In a relatively recent decision, costs were awarded against the Office of the Children’s Lawyer (OCL) where the court found that its actions “protracted the case and lengthened the trial”. The decision is interesting and illustrates some considerations courts will take in determining whether a costs award against a government organization is warranted in a family law context.

What Happened?

The custody trial at issue lasted 24 days and was described as “long and bitter” and a “battle of perceived entitlements”.

The father in question expected to have sole custody of the former couple’s child, with little regard to the child’s best interests in having his mother be a presence in his life. In contrast, the mother wanted equal parenting rights without proposing any plan that would support this position and without offering any evidence that she was willing to make an effort to meet the father halfway in terms of parenting effectively.

The court noted that:

…the parties resorted to the trial process to utilize all resources available to them for the court to determine what parenting regime would be in [the child’s] best interest. In doing so, each of them engaged a process that cost themselves not only time and emotional capital, but also legal expense. One way or another, there shall be costs awarded according to the right of one party or another to seek those costs for the trial.

Costs Against the OCL Requested

Both parents claimed costs against one another, and the father also claimed costs against the OCL in what the court called “an unusual order to join [it] as a party liable to pay the costs of the trial jointly with [the wife]”.

The father argued that the OCL’s position at trial had been aligned with that of the wife, had encouraged her to maintain her position throughout, and had lengthened and complicated the trial. He further argued that the OCL should be held liable in situations like this where their counsel had total control over how to conduct the case and what position the organization took throughout the litigation.

The OCL’s position was that this was an unusual case from their perspective and that:

  • They had originally taken a position that was largely supportive of the father’s request for joint custody with primary residence of the child being with him;
  • Despite this, the father had denied the OCL any meaningful communication with the child, “hampering the OCL’s ability to represent [the child] effectively”;
  • The father had requested a s. 30 custody-access assessment which provided evidence that the child’s interests would best be served by either living equal amounts of time with each parent or being placed in the care of his mother;
  • Due to the lack of meaningful contact with the child, the OCL ended up relying largely on the evidence provided in the assessment and took the position that the mother should have custody of the child.

The OCL opposed the father’s costs claim, arguing that:

  • There is no presumptive entitlement to costs against a government agency;
  • Taking a position that is not accepted by the court is not sufficient to attract a costs order;
  • OCL’s counsel’s conduct did not amount to bad faith nor was it conduct that could be characterized as unfair or unreasonable; and
  • An award of costs against the OCL would be “tantamount to an award of costs against a lawyer”.

The Law on Claiming Costs Against the OCL

The court noted that in past situations, costs have been awarded to other agencies, such as the Children’s Aid Society, and against the OCL. The court also noted that while the OCL itself rarely seeks costs when it finds itself in a position to do so, it has done so, especially where it has taken considerable time and expense responding to a case that had little merit. The court emphasized that if the OCL can claim costs on this basis, there is no reason why costs cannot be awarded against the OCL on the same basis.

In this case, the court found that the OCL had favoured the position of the mother because the father had refused to cooperate with them. As such, the OCL had relied on the findings in the s. 30 assessment. The court noted that instead of doing so, the OCL could instead have made a motion compelling the father to either cooperate or facilitate meetings between the OCL and the child.

The court went on note its concern that OCL counsel and the investigator assigned to this matter “may have permitted their personal views to usurp their professional function”, and that:

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. However, the OCL ignored the general rules of fairness by not seeking further assistance of the court before trial to obtain the cooperation of [the father] and [the child] to the process in order to complete its investigation. This lead to a very long trial, requiring [the father] to incur significant expense.

The court concluded that:

…the OCL’s involvement protracted the case and lengthened the trial. The trial would have proceeded in any event and would have taken a certain period of time. However, the involvement of the OCL and the position that it took against [the father] essentially fortified the position of [the mother] and increased the length of the trial by at least 20%. I am therefore making the OCL jointly and severally liable with [the mother] for approximately 20% of the costs and disbursements awarded, namely to the extent of $20,000 inclusive of HST.

Lessons Learned

As noted by the court in this case, costs have been awarded both in favour of the OCL and against the OCL on various occasions, albeit not very often. Courts have generally recognized that:

Like any other litigant, [an organization like the OCL] must conduct itself according to the rules.  It is given broad investigative scope, and cannot and should not be liable for costs for actions it takes in good faith in its duty to investigate cases.  That, however, does not give [it] licence to ignore the general rules of procedural fairness.  When it does, it should be liable in costs.

This case illustrates that, while it is rare to do so, costs can be awarded against the OCL in situations where their involvement complicates, lengthens, or otherwise impedes a trial.

In family law disputes involving children, significant consequences can result for families if the Office of the Children’s Lawyer or another organization such as a Children’s Aid Society becomes involved.  At Borden Family Lawour lawyers frequently deal with this very particular area of family law, and can help guide you through these complicated and often delicate matters. We pride ourselves on our client-focused service and take the time to understand each family’s unique circumstances and concerns. We represent parents and guardians throughout any investigations and related legal matters, and ensure that the best interests of their children are protected. To see how we can help you resolve your issue, call us at 905-576-6090 or contact us online. Ask about our flat fees.