) ) CHERYL LYNN ELLIOTT ) Applicant, self-represented ) Applicant ) ─ v. ─ ), 2010 ONSC 7072

CITATION : Elliott v. Dalbergs, 2010 ONSC 7072 St. Catharines Court File No.: 292/10 Date: December 20, 2010 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: ) ) CHERYL LYNN ELLIOTT ) Applicant, self-represented ) Applicant ) ─ and ─ ) ) KRISJANIS DALBERGS ) Respondent, self-represented ) Respondent ) Mickey Cruikshank, ) for the Regional Municipality ) of Niagara, non-party ) ) HEARD: August 17, 24, ) and 30, 2010, at St. Catharines J.W. Quinn J.: ─ I INTRODUCTION [ 1 ] The applicant sought orders for custody and child support as against the respondent.

However, DNA tests conclusively excluded the respondent as the biological father of the child. The application was dismissed with costs. [ 2 ] These Reasons address the issue of whether a non-party government agency, the Regional Municipality of Niagara (“Region”), should be liable for the costs of the successful respondent. II BACKGROUND 1. Events preceding application (

a) delay [ 3 ] The applicant is the mother of a child who was born on May 1, 2002. [ 4 ] The applicant’s social assistance was terminated in 2004, resumed in April of 2007, was terminated again in October of that year and reinstated in September of 2009. [ 5 ] According to the Region, “the pursuit of child support . . . has been delayed by the fact that [the applicant] has missed office appointments and home visits and failed to respond to written requests from [the Region] on many occasions.” (

b) questionnaire

[ 6 ] On January 7, 2010, the Region requested the applicant to fill out a questionnaire “to identify the possible biological father of the child.” [ 7 ] The applicant completed the questionnaire on February 24, 2010. Question No. 1 asks: “Do you know who the father of the child is?” She answered: “No.” Question No. 12 inquires about the information that was given for the purposes of birth registration at the hospital where the child was born.

Her answer is: “I said father was unknown.” [ 8 ] In a note attached to the questionnaire, the applicant wrote: “I am in fact leaning towards [1] one person as being my daughter’s father . . . The person I think it is his name is Kris Dahlbergs (sic). . . The other possible father is Darren Deguire [2] . . . not sure of his whereabouts . . .” (

c) telephone call [ 9 ] It is the position of the Region that, on March 3, 2010, the applicant had a telephone conversation with her family support worker and reported that the last time she “spoke with [the respondent] she declared to him that she was pregnant and that it was possible that he was the father of the child . . . that he then told her he wanted nothing to do with the situation and threatened her.” (

d) no attempt by Region to encourage private agreement [ 10 ] The Region maintains that it was not considered appropriate “to encourage a private agreement for support” because of “safety concerns over the fact that [the applicant had advised] that [the respondent] had threatened her the last time they spoke . . .” (

e) applicant referred to Family Law Information Centre [ 11 ] The family support worker says that she referred the applicant to the Family Law Information Centre at the St. Catharines Court House for assistance in starting “a court application for support.” [ 12 ] The worker also alleges that she “gave neither legal advice nor assistance” in respect of the application. 2. Application commenced [ 13 ] On April 23, 2010, the applicant commenced an application in which she requested a declaration that the respondent was the biological father of the child. She also sought orders for custody and child support.

In the application, she states that the respondent is the father. [ 14 ] I observe that the applicant would benefit from the application only in the improbable event she obtained an award of child support that exceeded the social assistance she then was receiving. [ 15 ] I have no doubt that if the applicant had refused to commence the application, her social assistance would have been terminated and she was aware of that fact. [ 16 ] The application was served substitutionally upon the respondent (by mail to the residence of his father).

In the affidavit supporting her motion for substituted service, the applicant swore that the respondent was the father of the child. [3] 3. Events after application commenced (

a) June 9, 2010 – first court attendance [ 17 ] June 9, 2010 was the first return date for the application. The parties were present in court, as was the applicant’s family support worker. According to the worker, who says that she spoke with the respondent, “he stated that he thought he might recognize [the applicant] once he saw her at court, but, in fact, he did not believe he had ever seen her before.” [ 18 ] The respondent was accompanied by his godfather.

The position of the respondent is that: “[The family support worker] called us into the ante-room where she informed us that Social Services searches for the father of the child so that they can minimize the financial responsibility of Ontario Works. She also stated that she can investigate as many individuals as she feels necessary to locate the father.” (

b) DNA testing discussed [ 19 ] The family support worker contends that, in the course of the first court attendance, “I then discussed how Ontario Works could do the referral for DNA testing, but that he would have to pay in the first instance if he wanted the testing completed through Ontario Works. [The respondent] agreed to do the referral through Ontario Works and provided the information to complete the referral form.” [ 20 ] The respondent says he was told that he would have to pay for the paternity test “up-front before the testing can be done and that the reimbursement issue would be settled at a later date.” As recounted by the respondent, the family support worker said that “she could provide a discounted rate through Ontario Works.” (

c) answer [ 21 ] In June of 2010, the respondent delivered an answer in which he stated: that he did not know the applicant; that he was unaware of the pregnancy; that he never had a relationship with the applicant; that he “never saw or heard of the child before.” He queried why, if the applicant was aware of his father’s address (where the respondent also resides), he had not been “made aware sooner if this was my child” and why “in the past almost nine years there has been no attempt at contact to inform me of the existence of the pregnancy/child.” (

d) DNA test conducted

[ 22 ] In July of 2010, a DNA paternity test was conducted, the results of which exclude the respondent as the father of the child, placing the probability of paternity at 0%. The DNA report was forwarded to the Region. (

e) August 4, 2010 – second court attendance [ 23 ] The next court date was August 4, 2010.

At the court house, the family support worker advised the parties of the DNA results. [ 24 ] The respondent maintains that: Outside of chambers, [the family support worker] asked us [the respondent and his godfather] to go into an office and [the applicant] was present. [The applicant] indicated that she had been told, by her caseworker at Community Services/Ontario Works, that Ontario Works would pay for the paternity test if I was not the father. [The family support worker] immediately refuted this statement [4] at which time there was a discussion between the two of them. [The family support worker] told [the applicant] that she should check her facts, even though [the applicant] was adamant that this is what she had been told. [ 25 ] The application was adjourned. (

f) August 17, 2010 – third court attendance [ 26 ] On August 17, 2010, this matter came before me for the first time. After being informed of the DNA results, I dismissed the application and fixed the costs of the respondent to that date at $1,006.25 (including the cost of the DNA testing, various other out-of- pocket expenses and lost income). [ 27 ] The applicant was not present in court on this occasion; only the family support worker and the respondent were in attendance.

I indicated that I required the attendance of the applicant to explain why the application was brought and how she planned on paying the costs that I had ordered. [ 28 ] I found it curious that it was the family support worker and not the applicant who appeared in court to speak to the dismissal and the issue of costs. (

g) August 24, 2010 – fourth court attendance [ 29 ] On August 24, 2010, the parties once more appeared before me along with the family support worker. [ 30 ] The respondent alleges as follows: On August 24, 2010 I again attended court, with my father. Prior to entering the court chambers, [the family support worker] called me into a side meeting room and informed me that [the applicant] had told her that I had had a lengthy relationship with her covering about a one year period and [the family support worker] couldn’t understand that I was not the father.

This fact is false and I informed [the family support worker] that since I was not the father of the child, all other facts were irrelevant. It is also interesting that although [the applicant] maintains that there had been a protracted relationship, she did not know how to spell my name. During this meeting, the [family support worker] was quite assertive and somewhat disrespectful. [ 31 ] As an issue was raised by the respondent whether the Region should be responsible for payment of the costs award, the matter was adjourned to allow the Region to consult counsel. (

h) August 30, 2010 – fifth court attendance [ 32 ] On August 30, 2010, the respondent and Mr. Cruikshank, counsel for the Region, attended court. I requested written submissions from both of them on the issue of costs (desirous of taking advantage of the fact that I now had a lawyer in the room, while fully recognizing that I could not expect the respondent to cite law and being content that he simply set out his position in as much detail as he saw fit). (

i) affidavits [ 33 ] The family support worker delivered two affidavits outlining the history of the application (one sworn August 30, 2010 and the other September 7, 2010). [5] I did not call for these affidavits and do not know how they came to be prepared and served. (

j) written submissions [ 34 ] Mr. Cruikshank delivered a comprehensive factum on September 9, 2010 and this was followed by five pages of well-written submissions from the respondent. [6] III THE LAW 1. Ontario Works Act, 1997 (

a) purpose of Act [ 35 ] The essential purpose of the Ontario Works Act, 1997, S.O. 1997,

Chapter 25,

Schedule A (“ Act ”) is to provide “temporary financial assistance to those most in need while they satisfy obligations to become and stay employed:” see Act, s. 1. (

b) Region to function as delivery agent [ 36 ] Pursuant to s. 38 of the Act , the Region is required to function as a delivery agent [7] in respect of social assistance.

(

c) Region responsible for provision of financial assistance [37] As delivery agent, the Region is responsible for the administration of the Act and the provision of “basic financial assistance” in itsgeographic area. The Region is required to “meet the prescribed standards” in the “performance of its functions” and to “follow theprescribed procedures and practices”: see Act, s. 39(1) and (2). (

d) administrator to determine eligibility for financial assistance [38] The Region, through an administrator, is required to “[r]eceive applications for basic financial assistance” and to “[d]etermine theeligibility of each applicant for basic financial assistance”: see Act, s. 44. [39] Section 7(3) of the Act sets out the eligibility requirements for financial assistance and the administrator must ensure that theapplicant for such assistance provides “the information and the verification of information required to determine eligibility.” [40] If an applicant for financial assistance fails to comply with the eligibility requirements, assistance shall be refused and if a recipientof financial assistance becomes ineligible, assistance shall be reduced or cancelled: see Act, s. 14. (

e) recipient’s obligation to realize a financial resource [41] “If the administrator is not satisfied that [an applicant for, or recipient of, benefits] is making reasonable efforts to obtaincompensation or realize a financial resource or income that the person may be entitled to or eligible for, the administrator may determinethat the person is not eligible for basic financial assistance or reduce the amount of basic financial assistance granted . . .” see Act, O.Reg. 134/98, s. 13(1). [42] Therefore, the Region requires recipients to make reasonable efforts to seek an order for child support, as this would be considered“a financial resource.”[8] (

f) recipient’s obligation to provide information [43] “The administrator shall determine that a person is not eligible for income assistance if the person fails to provide the informationthe administrator requires to determine initial or ongoing eligibility for income assistance . . .”: see Act, O. Reg. 134/98, s. 14(1). (

g) family support workers to assist [44] “An administrator may designate persons as family support workers to assist[9] applicants, recipients and dependants in takingwhatever action is necessary to pursue financial support from persons with a legal obligation to provide it”: see Act, s. 59(1). [45] A “family support worker may . . . assist a member of the benefit unit[10] or the delivery agent with legal proceedings, includingvariation motions and applications, with respect to support for a member of a benefit unit . . . [and] undertake legal proceedings . . . forsupport for a member of a benefit unit . . .”: see Act, O. Reg. 134/98, s. 65.1(

b) and (c).[11] (

h) family support workers may investigate [46] A family support worker may also “undertake investigations and inquiries necessary to carry out his or her duties under thissection”: see Act, O. Reg. 134/98, s. 65.1(g).[12] 2. Costs against a non-party (

a) inherent jurisdiction to award costs against a non-party [47] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43,[13] provides no basis for an award of costs against a non-party.However, the court has inherent jurisdiction to make such an award where it is shown: (1) that the non-party had status to bring theaction herself/himself/itself; (2) that the plaintiff was not the true plaintiff; and, (3) that the plaintiff was a “man of straw” put forward toprotect the non-party from liability for costs: see Television Real Estate Ltd. v. Rogers Cable T.V. Ltd. (1997), (ONCA), 34 O.R. (3d) 291 (C.A.), at para. 16. (

b) costs against non-party only in rare circumstances [48] “[C]osts should not be made against a non-party except in unusual . . . [and] rare circumstances”: see Children’s Aid Society ofSudbury & Manitoulin (Districts) v. J.(M.) 2009 CarswellOnt 7816, 2009 ONCJ 591, [2010] W.D.F.L. 958, at paras. 17 and 18. 3.

Costs against delivery agent under the Act [49] It has been held that costs may be awarded against a delivery agent under the Act where the agent: “(1) has instigated andsupported the applicant in making the application; (2) has wrongly set this court in motion; (3) has known, or ought to have known, thatthe [application] was fruitless . . .; (4) has been unsuccessful [in the application]; (5) was effectively identified with the applicant’sapplication; (6) has effectively controlled the situation and the court process”: see Y.(A.) v. K.(L.) (1987), (ON CJ), 7R.F.L. (3d) 91 (Ont. Prov. Ct. (Fam.

Div.)), at paras. 11-18.

[50] The fact that the delivery agent merely assists the applicant with her unsuccessful application, in accordance with the governinglegislation, will not, by itself, render the agent liable to the successful party for costs: see Bristowe v. Keats 2006 CarswellOnt 422, 2006ONCJ 14, [2006] W.D.F.L. [51] Where the delivery agent “assumed a controlling role” in the unsuccessful application, such conduct may attract an award of costs:see Edwards v. McIntosh (ON CJ), 1986 CarswellOnt 1557, [1986] W.D.F.L 1066 (Ont. Prov. Ct. (Fam. Div.)), atpara. 11.

IV DISCUSSION [52] Three conclusions may be drawn at this point: (1) the Region itself had status to bring the within application; (2) the Region wasfar more likely to benefit financially from the application than was the applicant; and, (3) the Region expected to obtain that benefitwithout being exposed to liability for costs. All of this seems to be ominously close to satisfying the requirements of Television RealEstate Ltd. v. Rogers Cable T.V. Ltd., supra. [53] I do not take lightly the issue of the costs of this application.

True, the costs are modest when compared to the amounts usuallyaddressed by courts, but they are not insignificant to the respondent and, furthermore, they embody an important principle. [54] The respondent is self-employed, operating a small, one-man automotive collision repair business. Attending court has had animpact on his income. Apart from financial losses, these proceedings have produced other, very predictable effects.

In his writtensubmissions, the respondent speaks persuasively about the anxiety of being subjected to this public exercise, the intrusion in his privateaffairs and the distress and embarrassment caused to him, his family and his girlfriend. [55] The respondent, with ample justification, likens his treatment to being presumed guilty until proven innocent. [56] Although every legal proceeding carries with it inevitable inconvenience and expense, the expectation that some or all of both willbe offset by an award of costs is meant to discourage frivolous law suits and provide recompense to those wrongly sued.

However, here,that is a hollow expectation, as the applicant is, by definition, impecunious. At first glance, then, we have the perception of the Region,with a keen financial interest in the outcome of the application, hiding behind a penniless applicant with only the respondent placed atfinancial risk in the proceedings.

It hardly seems fair that the Region expects to enjoy all of the benefits of this litigation withoutshouldering any of the liabilities, particularly when one considers the manifest injustice to the respondent. [57] Yet, the application having been dismissed without testimony, I am unable to determine the true role carried out by the Region; theaffidavits of the family support worker, the factum of the Region and the written submissions of the respondent are insufficient for thatpurpose.

I need evidence from the witness box. [58] Thus, although the applicant is liable for the costs of the respondent, I am not in a position to decide whether the Region should bejointly and severally responsible for all or part of those costs without conducting a costs hearing involving testimony from the applicant,her family support worker, the administrator of the Act for this geographic area, the respondent, his godfather and anyone else withpersonal information about this case.

I require the entire process to be fully explored, under oath, from the time that the applicant soughtfinancial assistance from the Region. [59] I will be interested in such things as:

(1) Did the family support worker, in the circumstances of this case (including the fact thatthe applicant had a history of being unreliable and uncooperative in previous dealings with the Region), have a responsibility to conductan investigation on the issue of paternity?

(2) How did the applicant, in identifying the father, go from uncertainty in the questionnaire to,eight weeks later, certainty in her application?

(3) Did the respondent threaten the applicant as alleged and, if so, what are the particulars,and the implications, of the threat?

(4) Why did the family support worker not contact the respondent before the application wascommenced and afford him the opportunity to discreetly address the issue of paternity out-of-court?

(5) Was the family support worker,effectively, the controlling force behind the application?

(6) What did the family support worker not do that she would have done had theRegion itself commenced the application? V. RESULT [60] Mr. Cruikshank shall obtain a date from the trial co-ordinator for a costs hearing (after consulting with the applicant and therespondent as to the number of witnesses each intends to call).

A summons to witness shall be served on the applicant to ensure herattendance at the hearing. [61] In the event that those involved in this matter wish to discuss a settlement of the costs issue amongst themselves (a desirable result,some might think), the discussions shall be confidential and no mention may be made of them at the costs hearing. ________________________________ The Honourable Mr. Justice J.W. Quinn RELEASED: December 20, 2010 CITATION: Elliott v. Dalbergs, 2010 ONSC 7072

COURT FILE NO.: 292/10 DATE: December 20, 2010 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: CHERYL LYNN ELLIOTT Applicant - and - KRISJANIS DALBERGS Respondent REASONS FOR JUDGMENT Justice J.W. Quinn Released: December 20, 2010