COURT FILE NO.: 109/98

DATE: 20050406

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION

R. John Harper, and Donna A. Wowk, counsel on behalf of the Applicant

Applicant/Appellant in Appeal

• and -

R.DeG.

Michael Weissenborn, counsel on behalf of the Respondent

Respondent/Respondent in Appeal

HEARD: March 10, 2005 (at Hamilton)

ON APPEAL FROM A DECISION OF QUINN J. DATED FEBRUARY 10, 2004

LOFCHIK J.

1This is a motion brought by the applicant, the Children’s Aid Society of the Niagara Region, for leave to appeal the final Order of J.W. Quinn, J., dated February 10, 2004 wherein he ordered the applicant Society (“the Society”) to pay the costs of the respondent, R.DeG., in Child Protection and Status Review Proceedings for the period prior to June 9, 2003 on a full recovery basis.

2The Order was made at the conclusion of a Status Review Application commenced by the Society on February 28, 2003 and heard by Quinn J. on various dates in July and August, 2003. The significance of the date of June 9, 2003 is that it was on this date that the section 54 Assessment Report of Dr. Daniel T. Ashbourne, recommending that if the parties were unsuccessful in resolving their differences, the children should be placed with the foster parents rather than the respondent, R.DeG., was delivered to the parties causing the Society to change its position from supporting the custody application of the respondent to supporting the adoption application of the foster parents of the two children in question.

3The Status Review Application involved two children who were previously the subject of a Protection Application (K.1) and a Status Review Application (K.2) which concluded with a final Order made by Scott J., on March 28, 2002. The respondent, R.DeG. was the stepfather of the aforementioned children and a party to the proceedings. The Order of March 28, 2002 provided for the placement of the children with R.DeG., subject to a Supervision Order. The applicant Society had supported R.DeG. in seeking this Order. The respondent, R.DeG. was at the March 28, 2002 hearing, represented by counsel.

4In the course of the Status Review Hearing commenced by the applicant on February 28, 2003, the applicant and former foster parents of the children agreed to an adoption plan put forward by the former foster parents. As stated above the change of position of the Society from supporting R.DeG.’s custody application to supporting the foster parents adoption application was brought about as a result of the recommendations contained in the Report of Dr. Daniel T. Ashbourne.

5At this juncture the former foster parents were committed to ongoing access between the children, the respondent and the half-siblings of the children. The Society therefore withdrew its support of the respondent, R.DeG.’s position, and supported an adoption plan of the former foster parents with an Access Order in favour of DeG., to survive adoption.

6The respondent withdrew from the settlement discussions and the trial continued as a result of the respondent’s opposition to the joint position of the applicant Society and the former foster parents. During final submissions the respondent withdrew his opposition and agreed to an order for adoption by the former foster parents in accordance with the Minutes of Settlement between the foster parents and the Society.

7In reaching his decision on costs, Quinn J. found the following facts:

1. That the applicant Society withheld from the respondent and the foster parents the contents of reports prepared by Dr. Nancy M.E. Johnston and Annette Kussin, recommending that in light of the fact that the children had formed an attachment to the foster parents it was in the best interests of the children that they remain with the foster parents;

2. In 2002, the Society knew or ought to have known that the children were primarily attached to the foster parents;

3. Despite this the Society supported the plan of the step father;

4. This, in turn, produced a status review hearing in which the step father thought he had the backing of the Society;

5. In supporting the plan of the step father, the Society ignored professional advice to the contrary and involved the step father in an expensive trial in which he had no reasonable prospect for success;

6. Therefore the Society did not treat the stepfather fairly.

8The Learned Judge held that ordinary persons would regard as unfair the Society’s actions in supporting the stepfather’s plan of care in the face of the opinion of Dr. Johnston and Ms. Kussin.

9At the hearing of the application for leave to appeal, on consent of the parties, I considered fresh evidence, namely, the transcript of the proceedings before Matheson J. on November 6 and 7, 2001 wherein the former foster parents unsuccessfully sought to be added as parties to the proceedings. It was apparent from that transcript that both the foster parents and R.DeG. were in possession of Dr. Johnston’s report.

10The law to be applied in family law cases with respect to costs is as follows: Section 131 of the Courts of Justice Act gives the court a broad discretion to make an award of costs:

Subject to the provision of an Act or rules of the court, the cost of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.

11In family matters, Rule 24 of the Family Law Rules provides a road map for the court to follow in considering a claim for costs. The relevant provisions of Rule 24 are 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 court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful.

(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

12The test to be applied in respect of an application for leave to appeal costs is as follows:

(a) The case law clearly indicates that awards of costs, while within judicial discretion, can be reviewed by an appellate court on the basis that they were made, inter alia, on wrong principles, on a misapprehension of significant facts or in a non-judicial manner.

The party R.B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, para. 152

(b) seeking leave to appeal a decision regarding costs has a heavy onus requiring strong grounds.

Children’s Aid Society of Hamilton-Wentworth v. S.R., [2003] O.J. No. 3075

(c) Having regard to 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) the discretion is exercised on facts wholly unconnected with the cause of action; or

(c) the judgment has proceeded on some erroneous principle.

Children’s Aid Society of Hamilton v. S.R. supra

13In my view the test has been met in this case and leave to appeal the award of costs of J.W. Quinn, J. in his Order of February 10, 2004 ought to be granted for the following reasons:

(i) There is reason to believe that the Learned Judge exercised his discretion on a misapprehension of the facts, namely, that the Society withheld the reports of Dr. Johnston and Annette Kussin from the respondent during the original proceedings resulting in and prior to the Order of Scott J., dated March 28, 2002, when in fact it would appear that these reports were made available to the respondent and his counsel in the course of such proceedings well before the hearing before Scott J. There is also reason to believe that the Learned Judge proceeded on an erroneous factual basis in concluding that the continued pursuit by the respondent of the custody of his children was the result of the Society withholding these Reports from him rather than his determination to obtain custody.

(ii) If in fact the respondent and counsel were aware of the opinions of Dr. Johnston and Annette Kussin and the Learned Judge awarded costs because these Reports were not brought to the attention of Scott J., at the time of the making of her Order of March 28, 2002, there is reason to believe that the Learned Judge erred in principle in ordering the Society to pay the costs of the respondent, who was aware of the said reports and also withheld them from Scott J., because it was in his best interest to do so.

(iii) There is reason to believe that the Learned Judge erred in law in holding that a Status Review Application, for costs purposes under Rule 24 of the Family Law Rules, may be treated as an extension of a Protection Application such that both applications are then part of the same “case” and that it was proper for pre-March, 2003 behaviour to be considered in awarding costs under Rule 24(4) and (5) of the Family Law Rules.

(iv) There is reason to doubt the correctness of the decision of the Learned Judge that the respondent stepfather is entitled to his costs against the Society because the Society acted unreasonably in supporting his plan of care for his two children as long as it did.

14Costs of this motion for leave to appeal are reserved to the panel hearing the appeal.