OCL welcomes ruling overturning costs order

The Office of the Children’s Lawyer has welcomed a Divisional Court judgment that overturned a costs order against it after concluding the agency acted within its statutory mandate, despite taking a position at trial that was contrary to the views of its 12-year-old client.

OCL welcomes ruling overturning costs order
Jane Long says she was worried that requests for costs against the Ontario Children’s Lawyer could become routine if the trial judge’s ruling went unchallenged.

The Office of the Children’s Lawyer has welcomed a Divisional Court judgment that overturned a costs order against it after concluding the agency acted within its statutory mandate, despite taking a position at trial that was contrary to the views of its 12-year-old client.

In Eustace v. Eustace, a unanimous panel of the Divisional Court ruled a trial judge in the protracted custody dispute was wrong to hold the OCL jointly and severally liable with the unsuccessful mother for 20 per cent of the father’s costs, which resulted in an order for the OCL to pay him $20,000.  

Writing for the three-judge panel, Ontario Superior Court justice Harriet Sachs found the trial judge erred in stating the threshold for awarding costs against a non-party such as the OCL, noting that they may only be ordered when unfair behaviour rises to a level that “undermines the fair administration of justice” or constitutes an abuse of process.

“In this case the OCL’s conduct did not exceed its statutory mandate,” Sachs wrote in the April 19 ruling. 

“It also cannot be said that the conduct of the OCL undermined the fair administration of justice or was patently unreasonable, unfair or indefensible conduct that had a significantly deleterious impact on the litigation.”

OCL counsel Jane Long, who argued the case at the Divisional Court, says she was worried that requests for costs against the OCL could become routine if the trial judge’s ruling went unchallenged. 

“Costs should only be awarded in rare circumstances; they shouldn’t be par for the course,” she says. “This is a good decision on a go-forward basis in terms of guidance for other courts.

“It doesn’t mean we get off scot-free. If we act in ways that are outrageous, then courts will order costs against us. That’s fair, and we should be held to certain standards,” Long adds.

She says it would be impossible for the OCL to maintain its current caseload if it had to worry about costs in any matter where the judge disagreed with its position, and that its unique role in the province’s family justice system warrants a more restrained approach to costs — one that is also reflected in the OCL’s rare attempts to pursue them from other parties when it comes out on the right side of a judgment.

“We’re there to represent the child, but the court, hopefully, sees us as helpful in providing information as to what’s in their best interests,” Long says. 

“You don’t want to be saying to a person in need of representation that you don’t want to bring a proceeding or advance a particular position for fear the court won’t agree, because children are going to be harmed as a result.” 

Although the award was reversed in this case, Andrew Feldstein, founder of the Markham, Ont.-based Feldstein Family Law Group, says the decision’s confirmation of the very possibility of a costs award against the OCL in extreme circumstances is still an effective check on its behaviour. 

“This wasn’t an appropriate case for costs, but it’s still a useful reminder to the OCL of its potential exposure,” says Feldstein, who was not involved in the Eustace matter. “I think it’s right that the threshold is high, because they are representatives of the state, and they’re trying to do good work representing children. It won’t happen very often that costs are awarded, but, sometimes, it needs to happen, and it’s not such a bad thing when it does.”

But Brampton, Ont. lawyer Ajay Duggal, who acted for the father in Eustace, is not so convinced the Divisional Court struck the right balance. 

He insists the trial in his case could have wrapped up within “seven or eight days,” without the involvement of the OCL or its extensive cross-examination of trial witnesses. 

Instead, the parties appeared before the judge on 24 hearing days of evidence and argument, stretching over the summer and fall of 2015. 

“We thought it was a waste of taxpayers’ money,” Duggal says, adding that his client’s request for costs was less about the money than about holding the OCL accountable for what he saw as an unnecessary prolonging of the proceedings. 

“They fought as if they were a party, so we raised the point that if the OCL is able to receive costs, then why shouldn’t they also pay,” Duggal says. But he says there won’t be a further appeal from the father, since he has run out of money fighting the long-running dispute. 

The case dates back to 2012, when the parents of the then-nine-year-old boy at the heart of the case separated. Following the split, the boy lived mostly with his father and paternal grandparents, while spending the majority of weekends with his mother, but both parents petitioned the court for sole custody.

The OCL became involved soon after, following a judge’s order requesting its intervention to provide legal representation for the young boy. 

While initially favouring a custody split in favour of the father, the agency changed its position after an independent assessment of the family carried out, at the father’s request, by a group of child psychologists.

The report, released in late 2014, expressed the assessors’ concerns about the present and future impact of the family conflict on the child’s mental health, as well as non-deliberate but potentially alienating behaviour by the father and grandparents that caused the boy to take an overwhelmingly negative view of his mother. 

By the time the trial started in May 2015, the OCL had adopted the assessor’s recommendations that if the father was unwilling to move out of his parents’ home to a place nearer the mother, then the court should consider granting the mother sole custody. 

Ontario Superior Court Justice Michael Emery ultimately decided the father should be granted sole custody, while the mother was granted access on alternating weekends.    

In his costs decision, Emery concluded that the OCL switch in favour of the mother’s position was carried out because of the father’s refusal to co-operate, in disregard to the boy’s views, and that a costs award was warranted.  

“I do not find that the OCL should be liable for costs because it took a position that was not accepted by the court, or that it acted in bad faith,” he wrote. “However, the OCL ignored the general rules of fairness by not seeking further assistance of the court before trial to obtain the cooperation of Mr. Eustace and J.M. to the process in order to complete its investigation. This lead to a very long trial, requiring Mr. Eustace to incur significant expense.”

Emery settled on 20-per-cent liability after finding the OCL’s involvement prolonged the trial by at least 20 per cent.

But, at the Divisional Court, Sachs overturned the findings and endorsed the recent analysis by Ontario Superior Court Justice Deborah Chappel in Proulx v. Proulx, where she found that the OCL should only expect to pay costs if it acted in bad faith or in the exceptional circumstances where “its actions fall short of bad faith, but it engaged in patently unreasonable, unfair or indefensible conduct that exceeded its statutory mandate or had a significantly deleterious impact on the litigation.” 

Long says the OCL faces difficult situations when, as in Eustace, children’s stated views do not line up with the agency’s opinion of their best interests. 

“The child’s voice is front and centre, and it’s important that they’re listened to, but I think that it’s also clear that it’s not going to be determinative. That’s sometimes a struggle for us,” she says.

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