ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-35-13
DATE: 2014-03-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Barbara Lynnae Hollis
Applicant
- and -
Christian Lynn Sachs & Adam Sachs
Respondents
G. William Corby, Counsel for the Applicant
Appearing in Person
THE HONOURABLE MR. JUSTICE P.B. HAMBLY
JUDGMENT ON COSTS
[1] Barbara Hollis is the mother of Christian Sachs. She and her husband Adam Sachs are the parents of three children, ages 3, 5 and 7.
[2] Ms. Hollis has brought an application in which she seeks a court order giving her access to her grandchildren. This is strongly opposed by the parents. I denied her motion for an order appointing the Office of the Children's Lawyer (OCL) to do a social work assessment. In my judgment ([2014] O.J. No. 314) I held that the value to the court of an investigation by the OCL “…would be much less than its cost in terms of the disruption to the family of Christian and Adam” (para.15). I asked counsel who appeared on the motion to provide written submissions on costs.
[3] Having been successful in defending the motion, Adam and Christian Sachs seek costs of $3,245. They are self-represented in defending the application. They retained a lawyer to defend the motion. They are again self-represented. They have filed their written submissions on costs as self-represented parties.
[4] The lawyer charged them $1,500. Their claim for costs consists of her fee of $1,500. They also claim lost time from work of Christian Sachs, which she sustained while she attended the Family Law Information Center (FLIC) at the Court House waiting to speak to a lawyer provided by legal aid to give her advice and other incidental expenses such as mileage, parking, babysitting and meals. In their written submissions they point out that Ms. Hollis brought the application in the Superior Court rather than in the Ontario Court of Justice (OCJ) where they would have had access to Duty Counsel. I doubt that because even to be entitled for representation by Duty Counsel there they would have had to meet a stringent means test. Also even if Duty Counsel would have made submissions on their behalf in OCJ, Duty Counsel would not have been able to file material. Also Duty Counsel would not have had the time to absorb the rather complicated factual background.
[5] This case raises the conundrum and dilemma faced by people who cannot afford to retain a lawyer to represent them in court on issues of central importance in their lives so eloquently expressed by Justice Karakatsanis for the Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7, [2014] S.C.J. No. 7 as follows:
1 KARAKATSANIS J.:-- Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.
[6] The issue of grandparent access, when it is opposed by the parents, is a difficult one. In my judgment I quoted from the decision of the Court of Appeal in Chapman v. Chapman, 2001 24015 (ON CA), [2001] O.J. No. 705 in the judgment of Justice Abella (as she then was, now a judge of the Supreme Court of Canada) in which she stated the following:
20 In this case, however, the issue is not about preserving a positive relationship, but about whether the disruption and stress generated by the grandmother's insistent attempts to get access on her own terms are in the children's best interests. (citations omitted)
This is how I interpreted the material as to what was happening in this case. Adam and Christian Sachs are undoubtedly hard working people who are doing the best that they can on limited income to raise three children.
[7] Mr. Corby, who represents Ms. Hollis, points out that Adam and Christian Sachs have not filed any material from their lawyer, Ms. Mackenzie, setting out the work that she did, that the lawyer filed no material on their behalf on the motion and that their claim for costs likely includes costs incurred for defending the application rather than being isolated to the motion. The latter point is likely true but it would be impossible for a lawyer to give advice on defending the motion without understanding the application.
[8] Taking all the above factors into account I fix costs at $1,500 to be paid by Barbara Hollis to Adam and Christian Sachs within 30 days.
Justice P.B. Hambly
Released: March 19, 2014
COURT FILE NO.: FS-35-13
DATE: 2014-03-19
ONTARIO
SUPERIOR COURT OF JUSTICE
Barbara Lynnae Hollis
– and –
Christian Lynn Sachs & Adam Sachs
JUDGMENT ON COSTS
Justice P.B. Hambly
Released: March 19, 2014