Court File and Parties
COURT FILE NO.: FSA-256-18 DATE: 2019-02-26
WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
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.
(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.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Children’s Aid Society of the Regional Municipality of Waterloo Applicant (Respondent on Appeal)
AND:
M.T., Respondent (Appellant on Appeal) C.T.C. & A.L., Respondents (Did not appear) T.N. (Non-Party on Appeal)
BEFORE: The Honourable Madam Justice L. Madsen
COUNSEL: Ms. Cheryl Buehler, Counsel, for the Respondent CAS of Waterloo Ms. Anna Towlson, Counsel, for the Appellant M.T. Mr. Patrick Brohman, Counsel for the Non-Party on Appeal
COSTS ENDORSEMENT
[1] This costs endorsement relates to the child protection appeal heard September 14, 2018, for which my Judgment and Reasons were released on October 29, 2018.
[2] The non-party foster parent, T.N. seeks costs against the respondent maternal grandmother, M.T., in the amount of $3,759.70, being partial recovery costs to the date of her offer to settle, and full recovery costs thereafter.
[3] For the reasons which follow, this court declines to order costs against the respondent maternal grandmother.
BACKGROUND
[4] The proceedings in this matter involve a Status Review Application commenced by the Children’s Aid Society of the Region of Waterloo (the “CAS” or the “agency”). The Status Review was amended on October 7, 2015, requesting an Order that the child L.T. be made a Crown Ward without access. The maternal grandmother was added as a party by Order dated January 12, 2016.
[5] On September 6, 2017, the Court heard a Motion for Summary Judgment brought by the CAS. In her reasons for Judgment released November 14, 2017, Madam Justice Oldham granted the Society’s Motion that the child be made a Crown Ward and ordered a focused hearing on the maternal grandmother’s access to the child. She found that there was insufficient evidence regarding whether the access between the child and the maternal grandmother was meaningful and beneficial to the child and no evidence before her from the foster parent regarding whether access to the maternal grandmother would impair adoption.
[6] The foster parent then brought a motion for expanded participation rights pursuant to section 39(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as am. (CFSA). On April 4, 2018 Justice Oldham granted T.N. expanded participation rights including the right to disclosure of the CAS file (except the kinship assessment), and the right to attend trial, cross examine witnesses, present evidence, make submissions, and to participate in argument about the admissibility of evidence.
[7] The respondent maternal grandmother appealed the order granting expanded participation rights.
[8] This court dismissed the appeal. This court found that Justice Oldham demonstrated that she was aware of the relevant factors to consider; that she reasonably applied those factors; that she provided clear, detailed and articulate reasons supporting the exercise of her discretion; and that she reasonably concluded that in this case the appropriate balance was to permit rights of disclosure and expanded participation for the foster parent.
[9] It is in this context that the foster parent now seeks costs of the appeal as against the maternal grandmother.
LAW AND ANALYSIS
[10] Modern Ontario costs rules are designed to foster four fundamental purposes: to partially indemnify the successful litigant; to encourage settlement; to discourage and sanction inappropriate behaviour by litigants; and, to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules. Serra v. Serra, 2009 ONCA 395; Mattina v. Mattina, 2018 ONCA 867.
[11] Under Rule 24(1) of the Family Law Rules, a successful party is presumptively entitled to costs. A consideration of success is therefore the starting point in determining costs. Under Rule 24(2), however, this presumption expressly does not apply in child protection cases.
[12] This court has held that by virtue of section 79(3) of the CYFSA [formerly section 39(3) of the CFSA] and the Court’s inherent jurisdiction to control its own process, the court has jurisdiction to determine costs as against a non-party, where the non-party is a foster parent who has been granted expanded participation rights. See C.A.S. of London and Middlesex v. T.A.N.B. and D.A., 2010 ONSC 2902 decided by Justice Harper where he found that the foster parents were parties “in every respect except for the name.” See para. 24.
[13] The case law under Rule 24(2) regarding costs in the child protection context establishes that cost orders are rare, reserved for cases where condemnation of conduct is required, and that the right to oppose a child protection proceeding should not be lightly interfered with. In my view, those principles apply equally whether the costs sought are as against a party or as against a non-party who has been granted expanded participation rights. The overriding objective is the same: to allow vigorous presentation of any participant's case in the child protection context, provided that he or she is acting in good faith.
[14] The Ontario Divisional Court has held that Rule 24(2) applies not only to costs between a respondent and a Children’s Aid Society, but also between respondents in a child protection case. The Court stated:
…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 this case, the father's appeal raised genuine issues and was not devoid of merit, nor did he behave unreasonably in his capacity as a litigant on the appeal.
No order as to costs.
S.(D.), Re., 2003 ON SCDC 88994, 2003 CarswellOnt 898 at para. 5. [Emphasis added]
[15] In other words, as between respondents, mere success in a child protection case will not necessarily trigger an award of costs against a respondent who took an opposing position.
[16] Similarly, Justice McGee stated as follows in Children and Family Services for York Region v. A.S., 2010 ONSC 1237 at para. 16, affirmed :
Parents 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.), 2005 ONCJ 500.
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 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. [emphasis added]
[17] This court finds that it is not appropriate to order costs against the respondent maternal grandmother in relation to this child protection appeal, for the following reasons:
a. In this case, although the foster parent is not a party, she was granted expansive participation rights, comparable to the rights granted to the foster parent in T.A.N.B. The public policy rationale for how the court addresses costs is thus comparable to other child protection cases where costs are assessed squarely under the Rules; b. A claim of costs by the non-party foster parent against the maternal grandmother is analogous to a costs claim between respondents, as set out above; c. Although the foster parent’s position was successful on appeal and the maternal grandmother’s was not, there must in this context be something “more than merely the outcome” of the appeal to trigger an award of costs; d. While the issues raised were not “novel” as asserted by the maternal grandmother (given, in particular, the appellate caselaw on the issue of when courts will grant expanded participation rights), neither was the case law “unequivocal” as asserted by the foster parent. As noted in the appeal decision, there are cases in which expanded participation rights have been denied to foster parents, particularly at earlier stages of the proceeding; e. The grandmother’s appeal also raised a genuine issue regarding what she saw as the “alignment” of the foster parent’s position with that of the agency and the potential impact of that alignment on the decision to allow expanded participation. While Justice Oldham had found that the foster parent could offer more specific evidence regarding the best interests of the child and potential impairment of adoption in the event of access, she also commented that the positions of the agency and the foster parent appeared to be “aligned;” f. There is insufficient evidence to find that the grandmother acted unreasonably or in bad faith. Her appeal was not “excessive” or “disproportionate” to the issues involved. The appeal materials were measured and reasonable, and the appeal was argued expeditiously. That she was not successful does not mean that the appeal was brought unreasonably; g. This case is distinguishable from the case of T.A.N.B., discussed above. In that case Justice Harper awarded significant costs to the non-party foster parent as against the Children’s Aid Society where the Court concluded that the agency had conducted its case in an unreasonable manner. I have already found that the maternal grandmother did not act unreasonably.
[18] This Court finds that is not the “rare” case warranting a cost consequence in the child protection context.
CONCLUSION
[19] There shall be no Order as to Costs.
