Court File and Parties
[Indexed as: Children's Aid Society of Hamilton-Wentworth v. R. (S.)]
CHILDREN'S AID SOCIETY OF HAMILTON-WENTWORTH (Applicant / Responding Party) and S. R. (Respondent / Moving Party)
Ontario Divisional Court
Whitten J.
Heard: June 24, 2003
Judgment: July 21, 2003
Mr. David Feliciant for Applicant
Ms. Carole Curtis, Ms. Victoria Starr for Respondent
Reasons for Decision
1The child who is the subject of these proceedings was born July 10, 1996. Approximately fifteen months later, the parents separated. The child remained with the mother as the primary care giver. In June 7, 1997 the father initiated a custody and access application and was able, on consent, to obtain unsupervised access. It was shortly after that access commenced that allegations of sexual abuse of the child, by the father surfaced. As is the case with such allegations access was varied to being supervised access and then suspended. The Children's Aid Society became involved and an assessment was conducted by the Child Advocacy and Assessment Program. That assessment was by a multi-disciplinary team consisting of a psychiatrist, a psychiatry resident, pediatrician, pediatric nurse and child life specialist. The team concluded that there was no evidence of sexual abuse of the child, by the father, or anyone else. The team found the mother to be uncompromising with respect to the abuse issue. The mother believed that psychotherapy and other interventions were necessary for the child. Another psychiatrist was of the view that the mother fit the profile of a mother who makes false allegations of sexual abuse. Some of the mother's allegations with respect to the father during his supervised access appeared both bizarre and physically impossible.
2The mother was relentless in taking the child for further therapeutic intervention which focused on the alleged abuse. Consequently, the Society in the end of July, 2000 commenced a Protection Application. The Society obtained a temporary order from Mr. Justice Czutrin November 1, 2000, placing the child in the care of the mother subject to the supervision of the Society, with the proviso that the mother not take the child to any counselling. Justice Czutrin appointed a psychiatrist to assess the mother. That psychiatrist concluded that the mother met the criteria for border-line personality disorder, and that there were both short and long term risks to the child in her care. In March 2001, the child was apprehended and at a temporary hearing, May 15, 2001, Justice Czutrin ruled that he was satisfied that the Society had met the applicable onus and that the child should remain in care. The same psychiatrist who had assessed the mother, assessed the father and found that he did not meet any of the DSM-IV psychiatric disorders. In December 2001, the Child Advocacy Assessment Program updated their previous assessments and concluded that the parenting by the mother was detrimental to the child. Consequently, on December 11, 2001 the Society commenced an amended Protection Application seeking Crown Ward-ship with no access for the purpose of adoption.
3Therefore, it would appear that at trial the pivotal issue would be the mental health of the mother and the consequential impact upon the wellbeing of the child.
4It should be noted, that en-route to trial, case management conferences had created various time lines with respect to production by the Society of disclosure and other matters. There were delays occasioned by the failure of the Society to satisfy these time lines.
5The trial lasted ten weeks. It involved twenty-nine witnesses of whom eleven were experts. Justice Genessee described the trial as long and arduous. Counsel representing the mother moved after the completion of the case for the Society for a directed verdict. This application was not successful, and the mother was put to her election as to the calling of evidence. The mother testified for five days:
6Justice Genessee ultimately concluded that the father had sexually abused the child, that the steps taken by the mother were appropriate and reasonable and that based on expert evidence, accepted by the jurist, the mother did not suffer from a personality disorder. That result was a better result than an offer filed on behalf of the mother before the trial.
7On March 24, 2003, Justice Genessee decided with respect to costs of the proceedings that the mother would not receive costs with respect to the substantive issues, but would with respect to procedural issues. As previously mentioned, there had been procedural failing by the Society which resulted in extra costs to the mother both before and during the trial.
The Application for Leave to Appeal
8Counsel on behalf of the mother moves before this court as a single judge of the Divisional Court, pursuant to section 133(b) of The Courts of Justice Act, for leave to appeal the March 24, 2003 cost decision of Justice Genessee. It is argued that: 1) the trial judge misinterpreted the interplay between Rules 18(14) and 24(3) of the Family Law Rules, and that 2) the trial judge erred on the basis of the appropriate tests in limiting the costs of the mother to procedural matters (in other words, costs should have been awarded for substantive matters as well).
The Law Applicable to a Leave to Appeal a Decision With Respect to Costs
9Some of the base law provided, originates from a time when pursuant to section 27 of the Judicature Act, the application was made to either the original jurist who had made the decision or another member of that court. The phraseology employed in these early decisions recommend that the application be approached with caution. The power to grant leave to appeal is spoken of as being exercised "sparingly. . .only in the very obvious cases". (ref. Axelrod v. Beth Ja-cob, [1943] O.W.N. 80 (Ont. H.C.)) Urquhart J.
10This cautious note no doubt existed, and continues to exist out of a respect for the first hand experience of the trial judge. The trial judge observes the witnesses, both expert and lay. This is an experience which goes beyond the actual words transcribed. Legal texts and precedent talk of the demeanour of a witness. In vernacular terms, the body language, intonation and emotional tone of a witness contribute to the impression formed by the presiding jurist. This bigger picture as it were, is rarely communicated in a transcript. It is from this vantage point that the jurist makes factual findings. Therefore, it is not always possible for a reviewing jurist to fully appreciate all the reasons that existed behind the original exercise of discretion. (ref. Bondy v. Bondy, 1978 CarswellOnt 259, 4 R.F.L. (2d) 285, 6 C.P.C. 117 (Ont. H.C.))
11A discretion is essentially the power to make a decision as one sees fit. How- ever, it must be exercised judicially, namely; it must be exercised fairly based on the facts of the particular case applying appropriate principles. Given the parameters of this discretion, leave to appeal will be granted if; a) the discretion is not exercised on the facts of the case, b) if the discretion is exercised on facts wholly unconnected with the cause of action, or c) the judgment has proceeded on some erroneous principle of law. (ref. Henderson v. Laframboise (1930), 65 O.L.R. 610, [1930] 4 D.L.R. 273 (Ont. C.A.)).
12The evidentiary burden upon the party seeking leave to appeal, no doubt given the respect for the vantage point of the trial judge, is described as a "heavy onus" requiring "strong grounds". (ref. Ventin v. Ferguson, [1995] O.J. No. 2789 (Ont. Div. Ct.) per Sills J.)
The Cost Judgment
13As was stated previously, Justice Genessee found that the child was not a child in need of protection and consequently the child was returned to her mother.
14The trial judge described the matter as a difficult case involving 29 witnesses (11 of whom were experts). Ten weeks were required for the trial.
15The relevant questions on the issue of costs were; 1) how does a court exercise its discretion under section 24(3) of the Family Law Rules in the context of a protection hearing commenced by the Children's Aid Society?, 2) how is section 18(14) of the Family Law Rules applicable?, and 3) what about procedural costs?.
16Section 131 of the Courts of Justice Act describes the discretion of a judge in matters of costs. However, in family matters Rule 24 of the Family Law Rules provides a road map.
17The jurist quotes from Children's Aid Society of Ottawa-Carleton v. V. [2001 CarswellOnt 1991 (Ont. S.C.J.)] as to the rationale of Rule 24(2). Basically, given the mandate of a Children's Aid Society, if a society reasonably believes a child is in need of protection, it should not be dissuaded from exercising its mandate by cost considerations. By the same token, parents of children in protection matters share the same immunity from the presumption of a cost entitlement to the successful party. (As an aside, it is difficult to think of a party in a protection hearing as being successful or "winning" as possibly exists in civil contexts, it is more a matter of being the recipient of a decision or judgment in one's favour).
18It is with this philosophical backdrop that the jurist commences her analysis. Rule 24(8) provides that if a party acts in bad faith, the opposite party should receive costs on a full recovery basis. Justice Genessee finds as a fact that the society, in the matter at hand, did not act in bad faith.
19The jurist also found as a fact, that the mother had filed an offer which met the criteria under Rule 18(14). This rule deals with both entitlement and qualification. Obviously, Rule 18(14) exists to promote settlement. Her Honour states that the rule provides for "near" automatic costs consequences but not necessarily so, because of the existence of the wording "unless the court orders otherwise". This phraseology caused the jurist to reflect on Rule 24(2).
20Her Honour agreed with the agency that it would be dangerous to automatically award costs to parents who did as well as or better than an offer they had filed in a protection hearing. To do so would render Section 24(2) "meaningless" and the decisions which recognized the unique mandate of the society, vacuous. Again, the same argument could be used against parents in protection hearing. Consequently, Justice Genessee concludes Rule 18(14) has to be interpreted differently in Children's Aid Society eases.
21Having stated the above, Her Honour believed that the existence of an offer placed a greater onus on the agency to establish that the facts uncovered in their investigation compelled the agency to pursue a finding of protection.
22Justice Genessee refers to the case law submitted by both sides with respect to when costs should be imposed against an agency. The cases all speak in similar terms, whether the agency action was indefensible, exceptional, lacking in good judgment, lacking due diligence and reason and abusive of power. As Justice Dunn noted in B. (D.) v. Children's Aid Society of (Durham Region), 1987 CarswellOnt 459 (Ont. Fam. Ct.), it comes down to "would the society be perceived by ordinary persons as having acted fairly?" Her Honour concludes, that whatever specific standard one applies, her factual finding remains the same and she states "I am satisfied that the C.A.S. went to trial with a defensible and fair position to the man in the street after considering a fair and defensible position." This was, in her opinion, a case of experts. She disagreed with the agency case but the agency had gone to trial based on the expert opinion they had received, and the endorsement of Justice Czutrin. The agency had a solid theory to go to trial with, but that position was rejected by Her Honour. However, there were costs caused by the procedural failings of the society. Her Honour found that the case law, particularly Children's Aid Society of Hamilton-Wentworth v. F. (A.) [2001 CarswellOnt 253 (Ont. S.C.J.)] provided that Rule 24(2) did not render the society immune to cost consequences for those procedural failings. Specifically, the agency had not complied with orders of the court with respect to time lines and consequently, the mother experienced extra costs both before and during trial. These are failings which required censure and accordingly the society was liable for costs on the procedural issues.
Analysis
23The trial judge in this rather protracted litigation made several significant observations and findings.
24As was stated, Her Honour perceived the matter to be essentially an expert witness case, focused on the alleged mental health issues of the mother. The respective motions record filed bear out that observation. Many of the reports are quite detailed and authorative The expert opinions were polarized. As soon as the mental health issue was decided, the analysis by the trial judge of the ultimate issue: namely, whether the child was in need of protection would follow like the actions of tumblers in a lock mechanism. In other words, if the diagnosis of the experts both agreed upon by the parties and appointed by the court was correct, there was a protection issue. This would be so as to the diagnosed mental health condition of the mother was such that it would contribute to her being pre-occupied with the possibility of the child being sexually abused by the father. Logically, that presumption would work against the best interests of the child. Likewise, if the original analysis was incorrect with respect to the mental health of the mother, then the prospect of a sexual assault moves from the realm of possibility to that of reality and the actions of the mother become justifiable. It was this latter scenario that became the factual finding made by Her Honour. Given the way evidence evolved in this case, it was unlikely that finding would be made without a trial. It was not a resolvable case, the society to do so short of a trial would be perceived as irresponsible in the face of the professional opinions that existed.
25In her discussion with respect to the cost consequences, Her Honour had to make an initial finding as to the good or bad faith of the society in proceeding with this matter to trial. Rule 24(8) mandates that bad faith actions of a party required immediate payment of costs on a full indemnity basis. This is a rule which appears to trump the exemption from the presumption contained in Rule 24(2) and is not inconsistent with Rule 18(14). Her Honour mindful of the jurisprudence with respect to when costs are imposed against Children's Aid Societies found that the society acted in good faith, in other words there was a solid case to go forward. This finding or opinion must be given substantial respect. It is not an opinion which on its face appears patently unreasonable, especially so in a case with polarized expert opinions. It is an opinion which can be founded on the facts of the case. A jurist considering a leave application must be extremely reticent to second guess this factual determination.
26The presence or absence of had faith in the prosecution of the matter is key to the objective determination of fairness and reasonableness contemplated by such authorities B. (D.) v. Children's Aid Society of (Durham Region), 1987 CarswellOnt 459 (Ont. Fam. Ct.). The presence of had faith would invariably mean that the objective test had been violated and that the society, although exempt from the presumption in Rule 24(2) would be required to pay costs. The absence of bad faith does not necessarily mean that the objective standard was satisfied; as there are other components to the test, involving negligence and fairness.
27In the latter regard, counsel has advanced that the society investigation fell short or was deficient with respect to a) whether or not the child had been sexually assaulted by the father, b) whether the mother suffered from any form of mental illness, c) and when or not there were any real protection concerns with respect to the child. These are all issues that would have been touched upon during the trial proper. It is apparent that the advice or assessments that founded the actions of the society were not all in house. The Child Abuse Unit of the Hamilton-Wentworth Regional Police Force investigated the matter (ref: para. 4.11 of the Judgment of Genessee J.). The father through counsel had agreed to both phallometric testing and a psychiatric assessment at the Clark Institute of Psychiatry (ref. para.4.15 of the Judgment of Genessee J.). An assessment was conducted and updated by the Child Advocacy and Assessment Program. Dr. Benoit, a court appointed psychiatrist, prepared an extensive and detailed report. These are the sources of information which are ostensibly credible and no doubt contributed to the agency's belief that there was a live protection issue. No doubt the cumulative effect of such information would work against the acceptance of this offer put forth by the mother. The fact that Justice Genessee ultimately did not agree with these opinions does not detract from their apparent validity.
28Justice Genesee does refer to the prevailing caselaw with respect to the imposition of costs against an agency. Her comments in that regard suggest a bottom line of objective fairness. The comment "whatever specific standard" is not as is suggested a disregard for the applicable standard but a recognition of a base test reflected in a variety of expressions. Her Honour applies that base test to conclude "I am satisfied that the C.A.S. went to trial with a defensible and fair position to the man in the street after considering a fair and defensible position." This comment may not specifically refer to the nature of the investigation as such, but can be deemed to encompass that consideration. Again, given the ostensibly professional opinions received from sources outside of the agency itself, this factual finding is entirely plausible and consistent with the facts of the investigation. It should be noted that this finding in itself does not raise an evi-dentiary burden for the successful party seeking costs. It is a factual finding that the jurist is entitled to make and indeed must make.
29The above findings of a lack of bad faith and objectively reasonable and fair approach to the proceedings are significant to the analysis Justice Genessee engages in with respect to the interplay of Rules 24(2) and 18(14). Superficially, these rules may appear at odds, however, the first approach is to determine whether they can be harmonized. Rule 18(14) does sound rather automatic, but there is the phraseology "unless the court orders otherwise", (which creates a discretion for the court). Rule 24(2) does appear to have a social policy rationale for excluding protection hearings from the usual presumption that the successful party obtains the costs. Her Honour's reasoning in this regard is well reasoned and sensible. If the agency has acted in a fashion which would not attract costs according to the caselaw, surely that would be considered by a court in exercising its discretion with respect to the applicability of the rule as to offers. Again, it is a reasonable exercise of discretion in the case at hand.
30Justice Genessee distinguished between procedural and substantive aspects of this proceeding. The bulk of her judgment deals with the liability of the agency with respect to the substantive issues. Her separation of the procedural conduct by the agency is not unreasonable. There were delays which were costly to the mother. This is procedural conduct which was not found to be an exercise of "bad faith", but was nevertheless censorable because of the waste of time and resources. It is open to counsel for the mother to show how these delays contributed to an elongated trial. The conduct of the agency, relative to the procedure, is separate and distinct from the conduct of the agency with respect to the substantive issues. It is not inconsistent or illogical to so differentiate. It is entirely possible that a party may achieve success on the substantive issues in a trial, and still be answerable for procedural issues; for example; failure to answer undertakings.
31Therefore, given that the factual determinations made by Justice Genessee are reasonable and defendable given the particular circumstances of this protection hearing, the analysis of the interplay of Rules 24(2) and 18(14) is equally reasonable, and the distinction between substantive and procedural issues is feasible, the judgment on costs should be respected. There is no reason to doubt the exercise of discretion by the jurist. Accordingly, the application for leave is dismissed. Counsel may address the issue of costs of this application either in writing or schedule an appearance before the court within 60 days of this judgment.
Application dismissed.