WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) IDEM: ORDER RE ADULT — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) IDEM — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Ontario Court of Justice
Date: May 30, 2017
Court File No.: C62187/13
Between:
Children's Aid Society of Toronto Applicant
— AND —
C.J.W. Respondent mother
S.P. Respondent father
Before: Justice Zisman
Heard by: Written submissions
Reasons for Judgment released on: May 30, 2017
Counsel
- Nicole Horowitz — counsel for the applicant society
- C.J.W. — respondent mother on her own behalf
- Evan Chan — counsel for the respondent father
- Eric del Junco and Elizabeth McCarty — counsel for the Office of the Children's Lawyer, legal representative for the child E.P.
- Esther Lenkinski — counsel for foster parents
Decision
Zisman, J.:
Introduction
[1] This is a decision regarding costs arising from my decision on a summary judgment motion, released on March 31, 2017, wherein I granted the order requested by the Children's Aid Society ("society") for an order for Crown wardship no access for all three children. The Office of the Children's Lawyer ("OCL") and both parents argued that there were triable issues.
[2] The OCL who were appointed to represent the older child E. took no position with respect to an order for Crown wardship, but it was their position that there was a genuine issue for trial with respect to access by E. to both of her parents and to her siblings.
[3] It was the position of the father that there was a triable issue with respect to the children being placed in his care but if the children were made Crown wards he also submitted that there was a triable issue with respect to access. The mother supported the position of the father.
[4] The foster parents who had participated on the motion to the limited extent of filing an affidavit and their counsel made brief submissions supporting the position of the society.
[5] Although the society initially sought an order of no access, after the OCL's submissions, the society consented to an order for sibling access as requested by the OCL. Accordingly, the society's summary judgment motion was granted, the children were made Crown wards without access to their parents but with access to each other and each child was the holder of such access.
[6] The foster parents seek costs only against the OCL on a full recovery basis in the amount of $29,615.92.
Position of the Parties
[7] It is the position of the foster parents that as the successful parties they are presumptively entitled to their costs.
[8] It is submitted that the OCL took an unreasonable position, exceeded their mandate, failed to properly inform the eldest child E. that the ultimate decision in this matter regarding whether or not she would have access rested with the court and was not her choice and that the OCL needlessly complicated the matter.
[9] It is further submitted that the OCL used this particular case to promote its own policy agenda for post-adoption access and as a result the foster parents were required to retain counsel and have counsel attend on the summary judgment motion and needlessly incurred significant fees.
[10] It is the position of the OCL that it has a duty to represent their child client E. and ensure that her position was before the court.
[11] Further, it is submitted that the presumption that the successful party is entitled to costs does not apply to the OCL and that the court must find exceptional circumstances to award costs against a government agency.
[12] It is further submitted that the court should also consider the reasonableness of the costs being requested in view of the fact that the foster parents were non-parties and their position was fully supported by the society. The Bill of Costs submitted does not account for any apportionment of costs and many of the general categories have little or no nexus to the position of the OCL.
[13] The other parties took no position with the request by the foster parents for costs against the OCL.
Applicable Legal Considerations with Respect to Costs Against a Government Agency
[14] The presumption that a successful party is entitled to costs, as set out in Family Law Rules subsection 24(1), does not apply in child protection proceedings or to a case involving a government agency.
[15] The court does have the discretion to order costs to or against a government agency in an appropriate case.
[16] These provisions are set out in subsection 24(1), (2) and (3) FLR as follows:
Successful Party Presumed Entitled to Costs
24(1) There is a presumption that a successful party is entitled to costs of a motion, enforcement, care or appeal.
No presumption in child protection case or if party is government agency
24(2) The presumption does not apply in a child protection case or to a party that is a government agency.
Court's discretion – costs for or against government agency
24(3) The court has a discretion to award costs to or against a party that is a government agency, whether it is successful or not.
[17] The issue of costs in child protection proceedings usually arises in the context of costs being sought against the society. There is a long line of cases that hold that a court should be cautious in awarding costs against a society when it is acting in accordance with its statutory duty to protect children and ensure children's well-being. It has been held that costs should only be awarded in exceptional circumstances and in cases where the society acted unfairly, negligently or without regard to its statutory mandate.[1]
[18] These same principles have been held to apply to the OCL in appropriate cases. In the case of Children's Aid Society of the City of St. Thomas and County of Elgin[2] Justice Schnall ordered that OCL counsel pay costs to the society and the parents and grandparents on a full recovery basis as OCL counsel took an unreasonable position, prolonged the litigation and resulted in a waste of time and caused substantial expense to the other parties. In that case there were exceptional circumstances as, despite the society and parents agreeing to a disposition, the OCL would not agree and forced a 6 day trial in which the OCL did not call any witnesses and simply used the trial as a fishing expedition in the hope of exposing some weakness in the society's plan of care. The court held that the tactics of OCL were ineffectual, time-consuming, unproductive and wasteful of the court's time and resources.
[19] However, where it is found that the OCL's conduct is responsible and the OCL represents a child in an appropriate fashion, no costs will be awarded, even if the position of the OCL was not successful.[3]
Application of Legal Principles to the Facts of This Case
Did OCL Exceed Its Mandate?
[20] Counsel for the foster parents takes the position that the OCL exceeded its mandate in taking a position that there was a triable issue with respect to access.
[21] There is considerable reference to the fact that portions of the clinical investigator's affidavit was struck as were two other affidavits. With respect to striking portions of the affidavits tendered by the OCL, I also did not rely on most of the affidavits of the foster parents due to the hearsay content. The fact that portions or affidavits or entire affidavits were found to be inadmissible or irrelevant does not equate with the OCL acting unreasonably.
[22] It is also submitted that the court found that the "conduct of the OCL and the material provided by Ms Noble were not only found to be very hurtful to E. but undermined her trust in her foster parents and therefore the conduct of the OCL was not in her best interests and clearly exceeded the mandate of the OCL." I quote this submission as it completely misstates my decision. I made no such finding. It was Ms Noble who expressed the opinion that the foster parents' position with respect to no access to the parents was hurtful to E. and undermined her trust in the foster parents.
Did OCL Properly Represent the Views and Preferences of the Child?
[23] It is also submitted that the OCL exceeded its mandate as the OCL was appointed to provide E.'s views and preferences with respect to access and the outcome of the adoption. It is submitted that the OCL did not balance their views about E.'s being open to being a Crown ward and being adopted with her need for stability and permanence and her wish to keep living with her brothers.
[24] However, there was also evidence that E. wished ongoing access to her parents and the OCL obligation, even if the court did not ultimately agree with that position, was to put that position before the court.
[25] In this context it is important to emphasize that the role of the OCL when appointed to represent a child pursuant to section 38 of the Child and Family Services Act, should not be to simply advise the court of the child's views and preferences but to take an active role in the litigation. It is not the role of child's counsel to then temper those views and preferences and take a position as to the child's best interests. In this case, E. wished contact with her parents and wished to remain with her brothers in the foster home. It was the role of the court to balance those competing wishes in the context of the law.
[26] I agree with the submissions of OCL of the importance of a child having an independent voice in child protection proceedings and the role that counsel can play. As stated by the Nova Scotia Supreme Court:[4]
Representation by counsel is consistent with Charter values and the need to balance a child's maturity with restrictions on Charter rights. Such an interpretation of the law is consistent with Canada's obligation under the United Nations Convention on the Rights of the Child.
[27] In view of the impact of a decision in a child protection proceeding especially when the society is proposing a permanent severance of a child's ties to her parents, Charter rights are engaged and child's counsel should not be dissuaded from responding to a summary judgment motion with being concerned about cost consequences if it is unsuccessful as long as their position is reasonable.
[28] It should also be noted that both parents also sought access but it is not being submitted that their position was unreasonable or attracts costs.
[29] It is also submitted by the foster parents that the OCL did not make it clear to E. that the ultimate "adoption decision" was up to the court and not to her. Again, this is a misstatement of the findings in the decision. I simply noted that the court had some concerns in reading Ms Noble's affidavit that she had not made it clear to E. that the decision was up to the court rather than to her. This related more to the style of how Ms Noble's affidavit was prepared rather than the content or the actual advice given to E.
[30] I accept the submissions of OCL that the details of any legal advice given to the child is subject to solicitor client privilege and therefore the court, the society and the foster parents do not know and should not know what advice counsel gave to E. I also agree that there was evidence before the court that although E. understood the position taken by the foster parents she still hoped she could have access and understood that if the court made the access order that she may not continue to reside with foster parents and with her brothers.
[31] It is also submitted by counsel for the foster parents that the OCL used this case to promote its own policy agenda with respect to the benefit of ongoing access. In the decision I did strike the affidavit of Patricia Convery as it related to the benefits of post-adoption access and the affidavit of Katharine Kavassalis as it related to the efforts of the OCL to meet with the foster parents to discuss and encourage post-adoption access. I found those affidavits reflected a philosophy and policy with respect to post-adoption access that was irrelevant to the narrow statutory test for access after a finding that children be made Crown wards. Further, I did express concerns about the approach of OCL counsel[5] for advocating for ongoing access from a policy perspective as opposed to focusing on the needs of this particular child before the court. In particular I was concerned about comments made by OCL counsel that perhaps the foster parents were not committed to these children in view of the position they were taking. The comments at the conclusion of the decision were made in the hope that there would be no further litigation so that all of the children can be provided with a permanent and stable home.
[32] Accordingly, I find that the OCL properly represented their child client's views and preferences on the summary judgment motion.
Was the Position of the OCL Unfounded?
[33] It was also submitted by counsel for the foster parents that the position of the OCL was unfounded.
[34] Although it was the finding of the court that the OCL position on behalf of E. for ongoing access did not meet the narrow legal test in the legislation, it is not appropriate to submit that the position should not have been advanced.
[35] The OCL had a legal obligation to advocate for their 11 year old client's wish to have ongoing access to her parents and not just accept the position of the society and the foster parents that there should be no access.
[36] The position of the OCL was no different than the parents and given the serious consequences of the outcome of the decision, it was appropriate for all parties to advocate for ongoing access and then require the court to make the decision based on the evidence presented.
Should Costs Be Ordered to a Non-Party?
[37] The foster parents were not parties to this proceeding. The society supported the position of the foster parents and vigorously and very competently put forward their position as their own.
[38] It is submitted by the foster parents that it was the unreasonable conduct of the OCL that required the foster parents to defend their position and engage fully in the litigation proceedings where it would otherwise not have been necessary.
[39] However, as submitted by the OCL, the mother and father both took the same position with respect to ongoing access and the foster parents are only seeking costs against the OCL.
[40] There is precedent for the court ordering costs to a non-party in a child protection proceeding. In the case of Children's Aid Society of London and Middlesex v. TANB,[6] the court granted costs to the foster parents. The foster parents had been granted expanded participation rights and advanced a position contrary to the society in a 10 day trial.
[41] However, in this case the position of the society and the foster parents were ad idem and much of the work undertaken by counsel for the foster parents was not attributable solely to the OCL's position. For example, the court at the trial management conference had advised society counsel that if it wished to rely on the position that the foster parents would not adopt the children if there was an order for access, it could not rely on the hearsay statement of the foster parents to the society worker but needed to file an affidavit from the foster parents. The foster parents chose to have their own counsel prepare their affidavits but could have relied on society counsel to do so. The society and the foster parents took the position that all OCL meetings with E. needed to be directed through counsel for the foster parents. However, the OCL had the right to meet with their client and this could have been arranged through the society. Further, the Bill of Costs sets out 2.7 hours to review the OCL's materials and 9.1 hours to review the parents' materials, yet all costs are claimed against the OCL without any apportionment to the other parties who opposed their position.
[42] The position of the OCL did not unduly prolong the case as it was the same position as the parents and the parents relied on the submissions of the OCL on the issue of access.
[43] Although it may have given the foster parents some comfort to retain their own counsel, I find that it was unnecessary for them to do so. Having chosen to retain their own counsel is then not a basis for requiring their legal costs to be paid by the OCL. The society fully supported their position and with respect to their counsel she did not add any insight or any legal arguments to those already made by society counsel. Her submissions were extremely brief when she attended on the first day of the motion and was excused from the continuation of the motion.
Conclusion
[44] This is not an appropriate case for ordering costs to be paid by the OCL. The OCL advocated for a position before the court on the basis of the views and preferences of their 11 year old client who had the right to be heard by the court. While the court did not accept that position or accept some of the evidence presented, nevertheless the OCL had the obligation to advocate on behalf of their client.
[45] The facts of this case do not show that there are exceptional circumstances that would warrant an order of costs against the OCL.
[46] Order as follows:
1. The request for costs by the foster parents against the Office of the Children's Lawyer is dismissed.
Released: May 30, 2017
Signed: Justice Roselyn Zisman
Footnotes
[1] Children's Aid Society, Region of Halton v. A.R., 2011 ONCJ 681; Children's Aid Society of Brant v. V.G. et al. (No.1), [2001] O.J. No. 3202; Children's Aid Society of London and Middlesex v. T.A.N.B. and S.D.A., [2010] O.J. No. 6369
[3] Children's Aid Society of Owen Sound and Grey County v. J.T., [2003] O.J. No. 5905
[4] Nova Scotia (Community Services) v. T.C., R.M., and D.W., [2011] NSJ No. 87 at para 41
[5] Only Mr. Del Junco represented E. on the summary judgment motion.
[6] ibid