Children's Aid Society of Ottawa v. S. and P.

Indexed as: S. (D.), Re

IN THE MATTER OF D.S. (born on 22 January 1987), T.P. (born on 3 October 1995), B.P. (born on 9 January 1997) and C.P. (born on 9 June 1998)

CHILDREN'S AID SOCIETY OF OTTAWA (Applicant) AND S. and P. (Respondents)

Ontario Divisional Court Then, Platana, Aston JJ. Heard: December 13, 2002 Judgment: March 12, 2003 Docket: Ottawa 01-DV-597

Counsel: Christine M. LaCasse for Applicant, Society Kenneth J. Webb for Respondent, father, P. Cheryl L. Hess for Respondent, mother, S. Lynn M. Keller for child, D.S.

Endorsement

[1] The father unsuccessfully appealed the trial decision in a protection proceeding under the Child and Family Services Act, R.S.O. 1990, c. C-11 (as amended). The mother, who adopted the position of the respondent children's aid society on the appeal, now seeks costs of the appeal on a substantial indemnity scale, fixed at $14,000. The children's aid society does not seek costs.

[2] The question of costs is governed by section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43 [as amended by S.O. 1991, c. 46] and rule 24 of the Family Law Rules, O. Reg. 114/99. Subrules 24(1) and (2) read as follows:

24. — (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(2) The presumption does not apply in a child protection case or to a party that is a government agency.

[3] The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a children's aid society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations. Parents, on the other hand, are generally insulated from claims for costs in such proceedings because when faced with state intervention in the care and upbringing of their children, they have a right to force the state to prove its case and should not be penalized in costs. See Children's Aid Society of Ottawa-Carleton v. V. (2001), 105 A.C.W.S. (3d) 885, [2001] O.J. No. 2147, [2001] O.T.C. 428, 2001 CarswellOnt 1991 (Ont. S.C.J.).

[4] In this case, the costs issue is not as between the children's aid society and a parent, but rather as between the two parents. Subrule 24(2) certainly shields the father from any costs which might be claimed by the society. The issue is whether it necessarily shields him from responsibility for the mother's costs. As between the father and the mother, the mother was "successful" because she supported the disposition of the trial judge which was upheld.

[5] However, the wording of subrule 24(2) is clear and unequivocal. The presumptive entitlement to costs "does not apply in a child protection case". The mother is not presumptively entitled to costs. There may be appropriate cases for costs awards as between the parents in a child protection case, but entitlement must be based on something more than merely the outcome of the case.

[6] In this case, the father's appeal raised genuine issues and was not devoid of merit, nor did he behave unreasonably in his capacity as a litigant on the appeal.

[7] No order as to costs.

Order accordingly.