WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.—(7) Order excluding media representatives or prohibiting publication.— Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.—(3) Offences re publication.— A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
ONTARIO COURT OF JUSTICE
BETWEEN:
CHILD AND FAMILY SERVICES OF GRAND ERIE
Applicant,
— AND —
Ka.R. (deceased), T.H. (service dispensed with), A.M., K.R., Algonquins of Ontario Consultation Office (noted in default)
Respondents
Before Justice K.A. Baker
Heard on March 19, 20, 21, 24, 2025
Reasons for Judgment released on July 7, 2025
Shera Luu......................................................................... counsel for the applicant society
Neshee Richardson..................................................... counsel for the respondent, A.M.
Elizabeth Porter............................................................ counsel for the respondent, K.R.
Eliza Montour...................................... counsel for the Office of the Children’s Lawyer,
legal representative for J.M.
BAKER J.:
- This is my endorsement on costs in relation to the trial of an issue that was heard March 19, 20, 21, 24, 2025. All counsel were content with the issue being determined on the basis of written submissions.
The background of this matter is unusual.
The issue that required adjudication in this trial was a mid-trial application by the OCL. This application was dismissed after hearing. The Applicant agency and the maternal grandmother, K.R. initially sought their costs of the hearing and filed submissions accordingly. The Applicant seeks costs against the OCL alone. The maternal grandmother sought costs against both the OCL and the Respondent father.
The maternal grandmother subsequently withdrew her claim for costs against both the OCL and the Respondent father.
The OCL first raised the issue of whether the child J.M., born […], 2011, is First Nation and identification of a First Nation community in the midst of the trial of a Status Review application. The trial of the Status Review application is to determine whether the child should be placed in the extended care of the agency, or returned to the care of his father, A.M. (The Status Review will also determine whether this child’s sibling, A., aged nine, is placed in the custody of her maternal grandmother K.R., or returned to the care of her father, Mr. A.M.). The OCL is supporting the father’s plan to have both children returned to his care.
The mother of the child J. is T.H. She did not participate in the litigation at either the Protection Application stage or this proceeding. Service of the pleadings of both proceedings upon Ms. T.H. was dispensed with.
The mother of the child A. was Ka.R. Ms. Ka.R. died in early January 2025.
The Order under review was made on January 23, 2023. It included findings that J. is not First Nation and does not have a First Nation community. It provided that the child A. is First Nation, and her First Nation community is the Algonquins of Ontario Consultation Office. This Order was premised on a Statement of Agreed Fact signed by the Applicant agency, Mr. A.M., and his counsel at the time. The OCL had not been appointed as of that date. The OCL was appointed on May 9, 2023, at the time this Status Review application was commenced.
The OCL did not identify the issue of whether J. is First Nations at the Trial Management conference, or at any step prior to the trial. The OCL did not make an Opening Statement. The Respondent father did not address this issue in his Opening Statement. The issue was raised for the first time early on the third day of trial, after the Applicant and the maternal grandmother had closed their respective cases. It was raised by the OCL at the outset of her cross examination of the Respondent father, when it was suggested to him that the child J. is First Nation and has a Mi’kmaq First Nation community.
The court then suspended the trial of the Status Review. The OCL was ordered to commence an Application to set aside the prior Order regarding J.’s identity and community, to be made returnable the following day, at which time the court would embark on a trial of the issue. The OCL’s first request for adjournment of the trial for 14 days was dismissed.
The OCL then attempted to file an affidavit from the child himself. The court declined to accept this affidavit on the basis that it was not necessary as the evidence was readily available from agency workers. It would also create a risk of the child being called for cross examination. The matter was stood down for several hours and the OCL was invited to recall agency workers. The OCL did not do so, and the matter was put over to the next day.
The OCL then appointed a clinician to interview J. and provide evidence about his self-identification. On the morning of the fourth day, the OCL sought to have this individual testify. This was opposed by the Applicant. The court ruled that necessity was made out on the basis of its earlier ruling. A voir dire was then commenced on the sole issue of threshold reliability. Ultimately the evidence was accepted.
This enterprise consumed much of the fourth day of trial.
On the fifth day, the OCL renewed its request for adjournment, then seeking an adjournment of 30 days, for the purpose of pursuing further consultation with J. The OCL said this request was being advanced because it had received further information. The OCL was initially hesitant to disclose this information. The court insisted on receiving some evidence about this “information” before ruling on the motion for adjournment.
The OCL would not identify, let alone call the witness who was the source of the information. Ultimately, the Applicant recalled the family service worker, Alicia Braid. After learning of the issue mid-trial, Ms. Braid had renewed inquiries about J.’s possible First Nation identity. In doing so she was able to contact one M.H., J.’s maternal grandmother. Ms. Braid testified that Ms. M.H. told her that her family is not indigenous. She went on to say that Ms. M.H. stated that, A.M. (the father) is, “spinning his own narrative” and had asked her to contact J.’s lawyer to say he is Indigenous. Ms. M.H. went on to say that the father had commented that, “CAS can’t take Native children”.
Neither the OCL nor the father’s counsel called the father to testify about the basis of J.’s First Nation identity.
The OCL objected to the use of this evidence on the issue itself, given that it was hearsay. The matter was again stood down for the OCL to try to speak directly to Ms. M.H. or for any party to call Ms. M.H. None of the parties were prepared to call Ms. M.H. Accordingly, the evidence was not accepted for the truth of the content on the issue of J.’s First Nation status.
While this information may not be admitted for the truth of its content, it is clearly new information that should have triggered a reassessment by the OCL and father of their position. There was absolutely no indication that it did.
Prior to submissions on the issue, the Applicant filed a concise book of authorities of two cases. The OCL filed a book of authorities comprising 800 pages. Many if not most of the cases had no practical applicability to the issue at hand.
In closing submissions, the OCL vacillated in its position on the relevant law. Although at some points the OCL acknowledged the applicability of the seminal cases on the point, at other times the OCL asserted that J.’s self-identification alone was sufficient for the change in findings. OCL counsel declined to answer some of the court’s questions.
At no point during the hearing of the substantive issue was a clear explanation provided for why the OCL chose to raise the issue in the middle of the trial. In costs submissions, the OCL says that counsel, “assumed a finding had been made identifying the child ‘J.’ as an FNIM child because the Society records indicated J. was Indigenous and they treated him as an Indigenous child in their care”.
Ultimately, the OCL motion was dismissed in entirety. A second, amended Notice of Motion seeking to re-address the First Nation community of the second child was not accepted by the court because it was premature. The reason it was premature was because the OCL was unable to say if the noted First Nation has been designated by the Minister.
The relevant law on the issue of costs is as follows:
The presumption that a successful party is entitled to a contribution to their costs set out at Rule 24 of the Family Law Rules does not apply to a government agency, such as the OCL. Neither does it apply in child protection proceedings.
One of the earliest cases in which the OCL was ordered to pay costs was that of Children's Aid Society of the City of St. Thomas and County of Elgin v. L. S., 2004 CanLII 19361 (ON CJ). In that case, all parties but the OCL had signed a Statement of Agreed Facts prior to the commencement of the hearing. The court found that proceeding on that basis would have required only a half day hearing. The OCL however forced the matter on to a six-day trial.
The court found that the OCL had failed to assist the court in determining the issues. The child’s counsel was remiss in not being mindful of her obligation to assist the court in fulfilling the primary objective of the Family Law Rules. She wasted valuable court time and resources. As a result of her conduct, other cases could not be heard.
The OCL was ordered to pay costs on a “full recovery’” basis for five and one-half days of the hearing to the society, the mother and the father.
At paragraphs 53 and 54 of that decision, Justice Schnall succinctly set out the public policy underlining why the OCL must not be immune to costs:
“A sense of immunity from costs may blind or desensitize a party or non-party litigant to the fact that other litigants are incurring costs and expenses to be involved in the court process. Immunity from costs could result in lack of accountability to the court process.
No participant in litigation should have carte blanche to pursue litigation that has no focus and no evidentiary basis, without running the risk of being held accountable for wasting time and money and an order to pay compensatory costs to indemnify the other litigants.”
In Eustace v. Eustace (2018) O.J. No 2168, the Ontario Divisional Court considered when costs can be ordered against the OCL. It instructed that courts should do so sparingly and with caution. However, where the OCL has acted in bad faith, costs should be awarded against it. Costs may also be ordered against the OCL in exceptional circumstances where its actions fall short of bad faith, but it engaged in patently unreasonable, unfair or indefensible conduct that exceeded its statutory mandate or had a significantly deleterious impact on the litigation.
Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality.
There is a body of jurisprudence that emphasizes that courts should be reluctant to impose costs on parents in a child protection proceeding. Parents in such proceedings are defending Charter protected rights. They should not be subject to the risk of financial penalty for doing so. I conclude that parents should only be ordered to pay costs in a child protection matter in exceptional circumstances. This might include a situation of bad faith.
My analysis of this matter is as follows:
The OCL conducted itself in an unreasonable fashion in relation to this issue. It was not reasonable for counsel to “assume” a finding on this important issue. The OCL would have been in receipt of three separate sets of pleadings from the Applicant agency, being the original Status Review application, the amended Status Review application and the amended, amended Status Review application. Each of these documents identified the child J. as not being First Nation and having no First Nation community. At no time was a First Nation community noted as a party on the style of cause. No First Nation community was ever served.
Presumably, as part of its due diligence in assuming representation of the child, the OCL would have reviewed all prior court orders, including that of January 23, 2023. Had it done so, the OCL would have been able to address this issue long before the commencement of trial.
As the OCL points out, the Respondent father in his Answer and plan of care to the Status Review application did describe the child as First nation and having a Mi’kmaq community. That should have triggered the OCL to make inquiries, which would have avoided this situation.
There was no real need to call the clinician to provide testimony of the child’s self-identification as Mi’kmaq, not once but twice. The agency records already reflected this and the child service worker could have provided evidence at firsthand about his self-identification. No one opposed the assertion that J. believes he is First Nation and of Mi’kmaq heritage.
The OCL persisted in its case even when it became clear that the only basis for J.’s self-identification was the fact that his father had told him his mother was First nation and Mi’kmaq and therefore J. was too. None of the required credible and reliable evidence was tendered.
The submission of 800 pages of largely irrelevant caselaw was particularly unreasonable.
All of these decisions resulted in the loss of three- and one-half days of trial. What makes this particularly troublesome is the fact that the OCL had asserted that her young client was worried about the trial and its outcome. The determination of those important issues was unnecessarily delayed by the OCL’s conduct.
As in CAS City of St. Thomas and county of Elgin v. L.S. supra, the OCL failed in its duty to assist the court in pursuing the paramount purpose of the Rules. Time and expense were wasted through this fruitless endeavour.
At no point as the evidence developed did the OCL reassess its case. The OCL has entered an email counsel received from agency counsel on March 25, 2025. It confirms the agency worker’s call with the maternal grandmother Ms. M.H. the day prior. It says in part:
“The maternal grandmother advised that Mr. A.M. had called her just the other night asking about the issue of identification. Ms. M.H. told Mr. A.M. that her family does not have Indigenous heritage and has repeatedly told Mr. A.M. that their family does not have it. She advises that she has been telling Mr. A.M. since J. was four months old that their family does not have Indigenous ancestry (from the very first opening with a children’s aid society).”
At no point after receiving new information did the OCL reassess its case. Instead, the OCL sought a further adjournment to again interview the child. It is difficult to see how further interviews would be of assistance. Clearly the child self-identifies as Indigenous, but he does so based only on his father’s assertions.
It is significant that the OCL did not call the very witness that identified this child as First nation and who would be best placed to testify about this matter: namely the father who was the source of the information.
Even in dealing with submissions for costs, the OCL took an unfocused and inefficient approach. The OCL first flied a Book of Authorities, and then sought to file a new Book of Authorities after the first date. By that point it had advised counsel that it would not be relying on the first Book of Authorities. No consent by other parties was initially provided with this new filing. This necessitated a Form 14b motion by the OCL to secure direction by the court.
As in CAS City of St. Thomas, the approach of the OCL to this particular issue had no focus and no evidentiary basis.
In summary, I have concluded that this is an exceptional case where the OCL has conducted itself in a patently unreasonable and indefensible manner. This approach had a significantly deleterious effect on the litigation and more importantly, on the children whose uncertain situation has been prolonged. The OCL should be liable for the costs as a result of its conduct.
With respect to the father, he adopted a similarly unreasonable approach to this issue. He had signed a Statement of Agreed Facts supporting statutory findings that J. was not First Nation and had no First Nation community. He did not seek to set this aside at any point. He did not identify this as an issue at the Trial Management Conference. He did not mention any First Nation identification for J. in his evidence in chief. He too would have had the benefit of three different sets of pleadings that made it clear that J. was identified as non-Indigenous and without a First Nation community.
It is clear however that at all times during this proceeding, the OCL took the lead and the father somewhat passively, followed. It was the OCL who raised the issue. It is not clear that the father would have even had notice that the OCL was planning to raise the issue before this was done.
By far the bulk of the time and expense that was wasted was the result of the conduct of the OCL. The claim for costs against the father was withdrawn. Had costs against the father been pursued, I would not have found that the father’s conduct was so indefensible as to meet the standard to award costs against a parent in a child protection proceeding.
The exceptional degree of unreasonableness on the part of the OCL merits the award of a higher quantum of costs. I accept the Applicant’s submission that the award should be on a full recovery basis at the Legal Aid rate for a total of $4,061.10. In addition, the Applicant seeks its costs for preparation of the costs argument in the amount of $676.85.
Order to go-
The OCL shall pay costs of the trial of an issue to the Child and Family Services of Grand Erie in the fixed amount of $4,737.95.
The claim for costs against the OCL and Respondent father initially advanced by the maternal grandmother shall be marked as withdrawn.
Released: July 7, 2025
Signed: Justice K.A. Baker