In Children’s Aid Society v. L.M., 2018 ONSC 7170, Justice Price of the Superior Court of Justice ordered costs against the Children’s Aid Society of Peel Region after they opposed a parent’s motion to have state-funded counsel to argue her appeal in a child protection matter (in which she was eventually successful). Having exhausted her rights of appeal within Legal Aid, who had refused to fund her case, the parent’s lawyer brought a “G.J motion” on her behalf seeking state funding directly from the Attorney General of Ontario.
The CAS acknowledged that the parent had met the test for state-funding: she demonstrated that the interests at stake in the proceeding engaged her s. 7 rights under the Charter, that she could not receive a fair hearing without counsel due to the complexity of the case, that she exhausted all avenues for otherwise obtaining legal assistance, and that she was unable to afford a lawyer. The CAS position in opposing the motion for funding was thus considered unreasonable, and the court ordered the agency to pay counsel’s court costs.
The Court adopted the observations of the mother’s lawyer, OACPL member Jessica Gagné, in describing the need for cost awards to incentivize parents’ counsel to take on these important appeals
“[T]his motion was only the second known motion in the province of Ontario for state-funding of a child protection appeal. This is so despite the fact that it has been over twenty years since G.J. was released by the Supreme Court of Canada. This is a problem. With only the possibility of a favourable costs order, a lawyer who undertakes one of these motions does so at his or her own expense, paying for all disbursements out of his or her own pocket (separate and apart from the number of hours that go into such a motion). (…) The reality is that, as the past twenty years have shown, it is next to impossible to find a child protection lawyer who will bring a G.J. motion for state funding of an appeal. Judicial recognition that, in appropriate circumstances, counsel may be compensated adequately for their time and effort if successful on the motion could go a long way in incentivizing the bar to advance meritorious cases, which is in the public interest.” (para 66)
The OACPL continues to monitor this case, as leave has been granted to the Peel Region CAS to appeal the costs order to the Divisional Court.