COURT FILE NO.: 664/04

DATE: 20050427

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

J. and E. B.

Kerry Gearin, for the Applicants

Applicants

• and -

CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO

Helen Murphy, for the Respondent

Respondent

Benotto J.

1The parties were before me on December 17, 2004 for an emergency judicial review. At issue was whether the two children in the applicants’ foster care would be removed from the home.

2I requested submissions in writing with respect to costs. The parties provided the submissions in February. I reserved my decision because I hoped (as did counsel) that a mediated resolution could be arrived at. That does not now seem possible. I therefore release my decision.

3The applicants (the foster parents) seek costs of some $30,000 to compensate them for their expenses in responding to the applications in the Ontario Court of Justice, the Superior Court of Justice and the Divisional Court. I was critical of the actions of the Catholic Children’s Aid in attempting to remove the children from the home (against their wishes) one week before Christmas. I found there was no emergency and ordered that the children would remain with the foster parents.

4The Children’s Aid Societies do not have immunity from costs simply because they act as protector of children. The discretion to deal with costs must be exercised in an attempt to deal justly with the case in the principles articulated by Justice Katarynych (Catholic Children’s Aid v. V.(S) and V.(A) court file C4290/99)

5Although, in my estimation, the Children’s Aid acted wrongly, I cannot say that there was bad faith or that the actions of the society were unfair or unreasonable in the circumstances. The concern of the Society was the protection of the child T.. I did not agree with the Society’s actions, but I am not persuaded that it should pay the legal costs of the foster parents.

Benotto J.