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
Ontario Court of Justice
Court File No. 327/12
Applicant Counsel
Windsor-Essex Children’s Aid Society Mark Hurley
Respondents
J.D. Jotan Foster
P.E. Sharon Murphy
T.B. & D.B. Robert Ballance
Heard: In writing
COSTS ENDORSEMENT
The Issue
- The issue before the court on this request for costs is whether costs should be awarded as between the Respondent father and Respondent maternal grandparents in this Status Review Application.
The Litigation
The Windsor-Essex Children’s Aid Society (the “Society”) brought a Status Review Application in which it sought a finding that the child T.E., born … 2012 remained in need of protection. The disposition order sought was placement of the child in the custody of his maternal grandparents, D.B. and T.B. (the “maternal grandparents”) pursuant to s.57.1 of the Child and Family Services Act (the “Act”). The Society did not seek any order for access in favour of the child’s father, P.E.
In his Answer and Plan of Care, P.E. (the “father”) sought an order placing the child in the custody of his sister, L.E. and her partner, B.F. (“the sister and her partner”). He sought access to the child.
The issues of the continued finding and disposition were decided on a summary judgment motion. By Order of Justice Phillips dated July 22, 2016, the child was found to remain in need of protection and was placed in the custody of the maternal grandparents pursuant to s.57.1. The issue of access to the child by the Respondent father and his sister and her partner was directed to be tried.
On May 11, 2017, the eighth day of the access trial, counsel advised that they had resolved the matter. That day, an Order was made based on the consent and evidence presented at the hearing which granted L.E. and her partner, B.F., access with the child six times per year for two hours per visit. The access is to be supervised and take place at the home of the maternal grandparents. The costs of supervision are to be paid by L.E. and B.F.
The father and maternal grandparents now seek costs from each other.
Claim for costs
by the maternal grandparents
The maternal grandparents seek costs as against the father, sister and her partner in the amount of $39,654.73.
The paternal grandparents base their claim for costs upon the following:
a) The Society was consistent in its position that the maternal grandparents be granted custody of the child and the “only persons with the authority to decide who will visit with” the child;
b) The father pursued his claim for access;
i. during a period he was involved in a series of serious criminal offences;
ii. while he was a fugitive from justice between October 28, 2014 and October 21, 2015; and
iii. while he was under arrest – during the trial – on outstanding criminal charges. He withdrew his claim for access following his arrest.
c) They made an offer to settle mid-trial (April 21, 2017) that provided:
i. The father’s claim for access would be dismissed; and
ii. The aunt and uncle would have supervised access – paid for by them – to the child six times a year for two hours per visit subject to terms;
d) The offer to settle they made is substantially the same as the Order made by the Court based upon the consent of the parties;
e) In their last offer made on May 4th, 2017, the father sought access on a monthly basis for his sister and her partner; and
f) The father ignored the caution of Justice Phillips in his Reasons dated February 29, 2017 where he stated that following a custody order in favour of the maternal grandparents “the notion of access on the frequency of the current interim order [two hours per month] was not likely tenable, especially if the element of supervision continues to be required.”
- The maternal grandparents seek costs on a partial indemnity basis to the date of the mid-trial offer and thereafter on a full indemnity basis.
by the father
The father seeks costs as against the maternal grandparents in the amount of $20,068.00.
The basis of the father’s claim for costs is as follows:
a) Once the summary judgment motion was granted he sought access for himself, his sister and her partner;
b) Until the last day evidence was heard, the position of the maternal grandparents as articulated in court was that the father, his sister and her partner should not have any access;
c) While this case was ongoing, the sister and her partner sought party status twice but were unsuccessful. Justice Phillips found that their claim was consistent with the father’s claim. However, despite being denied party status they were granted supervised access once per month for two hours per visit;
d) The Society’s position at the commencement of trial was to support ongoing supervised access by the sister and her partner six to eight times per year. The Society did not support any access being granted to the father. The position of the maternal grandparents was to dismiss the entirety of the father’s claim which would include access between the child and the sister and her partner;
e) The resolution agreed to by the parties and ordered by the Court granted the sister and her partner access and therefore the father’s claim for access on their behalf was successful; and
f) Having regard to all of these factors, the father argues that the position of the maternal grandparents up to the time the matter was resolved was unreasonable and that his position was reasonable.
Legal Considerations
Costs Generally
Costs considerations are governed by s.131 of the Courts of Justice Act and Rule 24 of the Family Law Rules.
Section 131(1) of the Courts of Justice Act provides the court with broad discretion in awarding costs. Rule 24 of the Family Law Rules directs the court how discretion in relation to costs should be exercised. In effect, Rule 24 circumscribes the broad discretion provided to a court by s.131.
Under Rule 24, successful parties are presumptively entitled to costs (r. 24(1)) unless they have behaved unreasonably (r. 24 (4) and (5)). However, the presumption that a successful party is entitled to costs does not apply in a child protection case (r. 24(2)).
Does r. 24(2) apply?
The maternal grandparents argue that Rule 24(2) should not apply in this case because the claim for access was made after a s.57.1 custody order was made. In other words, he argues this case was not a child protection one, rather it was a deemed access case under the Children’s Law Reform Act, pursuant to ss. 57.1 (2).
With respect, I do not agree with this proposition. I addressed this question in my reasons of February 6, 2017 in this case: see Windsor-Essex Children’s Aid Society v. D. (J.) 2017 ONCJ 20. One of the issues before me at that time was whether the Court had jurisdiction to make an access order pursuant to s.58 after a custody order had been made under s.57.1 of the Act. I held that it did for the following reasons:
“20 On the summary judgment motion, the court found that it was in the child’s best interests to be placed in the custody of the maternal grandparents. The court specifically directed the issue of access to be tried. Access, therefore is the remaining issue in this case. The court did not direct that a new case had to be started under the Children’s Law Reform Act.
21 Subsection 57.1(2) provides that any access order under section 58 made at the same time as the order under subsection 57.1(1) shall be deemed to be made under section 28 of the Children’s Law Reform Act.
22 As the access issue is to be addressed at a hearing sometime after the section 57.1 custody order was made, the question is whether the access order can be made under section 58. In other words, is the access order to be made at the hearing “made at the same time” as the custody order under section 57.1? Must a new application be made?
23 I interpret the phrase “at the same time as the order is made” to mean that the access order referred to is one made within the same case. The access order does not of necessity need to be made contemporaneously with the section 57.1 custody order. Section 57.1 was formulated to allow a court to make a custody order without the need for a separate application under the Children’s Law Reform Act. It allows for permanency planning in an expeditious manner. Defining the child’s access to others is part of this permanency planning.
24 Also, if the access order had to be made literally at the same time as the custody order, it would defeat the purpose of the summary judgment rule which, in part, is a rule to allow for the expeditious and cost-effective resolution of cases.
25 The summary judgment rule allows a court to grant a final order in respect of all or some claims. For those claims where a final order is not granted on a summary judgment motion, a trial of issues can be directed.^11 That is what happened in this case. Justice Phillips directed a trial of the issue of access. The outstanding issue within the status review application that remains before the court is access.” [Footnote omitted].
I understand the maternal grandparents also to argue that even if the form of the case was in substance under the Act, it was an access case between the maternal grandparents and the father and as a consequence r.24(2) should not apply. In effect, he argued the Society had no significant interest in the case as its goals were met when the continued finding and disposition order were made on the summary judgment motion. Therefore, the case was not “really” a child protection one. I do not agree with this argument. Firstly, the Society was an active participant in this case. It called evidence and examined the witnesses called by the Respondents. Secondly, it was clear about the order it wanted the Court to make. Thirdly, it consented to the resolution proposed and accepted by the Court. Fourthly, it was obliged throughout this case to pursue an access order that was in the child’s best interests.
The hearing before me dealt with access issues arising within the Society’s Status Review Application.
The proceeding before me was a child protection case for the purposes of Rule 24 (2).
Costs as between Respondents in a child protection case
The Respondents did not claim costs against the Society nor did the Society claim costs against any of the Respondents. The costs claim in this case are between the Respondent maternal grandparents and the Respondent father.1
The Divisional Court in Re S. (D.) (2003), 2003 CanLII 88994 (ON SCDC), 39 RFL (5th) 209 considered a claim for costs between parents in a child protection proceeding. In their written submissions counsel did not refer to this case nor those that considered it. I invited counsel to do so but did not receive further submissions from them.
In Re S. (D.) a father unsuccessfully appealed a child protection trial decision. The mother adopted the Society’s position on the appeal. While the Society did not seek costs against the father, the mother did. The Court explained why the presumptive costs rule does not apply in child protection cases as follows:
“(3) The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a children’s aid society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations. Parents, on the other hand, are generally insulated from claims for costs in such proceedings because when faced with state intervention in the care and upbringing of their children, they have a right to force the state to prove its case and should not be penalized in costs. See Children’s Aid Society of Ottawa-Carleton v. V. (2001), 105 A.C.W.S. (3d) 885, [2001] O.J. No. 2147, [2001] O.T.C. 428, 2001 CarswellOnt 1991 (Ont. S.C.J.).”
- With respect to the successful parent’s claim for costs as against the other parent the Court held:
“[5] However, the wording of subrule 24(2) is clear and unequivocal. The presumptive entitlement to costs “does not apply in a child protection case”. The mother is not presumptively entitled to costs. There may be appropriate cases for costs awards as between the parents in a child protection case, but entitlement must be based on something more than merely the outcome of the case.”
- In A.S. v. G.S. 2010 ONSC 1287, the Court offered the following rationale for constraining the Court’s exercise of discretion to order costs as between Respondents in a child protection case:
“[15] They are co-respondents, defending a claim brought by an applicant society that is state funded with a statutory mandate to protect children. Child protection societies exercise their discretion independent of the interests of the parents. At certain stages of a proceeding a parent’s interests may align with those of the society, or the information of one parent may be preferred over another’s in determining a plan of care for children, but at no time does a society act on behalf of a parent.
16Parents who find themselves adverse in interest to a society are generally insulated from a claim for costs. They are to be given considerable latitude in defending their case and to require the society to prove its case. Costs are not to be awarded against a parent except in unusual or exceptional cases, even in the face of difficult conduct:
Unless unreasonable conduct is so excessive as to warrant condemnation, thereby putting the case into the category of one of those “rare” cases warranting a cost consequence, I find that the parent’s right to oppose a child protection proceeding should not be lightly interfered with, even in cases where, with the benefit of hindsight the manner and the nature of the defence presented by parents may be considered to have been excessive and unreasonable. Kenora-Patricia Child & Family Services v. (M.A.), [2007] W.D.F.L. 1732.
17In my view, costs as between parents in a protection proceeding ought not to have a different treatment. The subject matter of the application, the governing statute and the jurisprudence all speak to the same overriding purpose: the care and protection of children. The fear of a costs sanction ought not impede a vigorous presentation of any participant’s case provided that one is acting in good faith, and in a manner not excessively unreasonable or disproportionate to the issues involved. The legislature has specifically recognized this approach by eliminating the presumptive entitlement to costs to any successful party.
- In cases decided subsequent to Re S(D.) where a Respondent claimed costs as against another Respondent, courts have considered whether:
a) a party acted in bad faith: Children’s Aid Society of the Niagara Region v. R.(L.J.) 2005 CanLII 37973 (ON SC), [2005] O.J. No. 4455 (Ont. S.C.J.) and Children’s Aid Society of Ottawa v. K. 2005 CanLII 21551 (ON SC), [2005] O.J. No. 2573;
b) there was some degree of unreasonableness or meritless argument or some other exceptional element present such as the failure to exchange offers to settle: Children’s Aid Society of Simcoe County v. C.S. 2006 CanLII 6688 (ON SC), [2006] O.J. No. 871 (Ont. S.C.J.);
c) there has been unreasonable conduct that is so excessive as to warrant condemnation: A.S. v. G.S. supra; and
d) a party has acted in a manner that is disproportionate to the issues involved: Children’s Aid Society, Region of Halton v. S. (J.) (2014) ONCJ 38.
Application of Legal Principles
as against the father
I find that the Respondent father, sister and her partner did not act unreasonably or inappropriately in this case such that he should be ordered to pay costs as claimed by the maternal grandparents.
Following the s. 57.1 Order being made, the father was consistent that he wanted access for his sister and her partner. This was a way he could ensure that he had some connection with his child despite the significant problems he had to deal with arising from his involvement in criminal behaviour.
It was appropriate that he pursue a plan at trial whereby his sister and her partner would have access with the child. They had significant involvement with the child early in his life and had ongoing access pursuant to a court order. That the case was not settled on the basis that the sister and her partner had as much access as they wanted does not make the Respondent’s behaviour in the litigation unreasonable. Following his arrest mid-trial – when he went to the police station to obtain a police record check thinking that he had dealt with all his outstanding matters – he wisely decided not to pursue his claim for access.
I also take into account that while the case was ongoing the father did deliver offers to settle. Through counsel he did try to engage the maternal grandparents in settlement discussions.
as against the maternal grandparents
I also find that during this case the maternal grandparents did not act in such an exceptional manner as would give rise to the Respondent father’s entitlement to a cost order as against them.
At the opening of the trial, counsel for the maternal grandparents stated that their position was that there be no access to the father, the sister and her partner. They presented evidence detailing the difficulties that they had in managing the behaviour of the child which they believe were causally linked to actions taken by the sister.
I accept that their position was informed by the Society’s advice to them that they, the maternal grandparents, should be the ones who decide who would visit with the child. They took a position at trial that was consistent with this advice. But I also take into account that at the opening of the trial the position of the Society was that the sister and her partner have limited access. By taking a position different than that of the Society, when based upon the evidence they presented, does not make their position so unreasonable or exceptional as to warrant a costs order against them.
When considering the evidence presented, I find that the positions of both parties were advanced in good faith.
I also take into account that the Respondents compromised their respective positions to reach a settlement in this case. Neither achieved the results they sought when the trial started. After hearing all of the evidence, they arrived at a resolution that will keep the child safe and at the same time allow him to maintain a relationship with paternal relatives.
For these reasons, the respective claims for costs by the maternal grandparents and the father are dismissed.
Original signed & released
Justice Barry Tobin
Date released: August 4, 2017
