British Columbia (Attorney General) v. T.L.

2010 BCSC 105 British Columbia (Attorney General) v. T.L. THE SUPREME COURT OF BRITISH COLUMBIA Citation: British Columbia (Attorney General) v. T.L., 2010 BCSC 105 Date: 20100127 Docket: S-20426 Registry: Chilliwack IN THE MATTER OF THE CHILD, FAMILY AND COMMUNITY SERVICE ACT, R.S.B.C. 1996, c. 46 AND THE CHILDREN: B.L.L., born (DOB) and A.J.L., born (DOB) Between: Attorney General of British Columbia Appellant (Respondent) And: T.L. and A.L. Respondents (Parents/Applicants) And: Director of Child, Family and Community Service Respondent (Applicant) Before: The Honourable Madam Justice E. J. Adair On Appeal from: The Provincial Court of British Columbia, September 15, 2009 Chilliwack Registry File No. F8858 Reasons for Judgment Counsel for the Attorney General: S. Bevan and N. Sharma A.L.: In Person Counsel for the Director of Child, Family and Community Service: L. A. MacDonald Place and Date of Hearing: Chilliwack, B.C. December 4, 2009 Place and Date of Judgment: Vancouver, B.C. January 27, 2010 Introduction [1] This is an appeal by the Attorney General of British Columbia (the "AGBC") of an order made on September 15, 2009 by Judge Skilnick of the B.C. Provincial Court, whereby Judge Skilnick ordered that: The Government of British Columbia shall pay the Parents [the respondents T.L. and A.L.] their solicitor-client costs, in accordance with the Legal-Aid Tariff in British Columbia, for representation in this action in response to the Director's application for continuing custody orders [in relation to the children, B.L.L. and A.J.L.]. [2] Judge Skilnick's reasons for judgment are indexed at 2009 BCPC 293. [3] Judge Skilnick began his reasons by providing an overview of the nature of the application, as follows: [1] This is an application for an order appointing counsel to represent Mr. and Mrs. L., (the "Parents") in their opposition to the application brought by the Director of Child Family and Community Service (the "Director") for an continuing custody order of the Ls' children. The Director is applying for continuing custody orders under the Child Family and Community Service Act (the "CFCSA") in respect of the Ls' two children: B.L.L., born [DOB], and A.J.L., born [DOB]. The Parents oppose the granting of an order and now ask for an order appointing counsel to represent them at the hearing of the Director's application for the continuing custody orders. [2] The power for a court to make an order appointing counsel in CFCSA proceedings stems from the rights guaranteed under section 7 of the Canadian Charter of Rights and Freedoms (the "Charter"), which reads as follows: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [3] The Parents rely on the Supreme Court of Canada's decision in New Brunswick (Minister of Health and Community Services) v. G.(J.) [1999] 3 S.C.R. 46 as authority to grant the remedy they are asking for. In that decision, the court held that applications for continuing custody orders threaten the rights of parents to security of the person as guaranteed under section 7 of the Charter. The case set out the circumstances under which a court can order the state to fund counsel for unrepresented parents. Mr. Maddock, acting as amicus curae with the Parents, argues that the circumstances of this case support the granting of such an order, while Ms. Bevan on behalf of the Attorney-General of British Columbia, argues that they do not. [4] The AGBC has brought this appeal relying on s. 81 of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 (the "CFCSA"), which provides in subsection (1) that "A party may appeal to the Supreme Court from an order of the Provincial Court made under this Act," and Rule 49(2) of the Rules of Court. The AGBC says that s. 81 provides a right of appeal in this case because Judge Skilnick concluded the power of the Provincial Court acting under the CFCSA to issue a "JG order" is one that is necessarily implied in the statute. [5] Pursuant to s. 81(7) of the CFCSA: After hearing the appeal, the Supreme Court may do one or more of the following: (a) confirm the order of the Provincial Court; (b) set aside the order of the Provincial Court; (c) make any order that the Provincial Court could have made; (d) direct the Provincial Court to conduct a new hearing. [6] The AGBC asserts three grounds of appeal. [7] First, the AGBC says that Judge Skilnick erred in law in defining a relaxed standard of "indigency" for the purpose of determining entitlement to state-funded counsel in child protection proceedings, and that this standard is inconsistent with the financial eligibility requirements that have been developed in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.) and, in B.C., in R. v. Malik, 2003 BCSC 1439, 111 C.R.R. (2d) 40. Counsel for the AGBC argues that Judge Skilnick's approach was directly contrary to recent authority - although there is no B.C. authority - indicating that the Rowbotham analysis of financial eligibility is equally applicable in the child protection context. The AGBC argues further that there is no principled basis for the divergence in approach, and that it does not properly take into account the constitutional dimensions of the remedy. [8] Second, the AGBC says that Judge Skilnick erred by improperly narrowing the scope of inquiry on the facts and refusing to defer to the AGBC's efforts to negotiate a reasonable contribution agreement with the Parents as a condition to funding counsel. The AGBC says that Judge Skilnick did not ask himself the right question and ought to have considered the Parents' capacity for contribution more broadly. Assuming some leeway could be identified, the AGBC says that Judge Skilnick ought to have dismissed or adjourned the Parents' application in order to permit the negotiation of a reasonable contribution agreement on that basis. The AGBC says that this is a question of mixed fact and law. [9] Third, the AGBC says that Judge Skilnick disregarded or misapprehended significant evidence regarding the Parents' financial circumstances. In particular, the AGBC says that Judge Skilnick overlooked that certain expenditures attributed by the Parents notionally to childcare could not have been incurred for that purpose, since the Parents have not had custody of their children in the past year. On questions of fact, the standard of review is palpable and overriding error. [10] At the hearing of the appeal, and in addition to counsel for the AGBC and Mr. L. (Mrs. L. was unable to attend the hearing), I had helpful submissions from Mr. MacDonald, who is counsel for the Director of Child, Family and Community Service. As such, he took no position on the appeal, although brief written submissions were filed on behalf of the Director. However, as an officer of the court, and since the Parents were without counsel at the hearing, Mr. MacDonald made brief oral submissions, including highlighting certain passages from the judgment in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124 ("JG") pertinent to the issues on this appeal, and suggesting possible grounds on which some of the cases on which the AGBC relies might be distinguished. I am grateful for his assistance. [11] An application by the AGBC for a stay of Judge Skilnick's order was refused by Mr. Justice Grauer on October 27, 2009, and I was advised by counsel that the Parents now have legal representation in accordance with the terms of Judge Skilnick's order, pending the resolution of this appeal. I was also advised that the hearing of the application on the merits is scheduled to begin in September 2010, and will likely continue and be concluded in November 2010. The Proceedings Below [12] The Parents' two children were apprehended in 2008 under the authority of the CFCSA. The children have since remained in the custody of persons other than the Parents under temporary custody orders granted by the Provincial Court. Temporary custody orders are of limited duration (see CFCSA, s. 45). If the Director remains of the view that children should not be returned to their parents, the Director must apply for a continuing custody order under CFCSA s. 49. In this case, the Director has initiated continuing custody applications in relation to the Parents' children. The trial will hear evidence from experts, and the court will be asked to determine whether the Parents are capable of safely parenting the children. In written submissions, the Director stated that this is not a case where the Director is pointing to drugs or alcohol as interfering with the capacity of the Parents to parent their children, and the Director is not saying that the Parents have not over time engaged or attempted to engage with social workers in developing plans for the children. [13] In November 2008 and January 2009, the Parents applied to the Legal Services Society of B.C. ("LSS") for legal aid in connection with the continuing custody applications. However, they were refused legal aid on the basis that their income exceeded LSS financial eligibility guidelines. The most recent refusal was communicated to the Parents in a letter dated February 27, 2009. [14] On April 1, 2009, the Parents filed an application in Provincial Court for an order requiring the government to fund legal counsel to represent them in relation to the continuing custody applications, relying on JG and ss. 7 and 24(1) of the Canadian Charter of Rights and Freedoms. The Parents' application finally came on for hearing before Judge Skilnick on September 4, 2009. [15] Before Judge Skilnick, the Parents were able to receive some assistance from duty-counsel, Mr. Maddock. However, Mr. Maddock had a number of other matters to deal with that day, and, as a result, he was not in a position to make detailed submissions on the merits of the Parents' application. In support of their application, the Parents had filed a statement of income and expenses prepared by a certified management accountant, which covered the period from January 1, 2009 to July 12, 2009 (the "Income and Expense Statement"). It showed a net family income of $3518 per month, and expenses of $3,390. An earlier proposal from the AGBC to provide funding for legal counsel, conditional on the Parents contributing a total of $2,400, payable in three monthly payments of $800, had been based on an assumption that the Parents had a net family income of $5,000 per month. There was evidence before Judge Skilnick that the Parents had sought debt counselling with the Credit Counselling Society and reorganized their debts with the society's assistance. [16] At the hearing, the gist of the AGBC's position was that there is an indigency requirement which the Parents simply did not meet. Counsel for the AGBC advised the court that the AGBC had tried to show some flexibility and reasonableness in the case, and had made the offer to fund counsel contingent on there being some contribution from the Parents. However the Parents' response was that they were not in a position to make any contribution. Counsel argued that, where the question is one of contribution, the appropriate approach is for the court to dismiss the application, allow the Parents and the AGBC to continue to negotiate over contribution (where the AGBC remained flexible) and grant the Parents liberty to reapply. Counsel for the AGBC pointed out that the Parents' financial presentation of their net monthly income was based on a family of four, but they did not have custody of the two children. Whereas the legal aid cut-off for a family of four is a net monthly income of $3050, for a family of two it is $1950. [17] In the course of her submissions before Judge Skilnick, counsel for the AGBC reviewed a number of authorities, including R. v. Malik, which she submitted is the leading authority in B.C. on what "indigence" means. She submitted that, until the Parents regained custody of their two children, they were a household of two, not four. Counsel argued that, based on the case law, the Parents did not meet the indigency requirements. She then highlighted the AGBC's view of the potential consequences if the court were to find the Parents in this case were indigent and order funding, thereby creating a precedent and opening the floodgates. Counsel repeated that the AGBC would remain open to some sort of contribution agreement. [18] With respect to any contribution agreement, counsel for the AGBC observed that, as a practical matter, there were "detailed terms" that would have to be worked out, following discussion. Counsel submitted that the court had no choice in the circumstances but to dismiss the Parents' application. She repeated that the AGBC's offer concerning a contribution agreement would remain open, and if the Parents' circumstances changed, they could then reapply to court. [19] In his submissions, Mr. Maddock argued that the application process ought to be a summary one - not one involving months and months of document exchange as if it were a civil case - since fundamentally the rights of children are at stake. He submitted that the whole thrust of the legislation is to deal with matters promptly, citing ss. 2, 3 and 4 of the CFCSA. These sections provide, in part: 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: . . . (g) decisions relating to children should be made and implemented in a timely manner. . . . 4 (1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interests, including for example: . . . (g) the effect on the child if there is delay in making a decision. [20] Mr. Maddock pointed out that the AGBC and the Parents had been debating for over a year whether the Parents have the means to retain counsel. Mr. Maddock noted that the remedy in JG is not a stay of proceedings, as it is in a criminal case. Rather, he argued the remedy was the very one the Parents were seeking - an order appointing counsel - since that is the only thing that will enable resolution of the issues in a timely manner. Mr. Maddock submitted that there is a greater prospect for an appeal where parents embark on representing themselves and do so inadequately - a problem that could be avoided if the parents were provided with counsel at first instance. [21] In response to the AGBC's submissions that the Parents' application should be dismissed to permit further negotiation of a contribution agreement, with liberty to the Parents to reapply if negotiations were unsuccessful, Mr. Maddock again returned to the importance of dealing promptly with matters involving children and noted that negotiations take time. Mr. Maddock argued that, as a matter of principle, the question to be determined is whether parents can reasonably be expected to retain competent counsel within the time limits and principles laid out in the governing legislation, and if they cannot reasonably be expected to do that, then it is not a question of middle ground (i.e., negotiation of a contribution agreement), but one of the court making the order appointing counsel, to ensure that the hearing on the merits will proceed expeditiously. [22] In his reasons, Judge Skilnick began by summarizing the legal principles from JG. After considering the jurisdiction of the provincial court to make the order sought and concluding the court had jurisdiction, Judge Skilnick then turned to examine the meaning of "indigence" for the purposes of the application before him. [23] Judge Skilnick said, at paras. 10-15: [10] In New Brunswick v. G. (J)., the court spoke about the duty to provide counsel for "indigent persons" but did not elaborate on who was indigent. In their submissions, counsel for the Attorney-General referred to several criminal decisions in the context of "Rowbotham applications" where the term "indigent" was considered. Mr. Maddock argues that the principles applicable in criminal cases are different from applications such as the one in this case and that a more inclusive definition should be adopted in order to meet the requirement of procedural fairness. [11] The jurisprudence in criminal cases suggests a fairly rigorous standard for determining indigence. For example, in R. v. Malik 2003 BCSC 1439, Madam Justice Stromberg-Stein summarized the framework for an application for the appointment of counsel and the criteria for establishing indigence: 22 It is important to recall the relevant principles applicable to an application for state-funded counsel. These principles can be summarized as follows. Basic Framework of Rowbotham A trial judge confronted with: An exceptional case; Where legal aid has been refused; Who is of the opinion that representation of the accused by counsel is essential to a fair trial; and Who is satisfied that the accused lacks the means to employ counsel; may stay the proceedings against the accused until the necessary funding of counsel is provided. (Rowbotham) Burden The evidentiary burden is on the applicant to demonstrate all aspects on a balance of probabilities. (Black Pine, J.D.J., Crossman; Beauchamps) It is a very heavy burden. (Black Pine; Seifert) For a prospective or an anticipated breach of the right to fair trail [sic], relief is available only on proof there is a sufficiently serious risk that the alleged violation will in fact occur. (Cai) Standard of proof is "high degree of probability" or "real and substantial risk" (Cai); "the existence of a sufficiently serious risk or of a strong or high degree of probability". (Beauchamps). Financial Eligibility The applicant's financial circumstances must be extraordinary. (J.D.J.; Black Pine; Francis; Crossman; Seifert). Difficult circumstances are not enough. (Normand) The applicant must provide detailed financial evidence of his/her financial circumstances. (J.D.J.; Black Pine; Kovach, Regier, Seifert) The applicant must make efforts to: Save money; (J.D.J.; Black Pine) Borrow money; (J.D.J.; Beauchamps). This include[s] efforts to borrow from children or family members; (Seifert) Obtain employment or additional employment; (J.D.J.; Black Pine) Look for counsel willing to work at legal aid rates; (J.D.J.) Exhaust all efforts to utilize assets that the applicant owns to raise funds. (J.D.J.; Black Pine; Beauchamps; Regier; Mitton). If the applicant can pay some of the costs, s/he is expected to do so. (J.D.J.) The applicant must be prudent with his/her expenses and show foresight and planning of financial affairs to enable financing of counsel: (J.D.J.; Regier; Dobbie; Normand; Nightingale; Guilbride) Lack of planning or foresight need not be planned or deliberate. An applicant who declines to borrow funds on reasonable terms may properly be considered to have chosen to represent himself. (Couture) CRITERIA REQUIRED TO ESTABLISH INDIGENCY 23 The Rowbotham jurisprudence establishes that, to be eligible for state funding, Mr. Malik must present detailed financial evidence to demonstrate: (a) extraordinary financial circumstances; (b) attempts to obtain funds to retain counsel; (c) prudence with expenses and prioritization of payment of his legal fees; (d) efforts to save for the cost of counsel and to raise funds by earning additional income; (e) he has made all reasonable effort to use his assets to raise funds, for example by obtaining loans; (f) whether he is in a position to pay some of the costs of counsel; (g) the income and assets of his spouse and family. [12] Counsel for the Attorney-General was able to provide me with a number of written decisions where this question was considered in the course of applications for counsel in child protection cases. None of these cases directly define indigence, but some of them are helpful in their determination of the question. For example, in Family and Children's Services of Guelph and Wellington County v. F. (K.) [2002] W.D.F.L. 46; 2001 Carswell Ont. 4084 (Ont. C.J.), Caspers J. dismissed an application for appointment of counsel. He found that the applicants were not indigent but were "parents with a reasonable income who, with a reworking of their priorities, should be able to retain counsel" (at para. 42). [13] In R. F. v. T.T. [2006] Y.J. No. 66 (Yukon Terr, Ct.) , the court denied an application to provide government-funded counsel in a child protection case on the grounds that indigence had not been established. . . . [14] Huron-Perth Children's Aid Society v. J.J. [2006] O.J. No. 5372 (Ont. C.J.) is another example where a parent was found not to be indigent because he had "not been prudent in marshalling his resources to allow him to retain counsel privately" despite having had eighteen months to do so. [15] These cases do not establish any hard and fast rules about when a family litigant will be considered to be indigent. They do support the principle that one may have an income outside of the guidelines for legal aid coverage and yet still be indigent. The cases also suggest that a determination of this question will turn on such factors as the length of the case, the estimated cost of counsel, whether it is possible for the applicant to afford counsel with a reorganization of finances and whether or not the party has been diligent in making the necessary arrangements to obtain counsel. All of these factors must be considered under the umbrella of the guiding principle that the goal sought to be achieved is procedural fairness. [24] Four of the five requirements for an order appointing counsel were not in issue before Judge Skilnick, who said (at para. 18): [18] Counsel for the Attorney-General fairly concedes that four of the five requirements for an order appointing counsel in this case are present in this case. Specifically: (a) Seriousness of the interest at stake: as the Supreme Court of Canada stated in New Brunswick v. G. (J.), the removal of children from parental custody by government constitutes a serious interference with parental integrity and threatens to restrict the Parents' rights to security of the person under section 7 of the Charter. Few government actions can have a more profound effect on the lives of both the parents and the children than an application for a continuing custody order. (b) Complexity of the proceedings: the application for a CCO will involve a multi-day hearing, requiring the Parents to present evidence, cross-examine witnesses, make objections, argue issues of law, develop an understanding of the CFCSA, all while under significant emotional strain. I am satisfied that proceedings of this nature are significantly complex enough to conclude that procedural fairness calls for the assistance of counsel. (c) Capacity of the Parents: the Parents in this case are diligent and concerned parents. I am advised that they have attended all of the court proceedings despite risk to their employment due to numerous court appearances and the resulting absences from their jobs. I mean no disrespect to them when I say that they do not present themselves as being possessed of the "superior intelligence or education, communication skills, composure and familiarity with the legal system in order to effectively present" their case, the qualities referred to by Chief Justice Lamer in New Brunswick v. G.(J.) They are not legally trained, and will require the assistance of counsel to effectively communicate their opposition to the order sought. (d) Jurisdiction of this court: For the reasons stated earlier, I am satisfied that this court is a court of competent jurisdiction within the meaning of section 24(1) of the Charter and therefore has the jurisdiction to grant the remedy sought. [25] I note that, rather than "conceding" these four points, the position of counsel for the AGBC was that they were not in issue before Judge Skilnick - a subtle difference, but one that counsel for the AGBC considers important. Nevertheless, at the hearing of the appeal, counsel for the AGBC agreed that these four points were not being disputed by the AGBC in the Parents' case. [26] Therefore, the only matter in issue before Judge Skilnick was whether or not the Parents are indigent. Judge Skilnick observed (at para. 19): [19] . . . No precise definition of this term is set out in the jurisprudence, though it appears clear that when parties falls within the guidelines for legal aid coverage, they meet the definition. In those cases however, the issue is usually moot because such a party will then be able to have a lawyer appointed and paid for by the Legal Services Society. [27] Judge Skilnick then went on to consider the financial circumstances of the Parents. He noted that for legal aid coverage in B.C., applicants must have a net monthly household income that is not in excess of certain limits set by the LSS, depending on the number of persons in the household. For a household of four, the net monthly income limit is $3050. Judge Skilnick continued (at paras. 21-22) (underlining added): [21] The Parents in this case have an average net monthly income of $3518. For a household of four, this places them $468 above the net monthly income in their category for legal aid coverage. Their most recent financial statement shows expenses of $3390, leaving monthly disposable income of $128. The financial statement shows the family to live frugally. The food budget of $400 per month appears low for a family of this size and the only discretionary spending that might possibly be questioned is the $100 per month spent on tobacco. Mrs. L. advises that her hours at her job may be cut back in future, as her employer is becoming frustrated with her absences from work to attend to court proceedings. The family budget does not appear to have sufficient wiggle room to meet an emergency or other unforeseen expense such as the cost of a lawyer. [22] In some of the cases where applicants were not found to be indigent, the conclusion was reached that the family budget would be able to fit in the cost of a lawyer with a rearranging of priorities. It is difficult to reach the same conclusion when one looks at the situation of these parents. They have already entered into an arrangement through a credit counselling agency by which they make a monthly payment of $420 which is apportioned among their creditors. This is not a situation where a rearrangement of budget priorities will result in freeing up the money to pay a lawyer. [28] Judge Skilnick noted that, in June 2009, the AGBC had made a proposal to the Parents to fund the cost of legal counsel provided the Parents made three payments of $800 per month. The proposal was based on a net family income of $5,000 per month, and based on a family of four. Judge Skilnick noted that this proposal had been made prior to the Parents providing the Income and Expense Statement. This statement, on which Judge Skilnick relied, showed a net family income of $3,518, not $5,000, as the AGBC had assumed. In response to the AGBC's argument that, by refusing to accept its offer, the Parents had failed to make an effort to borrow money to pay for their legal costs (as suggested in R. v. Malik) and therefore failed to qualify as indigent, Judge Skilnick said (at para. 24): [24] . . . There is no room in the Parents' budget for an additional monthly payment of $800. There does not appear to be any reasonable rearranging of their finances which would free up an additional $800 a month for them to accept this proposal. Accordingly, I am unable to fault the Parents for failing to accept the proposal made by the Attorney-General. [29] Judge Skilnick then proceeded to consider various definitions of "indigent." He concluded (at para. 25) that the term connotes a level of poverty in which significant hardship and deprivation exist, but it does not require the lowest level of poverty. He continued (at paras. 27-29) (underlining added): [27] From a review of all of the case law, I conclude that for a person to be indigent, they need not be homeless, unemployed or penniless. This conclusion is supported in the fact that a person might work full-time at a minimum wage job and yet still fall within the guideline for legal aid coverage. Many of the working poor will be considered indigent where they are in receipt of a low wage from which there is considerable difficulty in covering reasonable living expenses. When such persons are faced with an unforeseen expense such as a need for legal counsel in order to provide a fair hearing to defend a right under section 7 of the Charter, they have no reasonable means of meeting that expense because of their financial situation, which can properly be described as indigence. [28] This is the situation that I find the Parents in this case to be in. While they are not homeless, destitute or jobless, their plight is such that, despite their best efforts at supporting themselves, they are unable to generate sufficient income to support a reasonable manner of living that allows for sufficient surplus income to pay for a lawyer to represent them in an application for a CCO. They have taken reasonable steps to budget frugally, even going so far as to embark on a scheme for the orderly payment of their debts, but despite this, no reasonable option presents itself from which they can meet the cost of counsel in response to the government's application to take custody of their children. Even if they were to stop paying their creditors and devote that money to the cost of counsel, they would only be able to pay for half of the scheme proposed by the Ministry of the Attorney-General. Under these circumstances, I find the Parents to be indigent, as that term is used within the context of an application for counsel as contemplated in New Brunswick v. G.(J.) [29] Such an interpretation is, in my view, consistent with what was contemplated by the Supreme Court of Canada in New Brunswick v. G.(J.), where Madam Justice L'Heureux-Dube wrote: 125 Taking into account all these factors, it is likely that the situations in which counsel will be required will not necessarily be rare. Proceedings will in many cases be complex, and the consequences, when the child may be removed from the home, are generally serious. Funded counsel must be ordered whenever a fair hearing will not take place without representation. The determination of this question must take into account the important value of meaningful participation in the hearing, taking into account the rights affected, and the powerlessness that a reasonable person in the position of the claimant may legitimately feel when faced with the formal procedures and practices of the justice system. The trial judge's duty to ensure a fair trial may therefore, when necessary, involve an order that the parent be provided with legal counsel, and trial judges should not, in my view, consider the issue from the starting point that counsel will be necessary to ensure a fair hearing only in rare cases. The Arguments on Appeal [30] On the hearing of the appeal, the AGBC submitted a thoughtful and detailed 34-page written argument and a two-volume brief containing almost 50 authorities (cases, legislation and "secondary sources"). I would say this presentation reflects the dangers the AGBC perceives in the prospect that Judge Skilnick's decision will be followed, with the potential result that a more relaxed test of financial eligibility will begin to be applied for the purposes of JG orders, as compared with the stringent standards described in R. v. Malik. The Parents, who are simply seeking legal assistance to deal with a continuing custody application involving their two children, where the AGBC is not disputing they meet four of the five requirements, find themselves involved in a test case. [31] The AGBC submits that Judge Skilnick's first and central error was in defining financial eligibility in a manner fundamentally at odds with the following cases: Rowbotham; Malik; Her Majesty the Queen v. Dennis (September 19, 2002) Salmon Arm Registry No. 5305 (15017-2) (B.C.S.C.); R. v. Couture (May 22, 2003), Vancouver Registry No. CC011149 (B.C.S.C.); R. v. Steele (May 18, 2005), Vancouver Registry No. 22724 (B.C.S.C.); R. v. Martell, 2009 ONCA 46, 94 O.R. (3d) 60, rev'g [2008] O.J. No. 550 (S.C.J.); and, in the child protection context and in addition to JG, Re V., 2009 SKQB 50, R.F. v. T.T., 2006 YKTC 57, Family & Children's Services of Guelph & Wellington County v. K.F., [2001] O.J. No. 4548 (Ct. of Justice) and Huron-Perth Children's Aid Society v. J.J., 2006 ONCJ 534. Counsel for the AGBC refers to the last four of these cases as the "Four JG Cases," and I will do likewise. [32] The AGBC argues that the word "indigence" is, on its own, misleading shorthand for what is required of an applicant in order to establish financial eligibility for state-funded legal counsel outside the parameters of the legal aid system, where the applicant's income exceeds the guidelines. The AGBC submits the test of "financial eligibility" (which the AGBC says is the better term) that has evolved in this province, as summarized in R. v. Malik, is not a simple across-the-board income cut-off at some level above the legal aid guidelines, but rather a detailed and relative assessment that is sensitive to the court's circumscribed role in granting constitutional remedies of this nature. The AGBC argues that the test of financial eligibility can be broken down into four distinct aspects. [33] First, in the AGBC's submission, the assessment must proceed from a broad conception of the financial means potentially available to the applicant to pay for legal counsel privately. The AGBC says that this approach is illustrated in Huron-Perth Children's Aid Society and Re V. [34] Second, the AGBC says there is a heavy evidentiary burden on the applicant to prove to the court the full length and breadth of his or her financial means. The AGBC says that the applicant must provide documentary evidence (income tax returns, bank records, loan documents, property statements, and so on), along with explanations for discrepancies in the evidence and fluctuations in income over time. The AGBC again cites Re V. on this point, as well as Family & Children's Services of Guelph. [35] Third, the AGBC submits the court must assess the means in relation to the legal costs in issue. The AGBC compares the costs potentially involved in the "mega-trial," with the costs involved in defending a simple breach charge, and argues that "financial eligibility" is not co-extensive with poverty, but is a relative concept, dependent on means and the costs likely involved. [36] Fourth, the AGBC says there is a requirement for contribution. The AGBC submits that, to the extent that an applicant can make a contribution, whether immediately or on some deferred basis, the applicant is expected to do so. Counsel cites Mr. Justice Melnick's ruling in R. v. Steele as an example where the court ordered funding for counsel conditional on the accused making a specific contribution. She submits that it is open to me on this appeal to make such an order. [37] In the child protection context, the AGBC again cites Re V. on the requirement of contribution. However, I note that Saskatchewan is one of the jurisdictions where the concept of contributory legal aid has been formalized by the legislature (see The Legal Aid Regulations, 1995, R.R.S. c. L-9.1, Reg. 2, s. 4). That is not the case in B.C. [38] The AGBC argues that Judge Skilnick's central error began with the suggestion that the framework for analysis set out in criminal cases such as R. v. Malik was somehow beside the point in the child protection context. The AGBC points out that Judge Skilnick noted (reasons, para. 10) the submission of Mr. Maddock that the principles applicable in criminal cases are different from applications such as the one in this case and that a more inclusive definition should be adopted in order to meet the requirement of procedural fairness. Then, following reference to R v. Malik and the "fairly rigorous standard" for criminal cases, the AGBC says that Judge Skilnick went on to express the view (reasons, paras. 12 and 19), that there was no direct or precise definition of "indigence" for purposes of this case. The AGBC submits that Judge Skilnick went on to approach the task before him as being, therefore, to define afresh the concept of financial eligibility for purposes of JG applications - as encapsulated by the word "indigence." In the AGBC's submission, this approach was fundamentally wrong. [39] The AGBC submits that the substantially relaxed nature of the test that Judge Skilnick applied was reflected in his approach to the evidence. Counsel for the AGBC says that Judge Skilnick did not assess the evidence with a critical eye. Ms. Bevan says that he noted none of the discrepancies; required no explanation from the Parents for their accumulation of debt; and ignored obvious leads, which ought to have put him on inquiry that the evidence before the court was incomplete. She says that, in addition, Judge Skilnick's misstatement of the extent of the discretionary expenditures disclosed by the Income and Expense Statement may be explained, alternatively, by his having had in mind a more inclusive standard of "indigence" than the Rowbotham cases would suggest is appropriate. [40] The AGBC argues that Judge Skilnick's approach is contrary to the court's circumscribed role on applications for state-funded counsel, which is not to establish across-the-board income criteria alternative to those calibrating the legal aid system, but rather to identify "extraordinary situations" beyond the contemplation of the existing system. Ms. Bevan argues that, in focusing on "indigence," rather than financial eligibility, and relying on case law with respect to the waiver of court fees, Judge Skilnick fundamentally misconceived the nature of the inquiry, its constitutional dimensions, and the need for the assessment to be relative rather than absolute. [41] Even though there was no B.C. authority dealing with the precise question before Judge Skilnick, the AGBC also takes issue with the premise that Judge Skilnick was addressing a matter of first impression. The AGBC submits emphatically that Judge Skilnick was not required to reinvent the test for financial eligibility. Ms. Bevan argues that the Rowbotham jurisprudence provides an extensive and detailed body of law addressing the question of financial eligibility for state-funded counsel as a matter of constitutional right, where the applicant's income is above the legal aid guidelines. She argues further that the Four JG Cases support the applicability of the principles from the Rowbotham jurisprudence - without relaxation or modification - to the child protection context. Ms. Bevan submits that the link is made particularly clear in Re V., and she observes that Judge Skilnick did not mention this case in his reasons, although it was cited to him in argument. [42] The AGBC argues further that, even if one sets the Four JG Cases to one side as leaving room for divergence in the law in B.C. (because they are few in number and were decided in other provinces), there is simply no principled basis for relaxing the financial eligibility principles summarized in R. v. Malik, when addressing applications in child protection cases. In counsel's submission, the reasoning and concerns underlying the test are the same in both contexts. [43] The AGBC submits that an alternative basis for distinguishing the Rowbotham cases, implicit in Judge Skilnick's judgment (and referring in particular to paras. 15-16, 29 of the reasons), is the notion of a shifting standard of financial eligibility depending on the degree to which procedural fairness is in issue. The AGBC asserts this implies that the more essential counsel is to ensure fairness of the hearing, the lower the standard of financial eligibility that should be required of the applicant. Ms. Bevan argues that Judge Skilnick appears to have considered a relaxed financial eligibility test to be justified because procedural fairness concerns in child protection proceedings are in some sense particularly acute, or of a unique nature, as compared to criminal proceedings. Ms. Bevan submits that the difficulty with this approach is that hearing unfairness without counsel, and inability to pay for counsel, are distinct criteria. She argues there is no support in the Rowbotham case law for a sliding scale of financial eligibility that would permit the application of a less stringent standard of financial eligibility to an accused such as Mr. Malik (for example), faced with a prosecution that was serious and complex to the highest degree. [44] Finally, the AGBC takes issue with Judge Skilnick's comments in para. 16 of his reasons, where he said: [16] As a preliminary observation, I would note that much of the jurisprudence suggests that applications of this nature are often denied for technical reasons such as failure to provide proper notice, or failure to file proper supporting material. For those who have worked among legal aid clientele and other members of the working poor whose access to justice is limited by their circumstances, such an approach is troubling. Often these persons are ill equipped to meet the formalities called for either due to a lack of education. poor literacy skills or other impediments and challenges. Budgetary cuts to the legal aid system and to other poverty law programs previously accessible to those who might qualify for this type of relief, exacerbate the problem and add more obstacles for those most in need of assistance. I[n] my view, these are important considerations which should be born in mind in these types of applications, given that the governing principle is one of procedural fairness. [45] The AGBC argues that these comments suggest that the court should waive "formalities" and "technical" requirements of the test for parents in child protection proceedings, because these are applicants who are often within the vulnerable demographic of the "working poor", "ill equipped to meet the formalities called for either due to a lack of education, poor literacy skills or other impediments and challenges." The AGBC argues Judge Skilnick's comments imply that child protection cases are different, because of the nature of the applicants. The AGBC argues that, rather than being a difference, this is a point in common with criminal cases, because accused persons in criminal proceedings are often similarly vulnerable. In any event, the AGBC submits that providing the court with basic documentation such as income tax returns, pay stubs, and bank records for the full period of time in issue, should not present an insurmountable obstacle for unsophisticated applicants, and that such evidence is a prerequisite to the court reaching the conclusion that a given applicant comes within the demographic described by Judge Skilnick, rather than being a mere formality. This argument implies that, unless all of such documents are provided, the court must, as a matter of law, dismiss a parent's application as failing to satisfy the burden of proof. The AGBC says that it would be inconsistent with the court's circumscribed role in granting JG orders for there to be a presumption of financial eligibility simply because the case appears, on first impression, to involve smaller sums of money. A first impression or inference as to the resources available to an applicant, based on his or her presentation in court and unsupported assertions, may prove incorrect on further inquiry. The AGBC argues further that, while the amount of funding in issue for an individual child protection case in provincial court may generally be less than for a serious criminal proceeding, the underlying concern with accountability for the expenditure of public funds is no less compelling, taking into account the cumulative effect of a relaxed standard of financial eligibility across many such cases. This again emphasizes that the AGBC sees Judge Skilnick's ruling as a dangerous precedent, opening the floodgates. [46] The second error the AGBC says Judge Skilnick made was refusing to defer to the AGBC's efforts to negotiate a reasonable contribution agreement. The AGBC submits that Judge Skilnick considered the contribution principle in his analysis only to the extent of noting an earlier June offer by the AGBC to fund on the condition the Parents contribute $2400 over three months towards their legal costs. Judge Skilnick found this to be unreasonable, given the analysis of the Parent's financial circumstances done by the certified management accountant, and his analysis of the Parents' means on that basis. [47] The AGBC argues that counsel had indicated at the hearing that the AGBC was prepared to remain flexible in negotiating a contribution agreement with the Parents, and that the reason the matter was before the court was that the Parents had taken the position they could not afford to make any monthly contribution at all. The AGBC submits that the question Judge Skilnick ought to have considered was whether on the evidence there was some smaller monthly contribution within the Parents' means (e.g., $400 per month over six months, or $200 per month over 12 months). If so, then the AGBC submits Judge Skilnick should have dismissed or adjourned the application to allow the AGBC to settle a contribution agreement with the Parents based on that reasonable amount. [48] The AGBC submits that, instead of either dismissing or adjourning the Parents' application (having found the $800 per month offer too high), Judge Skilnick jumped to the analysis that he should therefore grant the application if the Parents lacked sufficient discretionary income to pay all the costs of legal representation. In the AGBC's submission, this gave short shrift to the principle that financial eligibility is not an "all or nothing" proposition, and ignored the AGBC's express commitment to entertain more flexible terms of contribution. The AGBC says that he has never taken the position in this case that the Parents should be expected to pay in full their legal costs. Instead, the AGBC says this has always been a case about contribution - not, immutably, the $800 per month offer made on the basis the information available in June, but rather whatever amount, if any, may be reasonable, based however on what the AGBC argues must be a "complete and accurate picture" of the Parents' circumstances. [49] Third and finally, the AGBC argues that, insofar as Judge Skilnick may have implied in his reasons a finding of fact that the Parents had no leeway to make any monthly contribution at all, he simply misapprehended the evidence. The AGBC argues that, taking the Income and Expense Statement at face value, and accepting the Parents' $420 per month in debt management payments as a legitimate deduction from income, the Parents' budget still includes what the AGBC says are about $800 per month of discretionary expenses which Judge Skilnick ought to have taken into account in assessing the Parents' capacity to make a contribution. The AGBC specifically identifies expenditures for cable, cell phones, internet, entertainment, tobacco, "special occasions" and a miscellaneous category, all of which totalled $803, as items Judge Skilnick ought to have taken into account. [50] The AGBC says that the explanation provided by the Parents, that certain of these expenditures (e.g., babysitting included under "miscellaneous") were attributable to childcare needs, overlooks that they have not had custody of their children for the past year, a situation that will continue until at least September 2010. The AGBC says in effect that Judge Skilnick should have concluded the Parents could have diverted some portion of their discretionary expenses during the time their children were not in their custody towards making contribution payments. [51] Ms. Bevan submits that comparison of the Parents' situation to that of some of the applicants of more modest means in the Rowbotham cases, in purely numerical terms, underscores that, at that Parents' level of income, a requirement for contribution is appropriate. She cites Couture and Martell in support of this point. She submits further that the dollar numbers in Family & Children's Services of Guelph are also sufficiently close to the Parents' to be instructive. There, parents with a joint gross monthly income of approximately $4490 according to their previous year's tax return (or $3800 according to their sworn financial statement), and debt of $17,800, were held to be "parents with a reasonable income who, with a reworking of their priorities, should be able to retain counsel", and therefore altogether ineligible for a JG order. [52] Mr. L. made brief submissions. He emphasized the point that he and his wife were not applying for a Rowbotham order. Rather, they were applying for assistance based on the principles set out in JG. [53] As I noted above, Mr. MacDonald also made brief oral submissions in his capacity of an officer of the court, and because the Parents are without counsel on this appeal. Among other things, Mr. MacDonald noted there is no legislation in B.C. requiring a contribution from an individual receiving legal aid, as there is in other provinces. Mr. MacDonald also highlighted passages from both JG and the Four JG Cases as providing support for an argument that Judge Skilnick made no errors and reached his conclusion by correctly applying the law as set out in JG. [54] One of the passages from JG that Mr. MacDonald highlighted is Chief Justice Lamer's comments at paras. 103-104 (underlining added): [103] As similar cases may arise in the future, I will briefly outline the procedure that should be followed when an unrepresented parent in a custody application seeks state-funded counsel. The judge at the hearing should first inquire as to whether the parent applied for legal aid or any other form of state-funded legal assistance offered by the province. If the parent has not exhausted all possible avenues for obtaining state-funded legal assistance, the proceedings should be adjourned to give the parent a reasonable time to make the appropriate applications, provided the best interests of the children are not compromised. It goes without saying that if the parent, whether or not he or she is able to pay for a lawyer, chooses not to have one that there will be no entitlement to state-funded legal assistance: see Rowbotham, supra, at p. 64. This is because the parent voluntarily assumes the risk of ineffective representation, for which the government cannot be held responsible. [104] If the parent wants a lawyer but is unable to afford one, the judge should next consider whether the parent can receive a fair hearing through a consideration of the following criteria: the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent. The judge should also bear in mind his or her ability to assist the parent within the limits of the judicial role. If, after considering these criteria, the judge is not satisfied that the parent can receive a fair hearing and there is no other way to provide the parent with a lawyer (i.e., pursuant to a statutory power to appoint counsel), the judge should order the government to provide the parent with state-funded counsel under s. 24(1) of the Charter. I hasten to add that I am limiting my comments here to child protection proceedings, and need not and should not comment as to other kinds of proceedings. [55] The AGBC argues that Re V. contains the clearest link between the test for "indigence" in the child protection context and the test applied in the criminal cases following Rowbotham and in particular in R. v. Malik. However, on the facts, the applicant mother had accumulated debts of $35,000 without explanation. The court concluded that there were too many unanswered questions, although these were not limited to the applicant's financial circumstances. The court mentioned it did not know whether the applicant had tried to persuade Social Services to return the children without the need for litigation, and the court was also unable to conclude that the applicant treated the return of her children as a priority. [56] Mr. MacDonald submitted that here, the Parents have demonstrated that the return of their children was and is a priority for them. One of the ways they have done this is by their faithful attendance at the court proceedings, despite the difficulties this has created with their employers and the risks to their jobs. [57] Apart from the AGBC's submissions concerning the financial contribution he submits must made by the Parents, I did not understand the AGBC to argue that the Parents did not treat return of their children as a priority. Discussion and Analysis [58] The fundamental premise of the AGBC's position on this appeal, seen in the first ground of appeal, is that regardless of the context in which an application for the appointment of counsel is made, there should be and must be no difference in the court's approach to assessing financial eligibility, and that the strict approach set out in Rowbotham and Malik must be followed in all cases. This premise is reflected in the AGBC's submission that no principled basis exists for relaxing the financial eligibility principles summarized in R. v. Malik, when addressing applications in child protection cases. If I accept this premise, the AGBC's appeal must be allowed, because I agree with the AGBC that Judge Skilnick did not follow the strict Rowbotham-Malik approach in ruling on the Parents' application. [59] However, I do not accept this premise because I do not consider that it is consistent with what the court said in JG. Moreover, in my view, the Four JG Cases, and specifically Re V., do not mandate such a strict approach in the child protection context. [60] As I noted at para. 54 above, in paras. 103-104 of JG, Chief Justice Lamer outlines the procedure that should be followed when an unrepresented parent in a custody application seeks state-funded counsel. Rowbotham had, of course, been decided more than a decade earlier, and Chief Justice Lamer in fact cites Rowbotham in para. 103. I do not read Chief Justice Lamer's procedural outline as listing only those steps that must be taken after there has been a determination of the applicant's "financial eligibility." Rather, an assessment of whether the parent "is unable to afford" a lawyer is part of the process. Chief Justice Lamer does not use the words "exceptional" or "rare," which however do appear in the summary of the Rowbotham framework set out in para. 22 of R. v. Malik. On the other hand, Chief Justice Lamer is careful to limit the scope of his comments to child protection proceedings. I repeat his concluding words in para. 104: "I hasten to add that I am limiting my comments here to child protection proceedings, and need not and should not comment as to other kinds of proceedings." [61] I also note another important passage from JG, which was quoted in full by Judge Skilnick. I do this in response to the AGBC's argument that JG orders are and must be "rare and exceptional," and the AGBC's reliance on R.F. v. T.T., where the court said the applicant's situation "does not fit into the category of extraordinary or rare circumstances" that would justify an order appointing state-funded counsel. "Exceptional" and "rare" are words used in Rowbotham, at p. 69 (para. 194). However, at para. 125, Madam Justice L'Heureux-Dube (writing for McLachlin J. (as she then was) and Gonthier J.) said (underlining added): [125] Taking into account all these factors, it is likely that the situations in which counsel will be required will not necessarily be rare. . . . The trial judge's duty to ensure a fair trial may therefore, when necessary, involve an order that the parent be provided with legal counsel, and trial judges should not, in my view, consider the issue from the starting point that counsel will be necessary to ensure a fair hearing only in rare cases. [62] Thus, while the context of Rowbotham orders is that cases where proceedings are stayed until counsel is appointed will be exceptional and rare, in the child protection context, trial judges have been cautioned in JG not to approach the issue from the starting point that counsel will be necessary only in rare cases. [63] In addition, in the child protection context, it is not simply a contest between the applicant for state-funded counsel and the state. Obviously, children are also involved. The AGBC argues that the court should either dismiss or adjourn applications in the child protection context unless documents such as income tax returns, pay stubs and bank records for the full period in issue are produced by the applicant(s). However, the delays inherent in the evidence-gathering that the AGBC argues is required under the Rowbotham-Malik approach affect children, and the CFCSA provides that, in determining the child's best interests, all relevant factors must be considered, including the effect on the child if there is delay in making a decision. Moreover, while taking time to negotiate a contribution agreement may be acceptable where the contest is between the applicant and the state, taking this time in the child-protection context puts a fair determination of the children's best interests at risk, and delays that determination. [64] There is no issue in this case that counsel for the Parents is necessary for a fair trial. However, based on the position advanced by the AGBC concerning the scope of production and disclosure required in order for the court to determine "financial eligibility" and for the parties to negotiate a contribution agreement, nothing will happen quickly. Indeed, nothing has happened quickly. In my view, the strict approach which the AGBC argues Judge Skilnick should have taken in this case is inconsistent with the principles set out in ss. 2 and 4 of the CFCSA. [65] The AGBC relies heavily on Re V. in support of his position, and implies that, because it is not cited in his judgment, Judge Skilnick wrongly overlooked it. However, there is no obligation on a judge to cite in his or her reasons every case that was cited in argument. I have noted above that Re V. was decided against a legislative background that requires contribution from an individual receiving legal aid. Moreover, as I read the court's judgment, it does not endorse the strict approach the AGBC is advocating. At para. 10, G.D. Dufour J. says (underlining added): [10] . . . For the benefit of the applicant, who was self-represented on this motion, I will set out with greater specificity some of the factors that are properly considered before a court ought to find that a parent is indigent such that it is appropriate to order state-funded legal counsel in such cases. In so doing, I adopt the conceptual framework and some of the factors set out in R. v. Malik [citation omitted]. . . . The court then continues, at para. 11 (underlining added): [11] In applications such as this, an applicant must present sufficient information to enable the court to assess his or her financial circumstances and priorities. The applicant should establish: (a) That there have been reasonable attempts to resolve the matter without the need for litigation. It must be established that the Minister will not return the children voluntarily, with or without conditions attaching; (b) That the cost of legal counsel will be such that the matter in dispute cannot be litigated without state-funded counsel. In some cases, the applicant will have to provide an estimate of the cost of the proposed litigation; (c) That the applicant has made all reasonable effort to use her earnings and assets to raise funds in order to pay the legal fees associated with the proposed litigation, for example by obtaining loans from family and/or a spouse and/or financial institutions; (d) That the applicant has made an effort to save for the cost of counsel and perhaps to raise funds by earning additional income; and (e) That the applicant has been prudent with his or her income and assets such as to make evident that the priority has been to retain counsel herself. This is not an exhaustive list. It would not be appropriate for me to comment on the amount of financial detail that an applicant should provide to the court. That will vary from case to case. I caution, however, that care must be taken not to make the requirements so onerous that the self-represented parent will find it too difficult to make out a case. I point out as well that the consideration of the applicant's financial situation does not necessarily result in "all or nothing". In some circumstances, a court may conclude that the applicant is in a position to pay some of the costs of court appointed counsel. [66] In my view, the approach taken by the court in Re V. is not materially different from that taken by Judge Skilnick. After reviewing the evidence, Dufour J. concluded the applicant had not satisfied her burden of proof, and she was given leave to submit additional material if she wished. In the Parents' case, Judge Skilnick was able to reach a conclusion on the matters before him, based on the evidence presented. [67] The remaining three of the Four JG cases are not inconsistent with Judge Skilnick's ruling, in my opinion. Based on these cases, Judge Skilnick was not wrong when he observed that there was no direct or precise definition of "indigence" for the purposes of the Parents' application, and the cases do not, in my view, support the conclusion that Judge Skilnick was wrong in how he dealt with the Parents' application. [68] In Family & Children's Services of Guelph, the court found (para. 42) "the respondents in this proceeding are not akin to 'indigent parents' referred to in" JG. This finding could only have been based on the evidence presented. There was, however, another reason to refuse the parents' application in that case, namely that they in fact had counsel, who was ordered to continue to represent them at trial. [69] In R.F. v. T.T., the court concluded (para. 8) that the financial information provided by the father was incomplete. However, on the basis of the evidence presented, the court found (para. 12) that "the father is capable of earning an income of $60,000 for 2006 and that he had no significant assets or debts." The court went on to say, at para. 23: [23] I conclude that the father has had the opportunity to earn a decent, if not considerable, income for his family in the past years. In my view, he is quite capable of managing his financial affairs to make provision to retain counsel for this one-week trial. His situation simply does not fit into the category of extraordinary or rare circumstances that would compel this court to appoint state-funded counsel. I should add that it is also my view that the father is a highly intelligent young man who will be adequately able to represent himself with the assistance of the Court. The application for state-funded counsel is dismissed. [70] However, this is not the situation of the Parents. In contrast to Veale Terr. Ct. J.'s conclusion that the father was a highly intelligent young man who could adequately represent himself, there is no issue in this case that the Parents require the assistance of counsel. Judge Skilnick observed (at para. 18) that "I mean no disrespect to them when I say that they do not present themselves as being possessed of the 'superior intelligence or education, communication skills, composure and familiarity with the legal system in order to effectively present' their case." On the evidence before Judge Skilnick, the Parents are struggling together to earn a much more modest income than the $60,000 the court in R.F. v. T.T. concluded the father alone could earn. [71] In Huron-Perth Children's Aid Society, there were three reasons why the father's motion was dismissed. The first, which the motions judge described as "fatal" to the motion, was that the father had not served the Attorney-General of Canada with notice of a constitutional question. The second was that the father had dismissed his counsel, and sought and obtained the court's permission to represent himself. This would be sufficient to disqualify the father under JG. The motions judge concluded that, in those circumstances, it was improper for the father to come back to court seeking an order for publicly-funded counsel. The final reason, and the only one that might provide support for the AGBC's position on this appeal, was that the father's income exceeded the level of income permitted by the legal aid regulations. The court noted that the father did not seek legal aid until very late in the process, and was concerned about how the father had managed the litigation, including discharging his previous lawyer. On the evidence, the father had an RRSP in the approximate amount of $3,600, paid almost $300 a month towards RRSP contributions and gave his mother $300 per month for her support. The court concluded (at para. 39) that there was nothing in the evidence before her to indicate the father's financial situation was "of such a nature that he cannot afford private counsel." On the facts, this case is distinguishable from the Parents' case. [72] In my view, the second and third grounds of the AGBC's appeal are primarily an attack on Judge Skilnick's findings of facts and inferences. The AGBC says that Judge Skilnick ought to have dismissed or adjourned the Parents' application so that they could continue negotiations concerning a contribution agreement. However, the option of negotiating of a contribution agreement was not something that Judge Skilnick simply overlooked. It is apparent from his reasons that he considered this option, and concluded, based on the evidence presented, that it was not viable in the circumstances. I am unable to conclude that Judge Skilnick was clearly wrong in coming to that conclusion. [73] The AGBC also say that Judge Skilnick disregarded or misapprehended significant evidence concerning the Parents' financial circumstances. However, what Judge Skilnick had to determine was whether, on a balance of probabilities and based on the evidence presented, the Parents qualified as indigent. In my view, this ground requires looking at Judge Skilnick's interpretation of the evidence as a whole. While the AGBC argues that Judge Skilnick should have demanded more proof from the Parents, Judge Skilnick was able to draw conclusions based on the evidence presented. It is apparent from his reasons that Judge Skilnick considered cases (on which the AGBC relies on this appeal) where the evidence had been found wanting, but he did not draw that conclusion. He found that the Parents lacked the means to retain counsel privately and they were unable to reorganize their affairs to do so because they were already stretched to their limits. In my view, there was evidence to support his conclusions, and he was not clearly or palpably wrong. Conclusion [74] In summary, in my opinion, Judge Skilnick's approach to the question before him was consistent with the law as stated in JG. Despite the able and thorough arguments of counsel for the AGBC, I am not persuaded that Judge Skilnick erred in his approach, or in his analysis of the evidence, or in the conclusions that he reached. [75] I therefore confirm the order of the Provincial Court. The AGBC's appeal is dismissed. "The Honourable Madam Justice E.J. Adair"