COURT OF APPEAL FOR ONTARIO
WEILER, CHARRON and MOLDAVER JJ.A.
B E T W E E N:
R.L. and T.L.
Tamra A. Mann,
for the appellants
Applicants (Appellants)
- and -
CHILDREN’S AID SOCIETY OF THE NIAGARA REGION, R.K. and C.K., C.M. and JOHN SIMON (counsel for the children, J.K. and R.K., born July 29, 1999 and M.K., born July 23, 2000)
Donna Wowk, for the respondent, Children’s Aid Society of the Niagara Region
R. John Harper for the respondents, R.K. and C.K.
Nelson A. McKay, for the respondent, C.M.
and Martha Heder, for the Office of the Children’s Lawyer
Respondents
Heard: November 6, 2002
On appeal from the order of Justice J. R. Henderson of the Superior Court of Justice dated October 4, 2002.
ADDENDUM ON COSTS
1On December 16, 2002, the court dismissed the appeal in this matter. In its decision, the court granted leave to the parties to make written submissions respecting costs of the appeal and the proceedings in first instance.
2Having received those submissions and considered them, we are of the opinion that the parties should bear their own costs of the appeal and of the application. The appeal raised the novel issue of whether the Superior Court should exercise its general supervisory jurisdiction when the timelines contemplated by the Child and Family Services Act R.S.O. 1990, c. C11 (the Act) respecting protection applications for children who had been apprehended were grossly exceeded.
3The application judge acknowledged that the issues before him, “were unusual and perhaps unique”. He declined to make an order that there be no costs on the basis that the applicants sought an order that would have benefited them and that in bringing the application they had to be aware of the risk that costs would be ordered against them.
4We do not agree that the facts demonstrate that the foster parents were motivated only by their own self-interest as opposed to acting in what they perceived to be the best interests of the children. Budgell J. of the Ontario Court of Justice had ordered that it was in the children’s best interests to remain in their present foster setting but that reasonable access be afforded to the family members pending the outcome of the child protection proceedings. The CAS’s interpretation of “reasonable access” was that it had the right to place the children on extended visits with the family members with the result that the children would be residing with the appellants only a few days in between these visits. The foster parents were concerned that this in effect undermined the court’s order and ignored the possible effect on the children of such a disruption in the continuity of their care. This concern was a major factor driving the proceedings before Henderson J. The fact that, in the unusual circumstances of this case, they ultimately chose the wrong forum in which to bring their concerns forward for adjudication should not result in an award of costs against them. It is not the norm for costs to be awarded in child protection cases where an applicant is unsuccessful. See e.g. Catholic Children’s Aid Society of Metropolitan Toronto (Municipality) v. C.M., 1994 83 (SCC), [1994] 2 S.C.R. 165 and, by analogy, Rule 24 of the Family Law Rules which provides that the presumption that a successful party is entitled to costs does not apply in a child protection case.
5Accordingly, leave to appeal the costs order of Henderson J. is granted, the costs order is set aside, and in its place an order will go that each party bear his or her own costs of the application. We further order that there be no costs of this appeal.
Released: March 5, 2003
“KMW”
“Karen M. Weiler J.A.”
“Louise Charron J.A.”
“M.J. Moldaver J.A.”
