WARNING

The court hearing this matter directs that the following notice should 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

Date: February 13, 2018

Court File No.: C48596/09

Ontario Court of Justice

Between:

Children's Aid Society of Toronto

Mae-Tuin Seto, for the Applicant

Applicant

- and -

K.L. and A.G.

Lorelee Messenger, for the Respondent, K.L. Sharon Worthman, for the Respondent, A.G.

Respondents

Heard: February 12, 2018

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] The respondent, K.L. (the mother), seeks her costs of a case conference held on February 12, 2018 against the applicant (the society) in the sum of $1,500. The respondent, A.G. (the father), also seeks his costs in the sum of $900 from the society. The society submits that no costs should be paid to either respondent.

Part Two – Background Facts

[2] The facts related to the costs issue are not materially in dispute.

[3] The society has issued a protection application relating to the parents' two children, N.G., who is three months old, and D.G., who is four years old.

[4] N.G. was apprehended by the society from the parents' care on November 16, 2017.

[5] On November 21, 2017, the court made a temporary order placing N.G. in the care of the society and D.G. in the care of the respondents (the parents), subject to society supervision.

[6] D.G. was apprehended by the society from the parents' care on November 27, 2017.

[7] On December 1, 2017, the court placed D.G. in the temporary care of the society.

[8] D.G. was previously in the care of the society from May 31, 2013 until March 26, 2014 (almost 10 months). Accordingly, as of today, he has now been in society care in excess of the statutory time limit of 12 months during the past five years.[^1]

[9] A temporary care and custody motion was argued on December 18, 2017. The court gave oral reasons and made the following temporary orders:

a) The children shall remain in the care of the society.

b) The parents shall have access to N.G. three times each week. Two of the visits shall be in the family home for a minimum of three hours and one visit shall take place with D.G. and be supervised in the society offices for a minimum of two hours.

c) The parents shall have access to D.G. three times each week. In addition to the visit at the society offices with N.G., the parents shall have two unsupervised visits each week with him in the community. One of the visits will be on Saturdays for six hours, the second visit during the week for three hours.

d) Terms were set out for the parents' access.

[10] The society did not follow the court's access order for D.G. It acknowledged that five community visits with the parents were missed from December 18, 2017 until the end of January, 2018. The society was only providing one of the two community visits ordered for D.G. each week.

[11] The society described its breach of the court order as inadvertent and apologized to the parents and the court. It appears that mother's counsel brought the breach to the society's attention on or about January 26, 2018. The society has complied with the court order since that date.

[12] The society has complied with the court-ordered visits for N.G.

[13] On February 9, 2018, the society amended its protection application to seek a disposition of crown wardship, with no access, for D.G. The parents were served with this application at court on February 12, 2018.

[14] At the case conference held on February 12, 2018, the parents raised their concerns about the society's breach of the access order. They were understandably upset by their missed visits. After discussion, the case was held down for the parties to discuss how to remedy the society's breach of the order and see if the costs issue could be resolved.

[15] The parties agreed to a schedule of make-up visits for D.G. They could not agree on the costs issue and submissions were made.[^2]

[16] The court addressed other issues at the case conference, including:

a) Setting a time line for the society to provide updated file disclosure to the parents.

b) Setting a time line for the society to set out its expectations of the parents and what it will do to facilitate those expectations.

c) Leave was granted to the parents to bring a motion to increase access.

d) The court indicated to the parties that if the finding in need of protection issue was not resolved by February 23, 2018, a hearing on the issue would be scheduled on that date.

Part Three – Legal Considerations

[17] Subrule 24(2) of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) sets out that in a child protection case there is no presumption that the successful party is entitled to a costs order.

[18] The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection. It should not be dissuaded from the pursuit of its statutory mandate by costs considerations. See: Children's Aid Society of Ottawa-Carleton v. S., [2003] O.J. No. 945 (SCJ-Divisional Court).

[19] Justice Deborah Chappel conducted a thorough review of the case law concerning costs claims against child protection agencies in Children's Aid Society of Hamilton v. K.L., 2014 ONSC 3679, 2014 O.J. No. 2860 (SCJ-Family Division) and set out the following principles:

a) Child protection agencies do not enjoy immunity from a costs award.

b) The starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.

c) The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.

d) The high threshold of "bad faith" is not the standard by which to determine a claim for costs against a child protection agency.

e) Costs will generally only be awarded against a Children's Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.

f) A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome.

g) Important factors to consider in deciding whether costs against a Society are appropriate include the following:

i. Has the Society conducted a thorough investigation of the issues in question?

ii. Has the Society remained open minded about possible versions of relevant events?

iii. Has the Society reassessed its position as more information became available?

iv. Has the Society been respectful of the rights and dignity of the children and parents involved in the case?

v. In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society's efforts to diligently carry out its statutory mandate of protecting children.

[20] A child protection agency should neither be rewarded nor punished by an order for costs, but rather it should be held accountable. See: Children's Aid Society of Brant v. D.M.C. and J.C., [1997] O.J. No. 3145 (OCJ).

[21] The lens through which the society's conduct is viewed is that of the properly informed, reasonable person, considering the society's conduct and the prejudice caused to the child or parent by that conduct. See: Catholic Children's Aid Society of Toronto v. S.V., 2000 O.J. No. 5866 (OCJ).

[22] One of the objectives of costs is to discourage and sanction inappropriate behaviour by litigants. See: Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.).

[23] Subrule 2(2) adds an additional purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711; Children's Aid Society of Halton v. J.S., 2014 O.J. No. 522 (OCJ).

[24] Clause 1(8)(a) of the Family Law Rules provides the court with additional authority to make a costs order where a person has breached an order.[^3] A Children's Aid Society is not exempt from this rule. This clause reads as follows:

FAILURE TO OBEY ORDER

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

[25] Once liability for costs is established in a child protection proceeding, the court must determine the appropriate amount of costs, having reference to the provisions of Rule 24. See: Children's Aid Society of Halton v. J.S., supra; Children's Aid Society of Hamilton v. K.L., supra.

Part Four – Liability for Costs

[26] The society asks that the parents' costs claims be dismissed. It submits that its actions were not unreasonable or made in bad faith.

[27] No one has alleged that the society acted in bad faith. That is not the threshold required to make a costs order.

[28] The court finds that a properly informed, reasonable person would consider the society's behaviour to be unreasonable.

[29] The terms of the access order made on December 18, 2017 were clear – the society has not argued differently.

[30] The court understands that there will occasionally be circumstances where a court-ordered visit will be missed due to a variety of reasons. However, this was not a minor breach of an order – it was a significant and ongoing breach.

[31] Aside from submitting that the breach of the court order was inadvertent, the society offered no reason why the court order was not followed. Although the society changed its lead counsel on the case after the temporary care hearing was held, its family service worker has remained the same.[^4] It was incumbent on this worker (and society counsel) to make sure that the society complied with the court order. It is not acceptable that the parents' relationship with D.G. has been compromised due to poor internal society communication.

[32] At best, the society's behaviour regarding the parents' access to D.G. was sloppy and negligent.

[33] The society's behaviour has had adverse consequences for D.G. and the parents. The statutory time limit for D.G. to remain in care has been reached. A permanent decision will soon need to be made about his future. The court crafted a more aggressive access order than that sought by the society at the temporary care hearing, partly in consideration of the compressed statutory time limit and the need to determine if the parents could effectively parent D.G. for extended periods of time. The adjournment period between December 18, 2017 and February 12, 2018 was a critical time in this case to make this assessment.

[34] The society's failure to provide five community visits in the five weeks following the temporary care hearing has prejudiced the parents' opportunity to show that they can parent D.G. for an extended period of time. It has undermined the structure set up by the court to evaluate the case in a timely manner. This is unfair to the parents and the child.

[35] It is fundamental to the integrity of a child protection system that a society comply with court orders and that courts make it clear that the society's failure to do so, without reasonable excuse, is unacceptable and will have consequences.

[36] This court finds it just in the circumstances of this case to order the society to pay costs to the parents.

Part Five – Amount of Costs

[37] In making this decision, the court considered the factors set out in subrule 24(11), which reads as follows:

24 (11) A person setting the amount of costs shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party's behaviour in the case;

(c) the lawyer's rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[38] This case is very important to the parties and the child. This step in the case was not complex or difficult.

[39] The society has acted unreasonably in breaching the court order. However, it mitigated this behaviour by:

a) Complying with the access order once it was alerted to its breach by counsel for the mother.

b) Apologizing for the breach in court.

c) Agreeing to a schedule of make-up visits at the case conference.

[40] The rates claimed by counsel for the parents were reasonable.

[41] The court considered that the court was able to address issues other than the access breach at the case conference – the parents aren't entitled to all of their costs for their preparation for and attendance at the case conference as requested. However, a significant amount of time was spent on the access breach issue. Counsel had to follow up on this issue with the society prior to the court appearance. It prompted the mother to prepare a case conference brief. Counsel had to stay until after the lunch hour (after being at court all morning), as the matter was held down to negotiate make-up access for the parents. This hadn't been worked out prior to the case conference.

[42] The access order breach has resulted in a delay in the case. Instead of focusing on an evaluation of the access on February 12, 2018, the court had to focus on the access breach issue. This has resulted in unnecessary additional costs for the parents.

[43] The father acknowledged that the mother took the lead on the access breach issue and should be awarded a higher amount of costs.

[44] Taking into consideration all of these factors, an order will go on the following terms:

a) The society will pay the mother's costs of the case conference fixed at $1,000.

b) The society will pay the father's costs of the case conference fixed at $500.

c) Costs are payable within 10 days.

Released: February 13, 2018

Justice S.B. Sherr

Footnotes

[^1]: Clause 70(1)(a) of the Child and Family Services Act (the Act) sets out the statutory time limit for a child under 6 years of age as follows:

Time limit

70 (1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or

Subsection 70(2.1) of the Act sets out previous periods of time to be counted as follows:

Previous periods to be counted

(2.1) The period referred to in subsection (1) shall include any previous periods that the child was in a society's care and custody as a society ward or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society's care and custody.

[^2]: The society's counsel submitted that she was not put on notice that the parents would seek costs. She was offered an adjournment of the issue. She declined, indicating there were no further submissions that would be made.

[^3]: Children's Aid Societies are treated as persons throughout the Family Law Rules. For instance, see paragraph (v) of clause 6(3)(a) (provision for special service of documents).

[^4]: The court notes that the society counsel who attended at this appearance does not have carriage of this case and was appearing for the new lead counsel, who was unavailable.