Court File and Parties

Date: July 7, 2023 Court File No.: C20619/18 Ontario Court of Justice

Between:

Catholic Children’s Aid Society of Toronto, Applicant Counsel for Applicant: Karen Ksienski

- and –

C.P.I. and R.S., Respondents Counsel for Respondent C.P.I.: Olivia Oprea, duty counsel Counsel for Respondent R.S.: Lauren Israel

Heard: June 29, 2023

Before: Justice S.B. Sherr

Costs Endorsement

Part One – Introduction

[1] On June 29, 2023, the court heard D.S.’s (the father’s) motion to travel with his eight-year-old son (the child) outside of Canada for three weeks this summer. He sought orders dispensing with C.P.I.’s (the mother’s) consent to obtain or renew passports for the child and her consent for him to travel internationally with the child. His motion was supported by the Catholic Children’s Aid Society of Toronto and counsel for the child. The mother consented to this relief at the hearing of his motion.

[2] The father sought his costs of $1,000. The mother asked that no costs be ordered. This is the court’s decision.

Part Three – Entitlement to costs

[3] 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, O. Reg. 114/99 (all references to the rules in this decision are to the Family Law Rules).

[4] 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.

[5] 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.

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

[7] In Children's Aid Society of Ottawa v. S. (D.), (2003), O.J. 945 (Ont. Div. Ct.), 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.

[8] In Children and Family Services for York Region v. S. (A.), (2010) 2010 ONSC 1287, O.J. 872 (Sup. Ct.), 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.

[9] 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.

[10] Many courts have applied this high threshold in denying costs claims made by parents (or caregivers) against other parents. 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] In Children’s Aid Society of Toronto v. C.B., 2020 ONCJ 369 where one parent was breaching and frustrating an access order to the other parent, this court found that, in these circumstances, imposing this high threshold was 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 was 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 mirrored 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.

c) It was important to send the message to parents that unreasonably breaching access orders in a child protection case will have costs consequences.

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 was an important tool to discourage future breaches of access orders.

[37] This court found in C.B. that 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.

[38] This case bears similarities to C.B. The father and the mother have been involved in high conflict litigation with each other and the society for several years. The child has been in the care and custody of the father since November 2022. The child is presently estranged from the mother. The travel issue was between the father and the mother. It mirrored an issue we often see in domestic disputes. The father asked the mother for a travel consent in a timely manner. The mother chose to ignore his requests. She was present at court during the previous appearance when the father had requested a motion date if she failed to provide her consent. She still ignored him. The father was unnecessarily put to the cost of having to bring this motion.

[39] As in C.B., this is a situation where the father should only have to demonstrate unreasonable behaviour by the mother to be entitled to costs. The court finds that the father easily met this threshold and is entitled to his costs. It is important to send the message that just because they are in a child protection case, a parent will not be insulated from costs if they unreasonably withhold a travel consent from the other parent.

Part Three – The amount of costs

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

[41] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.

[42] 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.

[43] This motion was important to the father. It was not complex or difficult.

[44] The father acted reasonably by giving the mother sufficient notice of the proposed vacation and by trying to resolve the issue out of court.

[45] The mother submitted that she was not unreasonable – that she was self-represented and wanted to obtain legal advice from duty counsel at court before providing her consent. She said that once she received this advice she consented to the trip.

[46] The court does not accept this submission. The mother has been represented throughout most of these court proceedings. The case has been ongoing with her three children since 2018. She is not a stranger to the litigation process and knows how to obtain legal advice. She chose to ignore the father’s reasonable requests for the travel consent. She has an acrimonious relationship with the father and is estranged from the child. She expressed her anger at them by attempting to frustrate their travel plans and by making the father incur court costs. This was unreasonable behaviour and bordered on bad faith.

[47] Recently, in Blackman v. Zanre, 2023 ONCJ 220, a non-child protection case, this court addressed the issue of costs on a similar travel motion where the father unreasonably waited until the return of the motion to provide his consent. The court ordered him to pay the mother $2,500 plus HST for her costs. This court wrote that this was its usual “going rate” for parents who unreasonably withhold travel consents.

[48] The mother is fortunate that the father is only seeking $1,000 for his costs. The court finds that this amount is reasonable and proportionate.

[49] The mother submitted that she cannot afford to pay the costs sought by the father. This is a consideration in costs cases. See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.). 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 pars. 7-13). Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v. Balsmeier, 2016 ONSC 3485.

[50] The mother earns limited income. However, she is also not paying any child support to the father. The court will take her financial circumstances into consideration by permitting her to pay the costs over a reasonable time frame.

Part Four – The order

[51] The mother shall pay the father’s costs of his motion fixed at $1,000, inclusive of fees, disbursements and HST.

[52] The mother may pay this costs order at the rate of $200 each month, starting on August 1, 2023. However, if she is more than 30 days late in making any payment the entire amount of the costs then owing shall immediately become due and payable.

[53] The court thanks duty counsel for her professional assistance to the mother.

Released: July 7, 2023 Justice Stanley B. Sherr