I have a client who recently lost her child to Crown Wardship with no access in a child welfare proceeding. She had a 12 day trial. She wanted to appeal as she felt the judge had made an unfair decision as well as serious errors in law.
However, she could not afford the transcripts. The costs of transcripts have recently gone up to $7.02 a page. The cost of transcripts for a 12 day trial would be staggering. We received a quote of $16,003.50. Each party needs a set of transcripts, the judge, the Children’s Aid Society, and the lawyer. We struggled with how to have the costs of the transcripts covered by the government because my client could not afford the costs. The client was formerly on a legal aid certificate before it got cancelled 6 months before trial. The client appealed to the area committee for legal aid funding and was denied. She appealed the area committee decision and was denied once again. We wrote to senior counsel at legal aid and literally begged them to consider to pay the costs of the transcripts. They said no.
We struggled over what to do because it just made no sense that she would lose her right to pursue an appeal that had merit simply because she is indigent. I decided to bring a motion to ask Legal Aid Ontario (LAO) or the Ministry of Attorney General (MAG) to pay the costs of counsel fees and disbursements for the appeal. Essentially I was bringing a motion within an appeal. The judge gave me very little time to bring my motion against MAG and LAO because the clock was ticking against us as we had already missed the statutory timelines to perfect the appeal and the child’s future would be held in limbo during the appeal process. I brought a motion against the Ministry of Attorney General of Canada, and Ontario and Legal Aid Ontario to compel them to pay fees and disbursements of the appeal. The motion was the first of its kind in Ontario. My position was that my client was being denied the right to appeal the lower court judgment because she is indigent and cannot afford transcripts or counsel. This breaches her s.7 Charter right to life, liberty and security of a person. There can be no indignity greater than the loss of a child and that the loss of a child is of national importance which transcends beyond the everyday personal circumstance. There is case law to support that the courts will order the government to provide state funded counsel, but only in the rarest of cases and has never been ordered in Ontario.
There must be very exceptional circumstances for the court to order state funded counsel using a number of criteria depending on whether the Applicant is indigent, the education and personal facilities of each person, whether they have exhausted all levels of legal aid appeal process, have any other access to funding, the seriousness and complexity of the case, and whether there is merit to the appeal. In criminal jurisprudence, an accused can bring a Rowbotham Application to ask for a stay of the criminal proceedings if state funded counsel isn’t provided. I argued that that the criminal courts use these criteria to stay judicial proceedings and that the same criteria should be used in a child welfare proceeding. The proceedings are analagous as if one is indigent and cannot afford counsel, it could result in a s.7 Charter violation.
We had to show that there was merit to our appeal. We basically were being put to the test of seeking leave to appeal which is not required in a family law appeal, in order to be provided funding. I was able to convince the judge that there was merit to the appeal, even without any transcripts by pointing out the errors in the reasons for judgment. I argued that the judge had made serious and palpable errors which were plainly seen just by reading the reasons for judgment.
The order is the first of its kind in Ontario. It is an advancement for indigent persons who cannot afford representation or disbursements and who face the threat of losing a child.
Now the hard part….12 days of transcripts to read and a 30 page factum to prepare………
