Although a well-known option in criminal law, many counsel and clients are unaware that in certain very specific circumstances, a court may order the Ministry of the Attorney General to pay for the costs of a lawyer to represent the parent in child welfare proceedings. Often, courts will make such orders where there the parent is facing losing his or her child permanently in Crown Wardship proceedings and where the parent is able to prove “indigence”.
In December of 2015, I successfully argued the first reported Canadian case where a court ordered the Attorney General to pay the costs of a lawyer to represent a parent in a trial for a supervision order. The entire decision can be found here.
In addition to being the first case in the country where the Attorney General was ordered to pay the costs of a lawyer to represent a parent in a trial for a supervision order, this case is also significant because it carefully reviewed the caselaw on the financial test used for “indigence” and specifically adopted a less stringent test for financial “indigence” in child protection cases. The court further noted that applications for state-funded counsel should not be “rare” or “exceptional” as argued by the government.
Having personally had the experience of bringing these motions, I can confirm that they involve huge amounts of work. My client and I spent many many hours reviewing and establishing her financial position and responding to arguments from the government. This was truly a case of litigating against a party (the government) with virtually limitless resources. I am hopeful that our efforts will at least make it easier for future parents to make use of this option to retain counsel. However, if you are considering such an application, you need to be prepared to “open your books” on your finances and potentially endure scrutiny of your expenses by the government and the court.
If your lawyer has questions about this process, please have him or her contact me.