Court File and Parties

Court File No.: 139/09 Released: 2009-10-14

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Re: CHILDREN AND FAMILY SERVICES FOR YORK REGION (Appellant) - and - H.C., C.S. and R.C. (Respondents on Appeal)

Before: Carnwath, Swinton and Low JJ.

Counsel: Amelia M. James for the Appellant David Miller and Elizabeth W. Mark for H.C. Tammy Law for C.S.

Heard at Toronto: in writing

COSTS ENDORSEMENT

[1] The parents, respondents in this appeal, each seek costs on a full indemnity basis against the Children and Family Services for York Region (“the Society”).

[2] While rule 24(1) of the Family Law Rules provides that there is a presumption that the successful party is entitled to the costs of an appeal, that presumption does not apply in a child protection case or to a party that is a government agency (rule 24(2)). Costs will be awarded against a children’s aid society where a reasonable person would conclude that the society acted unfairly or unreasonably in the course of the proceedings (see, for example, Children’s Aid Society of Sudbury and Manitoulin v. H. (J.), 2005 ONCJ 488, [2005] 4 C.N.L.R. 91 (O.C.J.) at para. 52).

[3] While the Society was successful on only one aspect of the appeal, we are not satisfied that a reasonable person would conclude that the Society acted unreasonably in pursuing the appeal or in its conduct of the appeal. The Society brought this appeal out of concern for the best interests of the child, who was clearly a child in need of protection. It obtained new evidence that led it to believe that the trial judge’s decision should not stand. Moreover, the Office of the Children’s Lawyer supported the Society’s arguments on appeal. In the circumstances, a reasonable person would not consider that the Society acted unfairly or unreasonably.

[4] While the respondents have made allegations of misconduct against the Society, these are not supported by the record. There is no evidence to suggest that the Society required supervised access for any reason other than its belief that supervision was necessary to ensure the wellbeing of the child.

[5] Therefore, no costs are awarded for the appeal.

Carnwath J. Swinton J. Low J.

Released: October , 2009