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.
Court File and Parties
COURT FILE NO.: FC-18-CP42 DATE: 2019/04/15 ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF D.S., born XX, 2008, O.S., born XX, 2011, and X.S., born XX, 2013
BETWEEN:
Children’s Aid Society of Ottawa-Kanata Applicant – and – B.S. (Mother) Respondent D.S. (Father) Respondent
Counsel: Mark Hecht, for the Applicant Self-represented, for the Respondent Mother Giulianna Ferri, for the Respondent Father
HEARD: In Writing (at Ottawa)
DECISION ON COSTS
LINHARES DE SOUSA J.
[1] The Respondent-father, DS, seeks his costs in this matter against the Respondent-mother, BS, who contests DS’s requests for costs.
[2] The Society does not seek costs.
[3] The presumption, found in Rule 24(1) of the Family Law Rules, that the successful party in a litigation is presumptively entitled to her or her costs, does not usually apply to child protection cases (see Rule 24(2)).
[4] However, a Court may exercise its discretion and order such costs between parents if it determines that it is appropriate in all of the circumstances of the case. I conclude that this is one such case.
[5] In awarding costs against another parent in a child protection matter, the courts have considered the following factors, which are also provided for in the Family Law Rules:
- whether a party has acted in bad faith;
- whether a party has acted unreasonably, such as advancing meritless arguments and failing to genuinely attempt to resolve matters;
- whether there is unreasonable conduct so excessive as to warrant condemnation; and
- whether a party acted in a manner disproportionate to the issues.
[6] As one can see from the final decision in this matter and from an examination of this long litigation, BS, in one way or another, has engaged in all of the negative conduct mentioned above. More significantly, in so doing she has made the father incur significant court costs, not to mention the psychological and emotional costs that she visited on DS, as well as the children, who are the subject of these proceedings. A restraining order against her was a required part of the final order granted in this matter.
[7] Examples of her conduct that in my view justify an order of costs against her are the following:
- from the very beginning of the child protection proceedings she refused to cooperate with any of the parties and took the position that she was in the right and everyone else was in the wrong. She refused to continue with supervised access and insisted on unauthorized access contrary to court orders and as she chose to exercise it;
- she did not cooperate with the service process so an alternative method of service had to be sought from the court;
- she failed to show up at court proceedings or did not file the necessary documents contrary to the Family Law Rules;
- she ignored and defied court orders, spawning needless and costly enforcement court proceedings, including the involvement of the police at the children’s home; and
- she failed, in the final adjudication of this matter, to address the protection concerns in this case. She even refused the suggestion to have the matter assisted by a parenting assessment.
[8] There is no question that the litigation in this matter has been unnecessarily lengthened and delayed as a result of BS’s conduct and the way she has chosen to conduct herself in this matter.
[9] I have considered the various factors enumerated in Rule 24 (12). I have considered the importance and complexity of the issues. Cases involving the best interests of children are always important and when one party prolongs and attempts to obstruct the process, as BS has done in this matter, that conduct must be taken into account.
[10] I have examined the bill of costs of DS’s counsel and find it reasonable, in view of the multiple and costly proceedings that had to be taken to deal with BS’s unreasonable behavior throughout the litigation. DS’s counsel did attempt to resolve the motions by suggesting that the parties participate in a Family Court Clinic Assessment, approximately one month before the motions, which offer BS refused.
[11] The time for BS to serve and file her costs submissions have well expired and I have received no material from her on this issue.
[12] For all of these reasons, I order BS to pay DS’s costs in these proceedings which I fix at $16,000.
Madam Justice Maria Linhares de Sousa
Released: April 15, 2019
COURT FILE NO.: FC-18-CP42 DATE: 2019/04/15
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 AND IN THE MATTER OF D.S., born XX, 2008, O.S., born XX, 2011, and X.S., born XX, 2013
BETWEEN:
Children’s Aid Society of Ottawa-Kanata Applicant – and – B.S. (Mother) Respondent D.S. (Father) Respondent
costs decision Linhares de Sousa J.
