speculates on the mother putting the idea of this proceeding into the child's mind.

[82] Undoubtedly there is truth to Trimble J.'s comments. However, he did not attempt to apportion liability as between the mother and Mr. Glass.

[83] Certainly the mother sought to assist her position by bringing V.F. to Mr. Glass. V.F. was obviously aligned with her mother. Whatever the source of his instructions or strategic decisions, they were clearly aligned with the mother against the father.

[84] Those facts could not have escaped Mr. Glass. They should have increased his caution in his representation of V.F. Even if he did not detect the hidden hand of the mother (though he admits that he at least suspected it), he was obliged to exercise his independent judgment or seek direction from the court.

[85] In M.D. v. Windsor-Essex Children's Aid Society, Pomerance J. was faced with an argument that liability for a wasteful proceeding lay at the feet of a client, not the lawyer. She rejected the argument, pointing to the lawyer's independent professional responsibilities and her gatekeeper role. She wrote:

86 Even if M.D. did instruct Ms. Avery to advance the litigation in the manner that she did, Ms. Avery was required to exercise independent legal and moral judgment. Lawyers should not be afraid to take on difficult cases because of the risks to them personally and should not be cast as arbiters of merit. (See Byers (Litigation Guardian of) v. Pentex Print Masters Industries Inc., 59 O.R. (3d) 409 (S.C.J.)) On the other hand, lawyers must act responsibly in choosing how the client's cause will be advanced. The lawyer is the champion of the client, but must also act as gatekeeper. If a client instructs a lawyer to act in an unethical or dishonest fashion, it is incumbent upon counsel not to comply with those instructions. Similarly, jurisdictional decisions involving the type of proceedings that are commenced - e.g. the choice between an appeal and an extraordinary remedy - are uniquely within the purview of the lawyer's decision making authority. The lawyer may consult with his or her client on such issues, but it is for counsel to determine when and how the court has jurisdiction over the dispute. The duty of loyalty to the client must accommodate a respect for the law and the process by which the law is determined. As it was put in Boxer v. Reesor (1983), 43 B.C.L.R. 352 (S.C.)), in connection with civil litigation:

If the client were instructing the lawyer to take a position that contravened the lawyer's obligations in the preparation of the client's list of documents, the lawyer should resign, not proceed to expose the client to costs by frustrating the litigation process. [emphasis added]

[86] In that case, Pomerance J. did not question the good faith of the lawyer in attempting to advance the client's position. She did take her to task for failing to exercise her independent judgment and to honour her duties to the court and the other litigants in the proceeding.

[87] That argument gains even greater immediacy when the client is a child enmeshed in a very high conflict proceeding and there are concerns that the source of the retainer and instructions is an alienating parent.

Other Arguments Raised by the Father

[88] The father raised two other arguments that I see as secondary to his main arguments. I do not accept either argument.

[89] The father says that Mr. Glass would know that his client, a child, would not be able to answer for any costs award that may be made against her in this matter. This should have made him more careful in his conduct of the proceedings.

[90] I do not agree. Counsel, particularly in child welfare proceedings, often represent clients with little or no ability to pay costs of an unsuccessful step or proceeding. That should not affect their whole hearted and responsible advocacy of their client any more than a client's wealth should affect counsel's willingness to bring frivolous proceedings. If that were not the case, lawyers advocating for clients of modest means would always have to look over their shoulders. A large door of access to justice would swing shut.

[91] The father also claims that Mr. Glass misled a junior lawyer in Ms. McCarthy's office. He alleged that Mr. Glass attempted to pull a "fast one" on Ms. McCarthy and the court. He convinced the junior lawyer to allow him to attend at court as her agent in an adjournment request. He is alleged to have done so by misrepresenting his position; stating that he accepts that this proceeding does not stay the SCJ proceeding. This was described as part of a plan to legitimize his position as V.F.'s counsel in this proceeding.

[92] I have listened to the recording and reviewed the endorsement of Justice Sheilagh O'Connell for that attendance. I see nothing that shows that Mr. Glass gained any legal or strategic advantage in the proceeding by attending to speak to the adjournment. I will give him the benefit of the doubt and accept his word that he never intentionally misstated his position to that junior counsel. While his statement may have been confusing and perhaps even misleading to that counsel, it was not intentionally so. In any event, the father was not prejudiced by Mr. Glass' misstatement.

What Mr. Glass Should Have Done

[93] Before concluding on the first part of the test for costs against counsel, I wish to set out what Mr. Glass could and should have done in these circumstances.

[94] After V.F. was brought by her mother to see him, Mr. Glass properly wrote to the parents through their counsel, to advise them of his retainer. However, after Ms. McCarthy wrote to him to unequivocally object to his representation of V.F., Mr. Glass should have moved immediately under subrule 4(7). He would have asked to be appointed to allow the child's voice to be heard in the impending SCJ custody and access trial. As I have stated above, there is ample precedent for that order, even in the face of the opposition of a parent.

[95] That being said, and as stated above, I will not impose costs against Mr. Glass for what he did or did not do in that SCJ litigation. That is not my role. But I point out that all of this unnecessary litigation may well have been avoided had Mr. Glass taken that step.

[96] Mr. Glass chose instead to commence this improper proceeding. As Pomerance J. pointed out in M.D. v. Windsor-Essex Children's Aid Society, counsel have a gatekeeping role. They do not have to accept instructions to bring a proceeding that is abusive. Mr. Glass should have refused the instruction to commence this proceeding. I say this for two reasons: first, because he was asked to commence an improper collateral proceeding and, second, because there was good reason to question the independence of the child's instructions. He cannot even claim that he checked with Mr. Blugerman before he issued the application. He waited until the father's motion was served on him before he did that.

[97] Even if I grant Mr. Glass the benefit of the doubt that he was not fully aware of the problems set out above, he should have applied to be appointed as counsel for V.F. under CFSA s.38. This is what occurred in Children's Aid Society of Durham (County) v. S. (A.). This step would have allowed the court to confirm or deny the propriety of his representation of the child. It would have allowed the court to oversee the scope of the child's representation from the very beginning of this case. But he failed to do that as well.

[98] After Trimble J. found on November 22, 2015 that this proceeding is an abuse of process and of dubious merit, Mr. Glass could not deny awareness of the problems with this proceeding. While the court is not entitled to know about his discussions with his client following that ruling, if he were instructed to continue this proceeding, he could have done one or more of the following:

a. moved to be removed from the record because of his unwillingness to participate in an abusive process. He could have done so without breaching solicitor-and-client privilege. As Pomerance J. pointed out in In M.D. v. Windsor-Essex Children's Aid Society, citing the decision of the Supreme Court of Canada in R. v. Cunningham:

… where counsel seeks leave to withdraw from a case due for ethical reasons, the court must accept this assertion at face value and shall not inquire further for fear that solicitor-client privilege will be invaded. The same reasoning must logically apply to an inquiry made under Rule 24(8) of the Family Law Rules. In assessing the case before me, I must be careful not to pierce the privilege attaching to communications between Ms. Avery and her client.

b. in the alternative, moved to have himself appointed as V.F.'s counsel so that the court could oversee his involvement as V.F.'s counsel;

c. if he were seeking to resolve the issue of V.F.'s capacity to instruct him, applied for an order that V.F.'s capacity to instruct him be assessed by an independent expert;

d. moved for instructions from the court.

[99] The final opportunity for Mr. Glass to change the arc of his involvement in this case came a week before the motion to dismiss was heard. That is when Trimble J's scathing trial decision was issued. That decision made clear the extent to which the child had been alienated from her father by her mother and the extent to which she had been harmed by their conflict. Mr. Glass could again have taken any of the steps set out above. In particular, he could have sought to be removed from the record or sought directions. Instead he continued to defend this proceeding. By that time, the only purpose for this proceeding was to seek a different result on the same facts.

[100] In choosing to proceed to defend the father's motion, Mr. Glass should have produced Mr. Blugerman for questioning as I ordered and as he arranged with Ms. McCarthy. He should have further arranged to get Mr. Blugerman's notes to Ms. McCarthy before the date of the motion. He should also have advised her that Mr. Blugerman was going to be late for court because of an apparently prior engagement. His failure to do any of these remains unsatisfactorily unexplained.

Conclusion: Costs Were Incurred Unnecessarily

[101] In conclusion, for the reasons set out above, I find that Mr. Glass's conduct comes within the scope of subrule 24(9). I find that he has "run up costs without reasonable cause or has wasted costs."

Application of the "Extreme Caution" Test

[102] The second part of the test for the imposition of costs against counsel is the "extreme caution" test, described above. It was first applied by the Supreme Court of Canada in Young v. Young, and has been followed in a number of subsequent cases. It requires the court to take a broad-ranging approach to the conduct of the lawyer than the first-stage detailed analysis of the particular conduct of the lawyer.

[103] This stage of the analysis highlights the importance of the role of the lawyer in our system of justice. Lawyers must be able to resolutely put forward their client's case. They should not have to look over their shoulders towards their wallets and pocketbooks when advocating difficult or unpopular cases. If they were forced to do so, cases of merit would not be advanced; solicitor-and-client privilege, one of the bulwarks of our system of justice, would be endangered. Our system of law would wither on the vine.

[104] The concerns addressed by the application of extreme caution to the determination of costs apply with great particularity to child welfare proceedings. As Mr. Fogelman wrote in his submission on behalf of Mr. Glass:

The policy reasons why costs against counsel personally are an exceptional remedy are not difficult to discern. Counsel may be retained to take unsavoury positions, act for less than exemplary individuals or argue "the wrong side" of the case. If in any or all of these circumstances counsel was personally liable for costs it would be contrary to the interests of the public and the equitable administration of justice. This is highlighted in child welfare proceedings where counsel for the child are often required to take severe positions including removing children from their biological parents. Counsel must be able to advance positions on behalf of their client. [emphasis added]

[105] It is also well to recall that, as set out above, the ordinary presumptions regarding costs do not apply in child protection proceedings. Nonetheless, as Schnall J. pointed out in Children's Aid Society of St. Thomas (City) & Elgin (County) v. S. (L.), counsel for children in child protection matters are subject to the same obligations as all other counsel.

[106] While recognizing that the application of discretion in the second stage of the test for costs against a lawyer is case specific, Pomerance J. offered the six following questions for an analysis of the issue in D.(M.) v Windsor-Essex Children's Aid Society:

1. To what extent did the lawyer's conduct involve an element of fault: is the issue one of inadvertence, simple negligence, extreme negligence or bad faith?

2. Did the conduct affect the integrity of the administration of justice?

3. Was it reasonable for the lawyer to believe that the conduct was properly undertaken in the vigorous defence of a client?

4. Was the conduct within the realm of what should be tolerated in litigation, including high conflict litigation involving child protection?

5. Would a costs award have the effective of chilling resolute advocacy?

6. Given the interests at stake, the role of the lawyer and the importance of solicitor client privilege, has the case for costs been made out?

[107] These six questions do not comprise a rigid test. Rather, they represent a list of relevant considerations in the exercise of discretion regarding a claim for costs against counsel. Here, some of the questions have been considered at the first stage of the analysis. Nonetheless, they remain relevant at this stage as well.

[108] Mr. Glass admits that he at least suspected that his client was, in the words of his counsel, the "pawn" of the mother. He had reason. There was strong evidence that his client was alienated from her custodial parent. He had to know that the steps that he was taking were intended to assist the mother in the SCJ proceedings. When he commenced this proceeding on V.F.'s behalf, he could not ignore the concern that it was commenced for a collateral purpose.

[109] He was not as prudent as he claimed to be. He did not, as he claimed, follow the proper protocol in this matter. He was aware that his retainer raised a number of issues. As set out above, his awareness should have increased over time, as the SCJ proceeding advanced.

[110] It is well to recall that counsel has a duty to the court and the parties not to raise manifestly unmeritorious proceedings. Utilizing extreme caution to offer Mr. Glass the benefit of the doubt, I am willing to presume that he did not fully comprehend the abusive nature of this proceeding when he commenced it on November 9, 2015. I say this even though Mr. Glass attempted to use its existence to convince the parties to stay the SCJ proceeding four days after he commenced it.

[111] Even applying the benefit of the doubt accruing from the application of extreme caution, Mr. Glass cannot claim to have been unaware of the nature of this proceeding after Trimble J. found that it is an abuse of process and of "dubious merit". Even more so after he released his trial decision. Recall as well that the HCAS also advised Mr. Glass that it felt that this proceeding had no merit.

[112] High conflict child custody litigation can be extraordinarily harmful to the parties and even more so to their children. When a child like V.F. is dragged smack dab into the middle of her parents' ugly war and is actually called upon take up a parent's cudgel and banner in that war, she needs an adult shield to protect her from serious harm. That is why the legislature and the courts have devised rules to protect children in custodial litigation and to monitor their participation in their parents' conflict.

[113] Mr. Glass undoubtedly came into this proceeding intending to represent V.F.'s best interests. He was aware that she had been harmed by her parents' conflict. But at some point he was turned in the wrong direction. He then chose to ignore all of the cautionary warning signs. Rather than protect the child, this proceeding just exacerbated the conflict between the parents. It created a new and improper zone of conflict. V.F. was placed in a position where she was directly fighting for her mother against her father.

[114] Mr. Glass did not protect V.F. in this proceeding. He also did not allow the court to oversee his role as counsel for the child. His counsel said that he had concerns that the mother was using his client as a pawn. That is exactly the role that he allowed the child to play. V.F., the parties and the court were entitled to better.

[115] When I ask myself whether a costs award will chill resolute advocacy, I am called upon to look beyond the facts of this individual case. I am required to think of all cases where counsel are called upon to take up unpopular positions, or positions that buck great odds, in order to find justice. I am called to consider the central place of solicitor-client privilege in our system of justice.

[116] The legal profession is a bulwark of democracy. One need only flip through the pages of today's newspapers to see the results of systems of law that require lawyers to fear for themselves when they attempt to resolutely represent a client or cause.

[117] That is why the test is not described as one of restraint or simple caution. Instead it is one of extreme caution. Courts must be exceptionally vigilant in scrutinizing any claim for costs against counsel lest a pall be cast over the entire profession. The pursuit of justice must not be allowed to become a pantomime played out by the faint of heart.

[118] The rule of extreme caution is not meant to represent a "get out of jail free" pass for counsel, however they behave. In Covringa v. Covringa, Justice Carolyn J. Horkins of the SCJ was asked not to award costs against counsel who had engaged in egregious behavior before her, lest it have a chilling effect on other counsel. Such an order, it was argued, "would send a message to the legal profession that those who are most in need of representation are the ones who, would be in the middle of the lawyers pocketbook and the administration of justice."

[119] Horkins J. rejected that characterization. Not granting an order of costs against counsel in the appropriate circumstances "would send a very different message to the profession: that they can engage in unacceptable behavior without the risk of being penalized with a costs order."

[120] In Children's Aid Society of St. Thomas (City) & Elgin (County) v. S. (L.), Schnall J. stated, in ordering costs against the OCL, that she was not sending a chilling message to discourage that office from its duties. Rather, she was offering an "instructive" one. That message was that even an institutional participant in the justice system, like the OCL, "is subject to the same rules of competency, knowledge of the law and of the rules of evidence as all other lawyers and has the same obligations under subrule 2(2) [i.e. to meet the court's primary goal of dealing with cases justly]." The same principle applies here.

[121] Finally I am called upon to consider, in all of the circumstances of the case and considering the interests at stake to the parties, counsel and the law in general, whether the case for costs has been made out. I find that it has, at least in part.

[122] The existence of this abusive proceeding, brought for a collateral purpose and devoid of merit, obstructed and delayed the final resolution of this family's litigation. Even after Trimble J. released his very lengthy and comprehensive decision, the existence of this case mitigated its effect. It remained at risk of being superseded, not because of an appealable error, but because of this collateral proceeding.

[123] There was a better way to have proceeded in this matter. That way involved caution for the child involved, respect for due process and cooperation with the court's vitally important oversight role. That discretion was missing here.

Quantum of Costs

[124] There is a not a great deal of case law on the actual calculation of costs when it is ordered against counsel, particularly in a child welfare matter. The general principles articulated by the Ontario Court of Appeal in Boucher v. Public Accountant Council for the Province of Ontario apply generally to the exercise of determining costs. That is:

a. the fixing of costs is not simply a mechanical exercise;

b. the fixing of costs does not begin and end with a calculation of hours times rates;

c. the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding rather than an amount fixed by the actual costs incurred by the successful litigant.

[125] The principles in Boucher have been applied in a child welfare context.

[126] In Young v. Young, the Supreme Court of Canada called upon courts to be "extremely cautious in awarding costs personally against a lawyer." In considering that broad injunction, I find that extreme caution must apply to all aspects of the determination of costs against a lawyer, including the determination of the quantum of costs. That is because, in addition to the reasons that generally explain the extreme caution test:

a. Counsel may not be solely liable for the waste of time that raises a claim for costs. Their clients may bear some or most of the responsibility for the waste of time;

b. Because courts are generally unaware of the communications between solicitor and client, and the extent to which counsel attempted to convince the client to act in a more reasonable fashion, it is difficult to apportion liability for costs between counsel and client;

c. The quantum as well as the notion of granting of costs against counsel may chill future advocates from taking on difficult cases;

d. Courts should be particularly reluctant to chill the exercise of appropriate advocacy in child protection cases. The stakes could not be greater in those cases: the state's intervention and the potential loss of a child. Parents need access to capable counsel, ones undaunted by pocketbook concerns. Without such counsel, they will be unable to properly assert their parental rights against institutional litigants buttressed by the resources of the state. Yet there is a paucity of counsel with the expertise to effectively respond for parents in child protection matters.

e. The points set out above apply equally to the potential chill on advocates seeking to represent children in potentially difficult child protection contentious cases.

[127] In light of the factors set out above, I note that in M.D. v. Windsor-Essex Children's Aid Society, Pomerance J. granted quite moderate costs to three parties, on a partial indemnity basis, totaling $7,000.00.

[128] I have considered all of the factors set out above, as well as the following factors that mitigate against an award that approaches full indemnity costs against Mr. Glass:

a. While he should have recognized the troubling nature of this case, I have given Mr. Glass some benefit of the doubt arising out of extreme caution regarding the earlier stages of this proceeding;

b. I do not find that Mr. Glass intended to act in bad faith. Rightly or wrongly, he actually believed that he was advancing some aspect of V.F.'s rights;

c. Mr. Glass is correct that the mother bears a great deal of the responsibility for this wasted litigation, even though the father did not seek costs against her;

d. Ordinarily the losing party would bear some responsibility for the costs of this proceeding, That presumption does not apply here, where the party was 13 years old at the time that this case began;

e. In Covringa, Horkins J. assessed approximately 38% of the full indemnity costs that the losing party was ordered to pay to her counsel. That counsel's conduct in the case was far more egregious than that of Mr. Glass in this proceeding;

f. This case is a somewhat novel one; albeit not so novel that I can overlook the waste and impropriety that it represented;

g. Mr. Glass was never paid for his work in this matter. He returned the retainer provided by the mother and was never paid by the father;

h. Mr. Glass paid Mr. Blugerman approximately $4,000.00, presumably out of his pocket, for his services;

i. While Ms. McCarthy's bill of costs totalled almost $40,000.00, I am not bound by the details of any bill of costs.

j. Finally, for reason set out above, I do not wish to discourage members of an already select group of counsel who act in child welfare proceedings or who seek to represent children in appropriate circumstances, from doing so.

[129] Considering all of the above, I find that an award of $5,000.00 is fair and just in the particular circumstances of this case. It is far lower than I would likely have ordered in other circumstances, even in a child protection proceeding. The figure represents a balancing of factors: the court's demonstration of its disapprobation of the conduct of this proceeding, balanced against recognition of the application of the extreme caution principle.

Released: November 28, 2016

Signed: Justice Marvin Kurz