Sections

Judge's order that Ontario pay more to two court-appointed lawyers overturned


Published on September 13, 2017

TORONTO — An Ontario justice overstepped his authority when he ordered the attorney general to pay two lawyers the rates they wanted for helping out in a case involving a brutal child-custody dispute, the province's top court ruled Tuesday.

The Court of Appeal also found that the judge had no authority to stay the proceedings after the attorney general balked at negotiating with the lawyers, who refused to work for legal aid rates.

The case arose in a custody dispute between Melinda Morwald-Benevides and Jeffrey Benevides involving their three children. Both spouses represented themselves and, by all accounts, the proceedings were fractious, toxic and complex, according to court records.

For example, Benevides, who lives in Bermuda, accused his wife of turning the children against him, while Morwald-Benevides alleged domestic violence against her husband. She fired five lawyers before trial and refused to testify when her husband was in the courtroom. On the first day of trial in Ontario court in April 2014, Morwald-Benevides was nearly "hysterical," the documents state. She collapsed in court and an ambulance took her to hospital.

To help keep the case on track, Judge John Keast appointed lawyer Andrew Thomson as an amicus or friend of the court to represent Morwald-Benevides. He did the same for her husband, appointing his lawyer Bonnie Oldham, who had asked to withdraw because her client had fallen behind in his payments.

The attorney general, however, objected to both appointments and the pay order. Keast waited until the trial was over before rejecting the application, prompting the attorney general to appeal to Superior Court. Morwald-Benevides indicated she wanted to get involve in the appeal on the grounds that it was unfair her husband was also given a free lawyer.

The judge hearing the attorney-general's appeal, Justice Edward Koke, decided he needed counsel familiar with the case. He appointed Thomson and Oldham to act as friends of the court. Both, however, wanted to be paid more than legal aid rates.

The attorney general objected, saying it could offer other senior lawyers willing to work for legal aid pay and that the province had no obligation to negotiate with the two lawyers Koke appointed. Koke dismissed the objections and imposed a stay of the appeal, saying a judge should not be restricted to those counsel willing to work at legal aid rates.

The attorney general then turned to Ontario's top court, arguing Koke was wrong. The attorney general also maintained only one lawyer was needed and that he or she should have come from a list provided by the province. 

The Court of Appeal agreed. It cited a Supreme Court of Canada ruling that judges generally cannot order a government to spend money. A stay, the country's top court found, would only be appropriate where the help of a judge-appointed lawyer was essential, and the lawyer and attorney general could not agree on pay.

"At no point did the (Supreme Court) impose an obligation on the attorney general to negotiate remuneration rates with court-appointed amicus," the Appeal Court said.

Nor is a judge entitled to appoint a specific lawyer in cases where the attorney general has offered other appropriate counsel, the Appeal Court said, adding that one lawyer would have sufficed for the appeal.

The Appeal Court set aside Koke's stay and directed him to appoint one of the lawyers offered by the attorney general prepared to work at legal-aid rates.

Colin Perkel, The Canadian Press