P.H., 2011 ONSC 69

NEWMARKET COURT FILE NO.: DC-10-00179-ML

DATE: 2011-01-05

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: CHILD AND FAMILY SERVICES FOR YORK REGION, Applicant (Respondent in Appeal)

AND:

P.H. (Applicant in Appeal) AND M.S., Respondents

BEFORE: The Honourable Mr. Justice J. McDermot

COUNSEL: Amelia M. James, for the Applicant (Respondent in Appeal)

P.H., Respondent (Applicant in Appeal) on his own behalf

HEARD: December 9, 2010

ENDORSEMENT

McDERMOT J.

[1] This is a motion for costs as against the Applicant Society (the Respondent in Appeal) brought by the Respondent (Applicant in Appeal), P.H.. The Applicant has brought a cross-motion pursuant to Rule 37.16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in order to prevent that Respondent from bringing any further motions in the proceeding without leave of the court.

BACKGROUND

[2] This proceeding was originally commenced in the Family Division of the Ontario Superior Court of Justice on March 7, 2007. The proceedings were commenced under the provisions of the Child and Family Services Act R.S.O. 1990, c. C.11 and involved the child of the Respondents, D.S. (as she then was known), born March 1, 2008. The child was apprehended at birth, and was in the care of the Society until final disposition as noted below. That child was made a Crown Ward without access by order of Justice Rogers dated December 8, 2008. The adoption of the child was finalized on June 22, 2010.

[3] The basis of the Society claim appeared to be based upon the previous involvement of the parties with the Toronto Children’s Aid Society, as well as M.S.’s severe developmental delays. There were a number of motions, court appearances and steps taken in the Family Court proceedings which I will attempt to summarize below:

(a) The Society brought a motion seeking to have the mother of the child, M.S., made a special party, which was returnable on March 22, 2007. The Society succeeded in this motion, and the Public Guardian and Trustee was appointed as counsel for M.S.;

(b) A Settlement Conference was held on November 20, 2007. The Society offered to make the child a Society Ward for a period of three months pending completion of Parenting Capacity Assessments, which offer was not accepted by the Respondents;

(c) Dr. Nitza Perlman completed a parenting capacity assessment in respect of M.S. in March, 2008. P.H. withdrew from that process prior to the report being completed. P.H. did so as a result of his perception that the assessment process was flawed. In particular, he complained of the fact that the MMPI test had notes on it from a previous assessment and the assessor did not allow P.H. to complete all 567 questions;

(d) On May 29, 2008, the Society argued a motion before Mr. Justice Nelson seeking to have P.H. declared to be a Special Party. That motion was dismissed;

(e) On September 9, 2008, a motion was argued before Mr. Justice Perkins. The Society sought disclosure of certain records held by third parties involved with the Respondents. P.H. brought certain claims for relief in those proceedings, including a correction of the name of the child on the Statement of Live Birth and other public records. According to the endorsement of Justice Perkins, “Costs not sought by successful parties today”;

(f) A motion for summary judgment was scheduled in this matter for November 20, 2008. On November 13, 2008, P.H. sought an adjournment of that motion. That adjournment request was denied;

(g) The parties argued a summary judgment motion before Justice Rogers on November 20, 2008. Apparently, P.H. left the courtroom prior to submissions being completed. Ultimately, by way of written reasons dated December 8, 2008, Madam Justice Rogers granted an order for Crown Wardship without access;

(h) The adoption in this matter was finalized on June 22, 2010; and

(i) On July 27, 2010, P.H. sought before this court to extend the time to appeal the order of Justice Rogers dated December 8, 2008. Mr. Justice Lauwers dismissed P.H.’s motion.

[4] P.H. now brings the within motion, stating that he is owed some costs. He states that he had made a number of offers to settle which, if accepted, would have resulted in the Crown Wardship order which was eventually obtained before Justice Rogers in December, 2008. It is his position that costs should be paid by the Society based upon Rule 24 of the Family Law Rules, O. Reg. 114/99.

COSTS ISSUE

[5] P.H. bases his claim for costs on three offers to settle that he says that he made throughout the proceedings. They are as follows:

(a) On April 30, 2007, P.H. filed an affidavit. On page 6 of this affidavit, there are a number of paragraphs listed under the heading “Respondent Final Summary and Offer:” On the next page,