ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-12-1686
DATE: 05112013

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF D.T. (d.o.b. […], 2008) and J.Y. (d.o.b. […], 1998)

Cheryl Hess, Children’s Lawyer

BETWEEN:

I.T.

Applicant (Mother)

R.T.

Applicant (Father)

– and –

THE CHILDREN’S AID SOCIETY OF OTTAWA

Respondent

ATTORNEY GENERAL FOR ONTARIO

Respondent

Robie S. Loomer, for the Applicants
Self-Represented
Margueritte Lewis, for the Children’s Aid Society of Ottawa
Tom Schreiter, for the Attorney General for Ontario

HEARD: October 21, 2013

motion for state-funded counsel

lalonde j.

Overview

[1] The Applicant, R.N.T., seeks an order from this court compelling the Attorney General to provide him with state-funded counsel for the trial determining custody of his child.

Facts

[2] I accept the facts as stated in the factums of the Children’s Aid Society of Ottawa (CAS) and the Attorney General for Ontario. Both the CAS and the Attorney General have maintained a strict objectivity in their submissions at this hearing, as they are public bodies and nothing less was expected of them.

[3] The children are 5-year-old D.T. (d.o.b. […], 2008) and 15-year-old J.Y. (d.o.b. […], 1998.) I.T. is the mother of both children. The Applicant is D.T.’s father. J.Y.’s father is V.Y., who resides in Russia.

[4] The Application before the court is an Amended Amended Protection Application, requesting custody of D.T. and J.Y. to I.T., with no access to the father.

[5] This is not a criminal proceeding, so the Applicant’s liberty is not at stake.

[6] At the outset of this proceeding in July 2012, the Applicant obtained counsel, Joan Rothwell, through Legal Aid Ontario (LAO).

[7] On November 12, 2012, the Applicant served a notice of change of representation stating that he was going to represent himself.

[8] Both children were apprehended on July 12, 2012. J.Y. was returned to the care of the mother shortly after, but D.T. remained in foster care. At the time of the apprehension, each parent believed that D.T. was in need of protection because of the other parent’s behaviour.

[9] D.T. has been residing with his mother under an Interim Supervision Order since he was placed there on an extended visit on March 26, 2013.

[10] The Applicant has served and filed many documents related to this case, including a motion for leave to appeal, accompanied by five thick volumes of supporting documents.

[11] The Applicant has been involved in litigation for several years.

[12] The Applicant was declared a vexatious litigant by Justice Sheffield in 2008.

[13] According to the Applicant, he is currently a resident of Quebec.

[14] The Applicant was initially granted a legal aid certificate, but the certificate was promptly terminated when LAO determined that the Applicant had concealed real property, failed to sign a lien as required, and, thereafter, transferred the property to his spouse. There is no appeal from such a determination by LAO.

[15] The Applicant did own property when he applied for legal aid and, evidently, did not disclose this. A title search confirms that R.T. and I.T. jointly purchased a property for $310,000.00 on January 12, 2007 and that it was transferred to the sole ownership of I.T. for $2.00 on February 1, 2010.

[16] The Applicant’s affidavit indicates that I.T. was able to secure a mortgage on the property in the amount of $300,000.00, and that this property is the matrimonial home.

Issue

[17] Is the Applicant entitled to a state-funded counsel?

Law

[18] In New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, (New Brunswick (Ministry of Health)), the Supreme Court of Canada held that a court may, in limited circumstances, make an order that effectively requires the appointment of counsel at public expense to represent a parent who is responding to a child protection matter. Based on that decision, the key elements of the test have been summarized as follows:

(a) The court might make an order that would infringe the claimant’s right to security of the person under section 7 of the Canadian Charter of Rights and Freedoms;

(b) Representation by counsel is necessary for the claimant to have a fair hearing;

(d) The claimant does not have the means to employ counsel.

Attorney General’s Position

[19] The Attorney General opposes the appointment of state-funded counsel. Considering the complexity of the hearing and the abilities of the Applicant, counsel is not necessary for the Applicant to obtain a fair hearing. Legal aid was only refused to the Applicant because of his own actions, and there is evidence that the Applicant has the means to employ counsel.

[20] The Applicant’s affidavit fails to particularize why he lacks the capacity to respond to the factual and legal issues that will be in dispute at the trial. Instead, the Applicant asserts that judicial officials have ignored his evidence, engaged in improper conduct, and made reversible errors due solely to his lack of legal representation. The Applicant further asserts that the Ottawa Police, the CAS and counsel for the CAS have engaged in criminal and other improper conduct in the course of these proceedings, and that he requires legal counsel to prevent such alleged conduct.

[21] The Applicant states that he has experience working as a legal assistant in 2006 and 2007. He also indicates that he has experience working with the CAS and as an “advocate for genuine victims of injustice in Timmins.” In her affidavit, I.T. states that the Applicant has extensive experience working as a paralegal for at least the past three years.

The Relevant Factors and the Attorney General’s Response

Whether representation by counsel is necessary for the Applicant to have a fair hearing

[22] The Attorney General submits that the Applicant has not established on a balance of probabilities that, having regard to his specific circumstances and the nature of the case, the matter is sufficiently complex and of the most serious of cases to warrant appointing publicly funded counsel to ensure the fairness of the trial.

[23] In assessing whether a matter is sufficiently complex to require counsel, the court should begin from the premise that the trial judge can, to the best of the judge’s ability, ensure a fair trial. The Supreme Court in New Brunswick (Ministry of Health) stated, at para. 82:

[T]he trial judge is under a duty to ensure a fair hearing, and has the ability to assist the parent in the proceedings, within the limits of his or her judicial role. Even if the parent is in need of some assistance, the judge may feel that he or she can intervene sufficiently to ensure the fairness of the hearing.

[24] At paras. 86-89, the court stated that mere speculation and propositions about the potential complexity of the matter will not suffice. The evaluation of the complexity of the case requires an evaluation of the circumstances of the applicant and the nature of the case. The court will consider the complexity of the evidence, the procedural, evidentiary and substantive law that applies to the case, the likelihood of especially complex procedures, and the expected length of the trial.

[25] The Applicant has provided no evidence whatsoever that the complexity of the issues in dispute at trial will require the assistance of counsel, having regard to the factors enumerated in New Brunswick (Ministry of Health). The Applicant’s spurious allegations of the misconduct of the judiciary and counsel have not been accepted on appeal or elsewhere in these proceedings. To suggest that earlier decisions of this court were incorrect or tainted by bias, and that as a result the Applicant requires counsel, is a collateral attack on those earlier orders and an abuse of process. The case at bar is similar to the decision in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.) Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 37 in which the court held that similar declarations made by a litigant constituted an abuse of process.

[26] To suggest that opposing counsel has engaged in criminal conduct without the strongest evidence is improper on its face. In any event, the remedy for such an extraordinary situation is not the provision of counsel for the Applicant, but rather forthrightly addressing the alleged impropriety of judges or officers of the court.

[27] The court has jurisdiction to address improper conduct of the judiciary or of counsel, and such serious allegations should be addressed on their merits instead of collaterally through a motion for state-funded counsel.

[28] These scandalous allegations fly in the face of the presumption of judicial impartiality, the presumption that judges are able to assist unrepresented parties, and the presumption of proper conduct of counsel. The Applicant has failed to provide any contrary evidence aside from the bald assertions in his affidavit.

Whether legal aid has been refused and whether all possible internal appeals have been exhausted

[29] The Applicant must establish that he has been denied legal aid and that he has exhausted all possible internal appeals. The Applicant states that his legal aid certificate for both family and criminal matters was cancelled without right of appeal or review.

[30] However, even if the Applicant satisfies the court that he has been denied legal aid, the court will dismiss the application for state-funded counsel if the Applicant has been denied legal aid because of his own conduct. In R. v. Tang, unreported decision of Nordheimer J., 29 September 2011 (S.C.J.) at paras. 6 and 7, the court dismissed the application for state-funded counsel because the Applicant had failed to provide Legal Aid with a full and accurate picture of his financial circumstances and had refused the legal representation that was offered by Legal Aid. The facts in this case are similar.

Whether the Applicant has the means to employ counsel

[31] The Applicant must establish that his financial status is such that, even after making reasonable sacrifices and efforts, he would be unable to retain competent counsel to represent his interests in the matter before the court. With regards to assessing financial eligibility, jurisprudence in the child custody proceedings as in Huron-Perth Children’s Aid Society v. J. J., 2006 ONCJ 534 at para. 35 has provided factors that can be considered, such as:

(a) The applicant’s circumstances must be extraordinary;

(b) The applicant must provide detailed financial evidence of financial circumstances, including supporting evidence;

(c) The applicant must make serious efforts to save money, borrow money, obtain employment or supplementary employment and exhaust all efforts to utilize assets owned by the applicant; and

(d) The applicant must be prudent with his expenses and show foresight and planning in order to enable the financing of counsel.

[32] With respect to financial information, the Applicant has provided insufficient information that establishes details relating his financial circumstances such as income (including social assistance), savings, bank account balances and his expenses. Overall, the Applicant has failed to provide supporting documentation for the information provided regarding income, expenses and debt.

[33] There is evidence that the Applicant has, in fact, earned a significant sum of money in the previous three years and has failed to disclose that income as part of these proceedings.

CAS’s Position

[34] Counsel for the CAS advised the court that there is no complexity involved in this case. There is no protection matter before the court. The child will not be taken from the mother and placed for adoption. Counsel also argues that the Applicant has not made attempts to obtain funds to retain counsel. He has not made attempts to secure employment to cover at least part of his costs. The Applicant’s employment history shows that he can earn substantial income when he wants to work.

I.T.’s Position

[35] It is I.T.’s position that the Applicant has worked as a paralegal, running his own paralegal business for the past several years. During that time, he has earned over $120,000.00 which he has not paid taxes on. The court has also imputed an income of $39,000.00 to the Applicant for the purposes of child support for his previous child. Does someone with this income qualify for a special counsel?

[36] I.T. further submits that this case is no longer a CAS application for crown wardship of D.T. It is an application for a custody order to the mother, with no access or supervised access to the Applicant. As it does not involve any risk of imprisonment, or any permanent crown wardship of D.T., is it something that the Province of Ontario should provide special counsel for?

[37] In I.T.’s view, this is essentially a family matter between two parents and I.T. has had to retain her own counsel. The Applicant has already been declared a vexatious litigant. He has not paid the many costs orders made against him in this case or in previous cases. Would it be fair to her to grant the Applicant free legal counsel?

Decision

[38] I dismiss the Applicant’s application for state-funded counsel. Counsel for the Attorney General of Ontario assures me that the Province of Ontario does not entertain such applications when Charter issues are not triggered and when, as in this case, the Applicant’s child is not at risk to be made a ward of the Crown.

[39] The Applicant is engaged in a custody and access dispute with the mother of his child. This is not the type of litigation that attracts an obligation by the Province of Ontario to provide the Applicant with counsel funded by the taxpayers of the Province of Ontario.

[40] When I pressed the Applicant with questions about why he is not gainfully employed, he told me that he is too stressed to work, as he must devote too much time preparing his case against his wife and making himself available for supervised visits with his child. I find that a good 95% of fathers engaged in custody disputes with their spouses that come before this court are stressed but continue to be gainfully employed. The Applicant would show genuine love to his child if he worked and paid child support.

[41] Unfortunately for the Applicant, he has been gainfully employed for three years in a recent business as a paralegal. I am assured by counsel for I.T. that he is not registered as a paralegal and that he has not paid income tax on the income he has earned during those three years.

[42] All four counsel who spoke at this hearing were convinced that the Applicant lost his legal aid certificate through his own fault by not declaring his interest in the matrimonial home. In R. v. Tang, Mr. Tang had failed to disclose assets and lost his opportunity for legal aid. There is no possible appeal from LAO’s decision.

[43] I believe that the Applicant did not tell me the complete story on his finances. When I questioned the Applicant on whether he had income from other sources, he denied having any. However, on approximately $733.00 per month, which he said he receives from social assistance, he manages to pay approximately $425.00 in rent per month and, with the remaining $300.00, to eat; operate a car; own a computer; and pay his utility bills. He also told me that he is liable for a $10,000.00 overdraft with his financial institution and that he owes $19,000.00 on his visa credit card. No one has sued him so far and he told me that he is considering filing for bankruptcy.

[44] I do not find the Applicant credible. He has failed to meet the onus of clearly setting out his financial circumstances. The Applicant does not endear himself to anyone by not paying his child support or the many court costs that remain unpaid to this day. I also note that the Applicant was declared a vexatious litigant by Sheffield J. some time ago.

[45] I find that this lawsuit is not part of a Charter triggered action as stated earlier and that the Applicant is not the indigent litigator he pretends to be. If the Applicant spent less time at the courthouse complicating everyone’s life, he could work and obtain some funds to retain a lawyer on his own. Trial fairness is not affected because the Applicant has shown that he is capable of representing himself without counsel, both during this motion and during the numerous court proceedings he has undertaken so far.

Mr. Justice Paul F. Lalonde

Released: November 5, 2013