WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: August 24, 2020

Court File No.: C21032/18

Ontario Court of Justice

Parties

Between:

Children's Aid Society of Toronto

Sherri Smolkin, for the Applicant

Applicant

- and -

C.B. and K.J.

Colin Tobias, for the Respondent, C.B. M. Keyshawn Anderson, for the Respondent, K.J.

Respondents

Kenneth Snider, on behalf of the Office of the Children's Lawyer, for the subject children

Heard: August 12, 2020

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] This is a costs decision arising out of the respondent K.J.'s (the father's) motion to enforce the court's access order dated December 17, 2019 (the access order).

[2] The enforcement issue arose when the respondent C.B. (the mother) did not comply with the access order because of her health concerns arising from the COVID-19 pandemic (the pandemic).

[3] On July 8, 2020, a motion date was scheduled for August 12, 2020 to hear the father's enforcement motion. The respondents subsequently resolved the matter and a consent order was made on August 10, 2020. The consent provides that the access order remains in full force, specifies when access resumes and sets out that the respondents shall ensure that they and their three children (the children) comply with COVID-19 health protocols.

[4] The consent provided that the issue of costs of the motion remained outstanding. This issue was argued on August 12, 2020 by teleconference.

[5] The father seeks costs of the motion in the amount $1,500 against the mother. The mother, the Children's Aid Society of Toronto (the society) and counsel on behalf of the Office of the Children's Lawyer for the children (the OCL) ask that no costs be ordered.

Part Two - Background Facts

[6] The respondents are the parents of the children.

[7] This status review application pertains to the younger two children (the younger children).

[8] On December 17, 2019, on consent, the court made final dispositional orders for the children on the society's protection application. The younger two children were placed in the care and custody of the mother, subject to the supervision of the society for six months. The access order provides that the father has alternate weekend and holiday access with them. This remains the operative order for the younger children.

[9] The oldest child was placed in the care and custody of the father, pursuant to section 102 of the Child, Youth and Family Services Act, 2017 (the Act). The mother has specified access to the oldest child.

[10] These orders were made after lengthy child protection litigation between the respondents that started in Brockville, Ontario in April 2018 and which was subsequently transferred to this court.

[11] The respondents initially complied with the access orders.

[12] When the pandemic began in March 2020, the respondents agreed that they would suspend in-person contact with the children not in their care. They continued to have telephone contact with them.

[13] On or about May 19, 2020, the father notified the mother that he wished to resume in-person contact with the younger children in accordance with the access order, as public health restrictions were loosening. He made this request again on June 7 and June 17, 2020. The mother did not agree.

[14] The father made the same request through counsel on June 23, 2020. The mother's response was that the father must first agree to take the children if she contracted the virus due to the younger children being in his care, or to take the younger children permanently if she did not recover from the virus. The father did not agree with these conditions and again asked for access in accordance with the access order. The mother said no.

[15] The father then moved by Form 14B to request an urgent access enforcement motion on the scheduled return date of July 8, 2020. The court endorsed on July 3, 2020 that absent consent, the motion would not proceed on July 8, due to short notice. However, the court endorsed that the father could seek the scheduling of the motion on July 8.

[16] The mother understandably did not consent to have the motion heard on July 8 as she needed time to file responding material. The court conferenced the issue and encouraged the parents to resolve it. When the issue wasn't resolved, filing timelines were set and the motion was scheduled.

[17] The respondents subsequently exchanged offers to settle and settled the matter. The father resumed his access with the younger children in accordance with the access order on July 24, 2020.

Part Three – Costs Between Parents in Child Protection Cases

[18] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, set out that modern costs rules are designed to foster four fundamental purposes:

(1) to partially indemnify successful litigants;

(2) to encourage settlement;

(3) to discourage and sanction inappropriate behaviour by litigants; and

(4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

[19] These purposes are slightly modified in child protection cases. Subrule 24(2) provides that there is no presumption that a successful party is entitled to costs in a child protection case. Success is not as dominant a factor, and in many child protection cases, it is not a factor at all.

[20] Case law has set out that unless it is an exceptional or unusual case, Children's Aid Societies will not be awarded costs against parents, even in the face of difficult conduct by a parent. See: Child and Family Services for York Region v. A.S., 2010 ONSC 1287; Jewish Family and Child Service of Greater Toronto v. Y.B., 2011 ONCJ 633.

[21] Courts have generally required a very high threshold before ordering costs between parents in child protection cases.

[22] In Children's Aid Society of Ottawa v. S. (D.), the court wrote at paragraph 19:

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.

[23] In Children and Family Services for York Region v. S. (A.), 2010 ONSC 1287, Justice Heather McGee found that, as a general rule, parents in a protection proceeding should have no less protection against a claim for costs against them by the other parent than they would have against them in a claim brought by the Society. She wrote at paragraph 20:

In 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 to 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.

[24] In Children's Aid Society of Toronto v. S.T., 2018 ONCJ 573, Justice Ellen Murray wrote that costs should only be ordered between parents in a child protection case if a parent has exhibited extreme unreasonable conduct. She set out examples of extreme unreasonable conduct as being: unreasonable behaviour that harms the children, a parent who heightens and extends conflict, a parent who repeatedly disobeys court orders, or who misleads the court and a parent found to be acting in bad faith. However, she observed that even highly unreasonable behaviour by a parent may not result in an award of costs if the behaviour originates from mental illness, not just stubborn rigidity.

[25] Many courts have applied this high threshold in denying costs claims made by parents (or caregivers) against other parents. For recent examples see: Children's Aid Society of the Regional Municipality of Waterloo v. M.T., 2019 ONSC 1304; Windsor-Essex Children's Aid Society v. J.D., 2017 ONCJ 551.

[26] Other courts have been willing to order costs to be paid between parents in child protection cases where the parent has acted in bad faith or in an excessively unreasonable or disproportionate manner, has advanced meritless arguments or has failed to genuinely attempt to resolve matters.

[27] In Children and Family Services for York Region v. S. (A.), supra, Justice McGee found that the father exhibited excessive unreasonable and disproportionate behaviour and ordered him to pay costs of $160,000 to the mother.

[28] In Children's Aid Society of Halton Region v. J.S., 2014 ONCJ 38, Justice Roselyn Zisman wrote that while parents should be entitled to vigorously oppose and defend themselves in a child protection proceeding without the fear of cost sanctions, they will not be insulated from a claim of costs if they act in bad faith, are unreasonable or act in a manner that is disproportionate to the issues involved. The father was ordered to pay the mother costs of $18,000.

[29] In Children's Aid Society of Toronto v. E.C. and J.C., 2018 ONCJ 97, Justice Debra Paulseth ordered costs of $16,343.90 to be paid by the father to the mother when the father unreasonably delayed the trial of the finding issue, unreasonably objected to the finding, sent intimidating texts to the mother and wasted time at court appearances.

[30] In Children's Aid Society of Ottawa-Kanata v. B.S., 2019 ONSC 2224, Justice Maria Linhares de Sousa ordered costs of $16,000 to be paid by a mother to a father where the mother had acted unreasonably throughout the course of the litigation, adding significant costs to the father.

[31] What all these cases shared in common was that they were disputes where the Children's Aid Society took an active position in the litigation. The parents seeking costs were usually aligned with the Children's Aid Society against the other parent. This court endorses the high threshold for a costs order between parents in those circumstances as parents should not be dissuaded by the threat of costs orders from aggressively advancing claims against or defending themselves from claims involving Children's Aid Societies.

[32] But is a very high costs threshold of extreme or excessive unreasonable behaviour appropriate when a parent breaches a court order to deny the other parent access – particularly where the society takes no position on access?

[33] It is this court's view that imposing such a high threshold would be contrary to the primary purpose of the rules set out in rule 2 – to deal with cases justly - for the following reasons:

a) The dispute is between the parents – not the parent and the society. The parent's right to vigorously challenge institutional intervention without fear of costs consequences is usually not a consideration in these circumstances.

b) The issue in dispute generally mirrors an access dispute under the Children's Law Reform Act. Several courts have commented that the closer a dispute between parents in a child protection case resembles a custody and access dispute under the Children's Law Reform Act, the more willing courts may be to order costs. See: Children's Aid Society of Toronto v. R.G., 2019 ONCJ 380; Children's Aid Society of Toronto v. E.C. and J.C., supra; Jewish Family and Child Service of Greater Toronto v. Y.B., supra.

Earlier in this case, on May 10, 2019, Justice Debra Paulseth did just that when she ordered the mother to pay the father's costs of $1,000 within 6 months, when the mother unsuccessfully brought a motion to permit her to take the children out of school to see her partner in prison.

c) It is important to send the message to parents that unreasonably breaching access orders in a child protection case will have costs consequences. Denial of access often results in the impairment of vital parent-child relationships. It is harmful to the child, the parent, and in a case like this, siblings who reside in different homes and cannot see one another.

d) There is also a financial cost to a parent to enforce an order for access. That parent should not be required to assume the full burden of that cost when he or she has acted reasonably and is only seeking what the court has already ordered.

e) Costs orders are important tools to change unreasonable behaviour. In a case like this, it is an important tool to discourage future breaches of access orders.

[34] Clause 1(8)(a) of the rules provides the court with additional authority to make a costs order where a person has breached an order. 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;

[35] Unlike subrule 24(2), in clause 1(8)(a), there is no differential treatment for child protection litigants who fail to obey an order.

[36] It is not only parents who fail to follow access orders who may have costs ordered against them. This court ordered $1,500 costs against a Children's Aid Society when it failed to follow the terms of an access order, even when the non-compliance with the order was due to internal society miscommunication. See: Children's Aid Society of Toronto v. K.L., 2018 ONCJ 95.

[37] While there is no presumption that the successful party is entitled to costs in a child protection case, the parent who successfully moves to enforce an access order against the other parent should not have to demonstrate excessive or extreme unreasonable behaviour in order to establish entitlement to costs. Demonstrating unreasonable behaviour should suffice.

Part Four – Costs for Non-Compliance with Orders During the Pandemic

[38] In Smith v. Bowen, 2020 ONCJ 212, Justice Sheilagh O'Connell declined to order costs on an urgent motion after ordering a father to return a child to the mother during the pandemic. She wrote:

[43] Ordinarily, I would have very likely ordered costs against the father for breaching the final court order.

[44] However, as I have indicated, these are not ordinary times. During this time of Covid-19, and on this occasion only, I am prepared to give the father the benefit of the doubt. I will not order costs against him for his unreasonable behaviour.

[39] Other courts are not discounting costs awards when, during the pandemic, they have found that a parent has either denied access or overheld a child in contravention of a court order.

[40] In Smith v. Smith, 2020 ONCJ 219, Justice Jane Caspers denied a mother's request to suspend the father's face-to-face access. The father sought costs of $6,400 and the court ordered costs of $5,000, finding that the mother acted unreasonably.

[41] In Medu v. Medu, 2020 ONSC 3159, Justice Lucy McSweeney found the father acted in bad faith by overholding the children and not telling the mother where they were for four weeks. It ordered full recovery costs of the motion of $6,850.

[42] In Winiarz v. Anderson, 2020 ONCJ 238, this court ordered costs against a parent who overheld a child, but discounted the costs payable, due to the challenges that parents are facing in making health and safety decisions about their children during the pandemic.

[43] The court will use the same approach that it took in Winiarz.

Part Five - Further Legal Considerations

[44] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[45] An award of costs is subject to the factors listed in subrule 24(12), subrule 24(4) pertaining to unreasonable conduct of a successful party, subrule 24(8) pertaining to bad faith, subrule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

[46] Subrule 24(12) reads as follows:

24(12) In setting the amount of costs, the court shall consider,

a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party's behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

b) any other relevant matter.

[47] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel. However, a party's limited financial circumstances will not be used as a shield against any liability for costs, but will be taken into account regarding the quantum of costs. See: Snih v. Snih.

Part Six – Analysis

[48] The court finds that the father is entitled to costs for this motion.

[49] The issue on this motion mirrored pandemic-related access disputes the court is hearing pursuant to the Children's Law Reform Act.

[50] The society was not taking a position regarding the access order. This was strictly a dispute between the parents.

[51] This was not a motion where the prospect of a costs order would prevent a parent from vigorously defending themselves from or advancing a claim directly involving a well-resourced institutional litigant.

[52] The society submitted that the father appeared content with suspending in-person access as he did not complain to the society about this until late June 2020. However, the evidence is clear that the father was not satisfied by May 19, 2020 with the suspension of in-person access and took reasonable steps to restore it.

[53] The father notified the mother several times in May and June that he wanted to resume in-person access. He sought resumption of access on June 23, 2020 through his lawyer. It was only after these efforts were rejected that he moved to court to enforce the access order.

[54] It is merely reflective of the dispute being between the parents, and not between the father and the society, that the father did not let the society know of his dissatisfaction with the access arrangement until late June 2020.

[55] The father also acted reasonably by promptly serving an offer to settle. With minor amendments, his offer formed the basis of the resolution and the parenting time set out in the access order was restored. Although the costs consequences set out in subrule 18(14) do not apply, the court has considered the offer under subrule 18(16). The father was unnecessarily put to the cost of bringing his access enforcement motion and deserves partial indemnification.

[56] The court understands why there would be some delay by the mother in agreeing to restore the access order. She needed to consult with counsel. She had health and safety concerns for herself and the children and was entitled to reasonable assurances that health protocols would be followed. These are difficult predicaments for parents. However, her imposition of pre-conditions for in-person access (specifically that the father had to take all the children if she contracted the virus, and permanently take the children if she died), was not reasonable. It was unreasonable of the mother to deprive the father and the children of in-person access for over two months after the father put her on notice that he sought resumption of the access order.

[57] A parent is not permitted to simply engage in self-help, or to interpret public health directives as a license to terminate parenting time. If the parent fears that the current routine may compromise their child's well-being or the health of a person in the home, then the parent must provide specifics and bring a motion to change the order. See: Ahmadi v. Kalashi, 2020 ONSC 2047, at para. 8; Catholic Children's Aid Society of Toronto v. C.P.I., 2020 ONCJ 304. The mother did not do this – she made a unilateral and unreasonable decision about access.

[58] The mother did act reasonably by making a reasonable counter-offer to the father's offer to settle. She even offered the father more parenting time than in the access order. This led to the settlement of the matter. This reasonable behaviour substantially reduced her costs liability.

[59] The mother, the society and the OCL submitted that no costs order should be made because it might escalate conflict between the respondents and adversely impact the children.

[60] The court does not find this submission to be compelling. It is contrary to the purposes of costs orders. See: Winiarz v. Anderson, supra, par. 36. It is a submission that courts often hear in custody and access disputes (and particularly in domestic violence cases). Essentially what a parent is saying in making this submission is that if you order costs against me then I am going to be very unhappy and this could lead to me engaging in conflict with the other parent – the children might be emotionally harmed. So, a parent who might have acted unreasonably to warrant a costs order uses the threat of future unreasonable behaviour as a rationale to reduce their costs. That is not the basis to reduce a costs award.

[61] What we do know will escalate conflict between parents is when one parent breaches a court's access order – particularly if the court does nothing about it.

[62] In determining entitlement to costs, the court has taken into consideration that one of the purposes of costs order is to change behaviour.

[63] Justice Paulseth already ordered costs of $1,000 on May 8, 2019 against the mother for bringing a motion without merit. The mother should have been aware of the costs consequences of unreasonable behaviour.

[64] The mother has also not paid a penny towards that costs order. Perhaps she believes that she can act unreasonably with impunity because it is a child protection case. A message needs to be sent that this is not the case.

[65] The mother has breached Justice Paulseth's costs order and has now breached the access order. A pattern is developing. Failure to order costs in this matter would be a disincentive for the mother to comply with future court orders. It would also be contrary to the primary objective set out in rule 2 to deal with cases justly.

[66] This motion was important for the respondents. It was not complex or difficult.

[67] The costs of this dispute were significantly reduced by the skill of two senior child protection counsel. The father's material precisely set out the issues and the evidence required to support his position. The mother's counsel reduced his client's costs exposure by focusing on settlement instead of preparing responding court material after the July 8, 2020 appearance. In the hands of less capable counsel, the mother's costs could have been four to five times higher than what will be ordered.

[68] The time and rates claimed by the father were reasonable and proportionate. His actual bill was just over $2,300.

[69] The court has taken into consideration that this is a child protection case.

[70] The court has taken into consideration the difficult health and safety decisions that parents are facing during the pandemic and the mother's subjective fears for the health of herself and the children.

[71] The court considered that the mother is of very limited means. The court will take that consideration into account by permitting her to pay the costs order in modest amounts over an extended period of time. However, if she defaults in payment of any of these periodic amounts, the full amount of the costs then owing shall become immediately due and payable.

[72] The court did not consider the mother's submission that the father might be on legal aid. This is not the court's business. The case law is well settled that the receipt of legal aid is not a factor in determining costs. See: Ramcharitar v. Ramcharitar; Alvarez v. Smith; Loncar v. Pendlebury, 2015 ONSC 4673; S.G. v. A.S., 2015 ONSC 1882; F.K. v. A.K. and CAS of Hamilton, 2020 ONSC 4927.

Part Seven – Conclusion

[73] Balancing all of the considerations set out above, the court orders the mother to pay the father's costs of this motion in the amount of $900.

[74] The mother may pay the costs order in the amount of $50 each month, starting on October 1, 2020. However, if she is more than 30 days late in making any payment, the full amount of costs then owing shall become immediately due and payable.

Released: August 24, 2020

Justice S. B. Sherr