28 July 2012

Paying the Fees of Child Advocates

A "child advocate" is a lawyer hired to represent the interests of a child in a family law dispute between the child's parents. (Once upon a time, the court could have appointed a "family advocate" under s. 2 of the Family Relations Act, however the provincial government defunded this program years ago.) I have been retained as a child advocate and it is a challenging but very rewarding role.

My friend Agnes Huang has pointed me to a very interesting case from the Supreme Court in 2010, C.L.M. v. D.J.M., on the issues of whether and how the cost of a child advocate should be paid by the parties.

In this unsual case, a master had given permission for the child advocate to appear on behalf of the child prior to the court hearing. The lawyer was paid by the wife. The wife was successful at the hearing and received an order that she have her costs of the application. The wife then, and this is the important part, said that the husband should have to pay for the cost of the child advocate as part of her costs.

The court said this about the child advocate:
[9] I find that the appointment of a child advocate was necessary in this case. In Dormer v. Thomas, Martinson J. noted that in family cases with complex and contentious circumstances, one of the ways the court can carry out its legal obligation to determine the best interests of the children is to have representation for the children. The appointment of a child advocate is one of the ways this can be accomplished. 
[10] Here, the situation was complex and contentious. There were claims of inappropriate sexual touching of children other than the children of the marriage, which D.J.M. denied. There were also allegations of alienation which C.L.M. denied. A report had been prepared regarding the views of the children, but it did not comment on the maturity of the children or the question of whether the children were influenced by their mother. In addition, there was no opinion evidence before the court in the form of a Family Relations Act s. 15 report commenting on the best interests of the children. In these difficult circumstances, there was a tremendous benefit to the court in having [the child advocate] present the children’s position. I found [the advocate's] submissions to be carefully considered and extremely helpful.
Having established that the child advocate served a useful role and that his retainer was not an unnecessary frivolity, the court then considered whether the expense was an expense that should be recovered by the person awarded costs as a normal disbursement, like the expense of an expert, incurred to advance the case. The court set out seven considerations that should be taken into account in this analysis:
  1. previous court approval: whether the presence of the child advocate received prior court approval;
  2. neutrality of appointment or funding: whether the child advocate was chosen and/or funded by one of the parties;
  3. consent: whether both parties consented to the appointment of the child advocate;
  4. impartiality of content: whether, as between the parties, the child advocate was neutral, impartial and objective;
  5. helpfulness of content: whether the child advocate presented evidence or argument before the court that would not otherwise have been available;
  6. ability to pay: if one party has a substantially lower ability to pay, fairness may require that the cost be shared proportionally, or that the party with greater ability to pay incur the expense; and,
  7. success: was one party substantially successful?
Considering these factors, the court held that the wife should be entitled to recover half of her expenses for the child advocate:
[16] Balancing these factors in this case, I have determined that C.L.M. is entitled to recover, as a disbursement from D.J.M., one-half of Mr. W.’s fee as advocate for the children. While C.L.M. was successful, the question of access was not finally resolved by the application. The other factors set out above are of some significance in this case. D.J.M. never consented to Mr. W.’s appointment. At the time of hearing of the application, he did not anticipate that at the end of the day he might be asked to pay Mr. W.’s fees. The application before Master Taylor did not settle that issue in a definitive way. Mr. W. carried out his duties in an impartial and appropriate way. His contribution to the proceeding was of assistance to both parties. In this case, both parties do have some ability to pay. In these circumstances, I am of the view that it is appropriate for the parties to share the expense equally.
[This is, I am surprised to see, my two hundredth post. My thanks to the law nerds and others following my blog for their continuing attention and for making this blog as popular as it has become.]