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 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 of Appeal for Ontario
DATE: 20220512 DOCKET: C69786
Feldman, Pepall, and Tulloch JJ.A.
BETWEEN
Children’s Aid Society of the Region of Peel Applicant (Respondent)
and
L.M. Respondent (Appellant)
Counsel: Andrew Burgess and Jessica Gagné, for the appellant Laura Shaw, for the respondent
Heard: October 14, 2021 by video conference
On appeal from the judgment of the Divisional Court (Justices Lise G. Favreau, Thomas R. Lederer, concurring, and Robbie D. Gordon, dissenting), dated March 31, 2021, with reasons reported at 2021 ONSC 1699, setting aside the costs order of Justice David Price of the Superior Court of Justice, dated November 29, 2018, with reasons reported at 2018 ONSC 7170.
Tulloch J.A.:
[1] This appeal concerns a costs award against a Children’s Aid Society that opposed a mother’s motion for constitutional state funding for an appeal.
[2] The appellant, L.M., is a mother to three children. Her children were permanently removed from her care and placed in extended society care with no order for access. L.M. wished to appeal that decision. After L.M. was denied legal aid funding, pro bono counsel brought a motion on L.M.’s behalf for constitutional state funding. The Office of the Children’s Lawyer and the Attorney General of Ontario, who were also parties to the motion, took no position. The Peel Children’s Aid Society (“the Society”) alone opposed the mother’s motion as failing to meet the minimum threshold of “more than no merit”. L.M. was successful on the motion and costs in the amount of $12,482.49 were awarded against the CAS. On a first appeal to the Divisional Court, the majority granted leave to the CAS to appeal the costs award and then overturned it as clearly wrong.
[3] L.M. now appeals from that decision. For the following reasons, I would allow the appeal and reinstate the original costs award against the CAS in the amount of $12,482.49.
Background
[4] Beginning on December 1, 2011, L.M. was made subject to orders requiring the supervision by various Children’s Aid Societies of her two children.
[5] In April 2011, L.M. was holding her ten-month-old daughter, S.S., while simultaneously removing a hot pan of baked goods from the oven. In doing so, she accidentally burned her daughter’s face and did not take her to see a doctor until several days later.
[6] On May 16, 2016, the Society apprehended L.M.’s two children, believing the burning incident to be evidence of neglect. On May 20, 2016, an order was made placing the two children in the care of the Society, with supervised access to L.M. twice a week.
[7] On June 7, 2016, L.M. had a third child, E.M. The Society apprehended him the following day and placed him in a different foster home than that of his siblings.
[8] In June 2016, the Society moved for a status review of L.M.’s oldest child, R.D., and sought orders for extended society care for all three children, pending adoption. L.M. opposed the motion and sought the return of her children, under the Society’s supervision.
[9] In the fall of 2017, the Society moved for summary judgment seeking orders for extended society care with no order for access, since by that time the children had been in care longer than the permissible maximum periods under s. 70 of the Child and Family Services Act, R.S.O. 1990, c. C.11. The motion was heard in the Ontario Court of Justice on November 15, 2017, and summary judgment was granted on January 30, 2018. L.M. sought to appeal the decision granting summary judgment. She applied for legal aid but was denied funding by both Legal Aid Ontario’s (“LAO”) District Office and Provincial Office.
The Decisions Below
A. Superior Court of Justice
[10] L.M. brought a motion for state funding to appeal the summary judgment decision. All parties agreed on the five-part test for whether such a motion should be granted. All agreed that L.M. met the first four parts of the test:
(i) Her s.7 rights were engaged;
(ii) She could not receive a fair hearing of her appeal without the assistance of counsel given the seriousness of the interests at stake, the complexity of the proceeding, and her capacities;
(iii) She had demonstrated that she had applied for legal aid and had exhausted all possible avenues for otherwise obtaining state-funded legal assistance;
(iv) She was unable to afford a lawyer.
The only issue outstanding for the court to consider was whether L.M. met the minimal threshold of more than “no merit” to the appeal. In the unreported decision of Backhouse J. in Children’s Aid Society of Toronto v. Linda Guest, (June 11, 2014), Toronto FS-14-19235 (Ont. Sup. Ct.), she added that the court must be satisfied that the appeal has merit, but that the “merit threshold cannot be a high onus” given the unavailability of the transcript.
[11] L.M. argued there were 13 appealable errors in the decision ordering extended society care. The Society took the position that none of the alleged errors met the more than “no merit” minimal threshold.
[12] The motion judge concluded there were four potentially meritorious, appealable issues. The motion judge granted the motion and ordered state-funded counsel, transcripts, and disbursements. The motion judge also ordered a stay of further proceedings until funding was provided to L.M.
[13] At the hearing for costs of the motion, the motion judge considered the purpose of access to justice in making costs awards, particularly where the case raises claims under the Canadian Charter of Rights and Freedoms or other issues of general public importance. In this case, it was acknowledged by all that L.M. could not receive a fair hearing of her appeal without counsel, and that she could not afford counsel without state funding. The judge also determined that it was “patently clear” that L.M. had meritorious grounds for appeal, and it was therefore unreasonable for the Society to oppose her motion for state-funded counsel. Additionally, L.M. had made a reasonable offer to settle the motion, namely, to proceed with the motion on consent. The Society had rejected this offer.
[14] The judge determined that an award of costs against the Society was appropriate. It was not contrary to the prevailing case law, nor would it incentivize counsel to take on unmeritorious cases at the appeal stage.
[15] Accordingly, the judge imposed a costs award against the Society in the amount of $12,482.49.
B. Divisional Court
[16] The Society appealed the costs order to the Divisional Court, where the majority allowed the appeal.
[17] On the appeal, the Society alleged three errors in the costs decision below: first, in the finding that the Society actually opposed the motion; second, in the finding that the Society’s position on the motion was unreasonable; and third, in taking into consideration the offer to settle to award increased costs from the date of the offer to settle.
[18] Based on a review of the transcripts, the majority did not accept the Society’s assertion that it had not taken a position on the issue of whether the appeal had more than “no merit”.
[19] The majority of the Divisional Court did, however, go on to accept the Society’s arguments that the court was clearly wrong to find its conduct unreasonable and also clearly wrong to take into account its refusal to accept L.M.’s offer to bring the motion on consent.
[20] In their view, the motion judge correctly articulated the test for awarding costs against the Society, but was clearly wrong in applying it to the facts of this case.
[21] Rule 24(2) of the Family Law Rules, O. Reg. 114/99 provides that the presumption that a successful party to litigation is entitled to costs does not apply in the context of a child protection case. However, this does not mean that a child protection agency is immune from having to pay costs. As correctly pointed out by the motion judge:
[T]he 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. 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 an unfair and indefensible manner. A society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it difficult to weigh and balance the evidence and predict the outcome. That said, the society is not exempt from costs, which may be imposed on it where it has acted unreasonably. If a society acts unreasonably in the conduct of its litigation, it should enjoy no special protection as to costs.
[22] In the majority’s view, it was clearly wrong to fault the Society for not accepting the offer that the motion proceed on consent given that the issue of state funding for child protection is not one that the Society alone can resolve. Since L.M. would still have had to satisfy the court that her appeal had more than “no merit”, conceding this point would only have shortened the argument on the motion. It was therefore, in the majority’s view, an error in principle for the motion judge to find that the Society acted unreasonably in not accepting the offer to settle. It was also clearly wrong to find the Society’s action in opposing the motion for state-funding unreasonable where taking a position on the merits of the appeal falls within the Society’s mandate and given the significance of including a merits component in the test for state-funding. The majority of the Divisional Court contrasted this case with others in which the Society withheld relevant documents or was slow to disclose relevant information. Taking a position on the merits – even an overly stringent position – was, in the majority’s view, consistent with the Society’s statutory role of protecting children.
[23] The majority concluded that there was therefore no basis in this case for finding that the Society’s conduct was unreasonable or unfair, and that the motion judge’s decision to award costs against the Society was clearly wrong.
[24] The dissenting judge disagreed on a number of bases. Whether or not the motion was granted was of little direct consequence to the agency. There was nothing to suggest that the appeal would not have proceeded even without funding for counsel for the mother. And yet, the Society contested the motion and did so by arguing the appeal was without merit. The motion judge, in his discretion, found it was unreasonable for the Society to have done so. While one may agree or disagree with that decision, it was not plainly wrong.
[25] In the dissenting judge’s view, the offer for the motion to proceed on consent was also properly considered by the motion judge: its essence was to establish before the court that all parties agreed the test for constitutional state-funding had been met. The Society decided not to agree to this when it clearly ought to have.
[26] The motion judge was also clearly right to find that the Society’s position that the appeal was entirely meritless was unreasonable.
[27] However, the dissenting judge would have reduced the costs award to $2,500.
C. Court of Appeal
[28] L.M.’s appeal of the summary judgment decision was partially successful, and the no-access order was overturned: L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18. In that matter, the court awarded costs against the Society in the amount of $10,000: “[L.M.] was entirely successful on the appeal of the access order and partially successful on several points of law as to the Crown wardship determination”: at para. 92.
Analysis
[29] There is a single issue to be determined on this appeal: did the majority of the Divisional Court err in setting aside the motion judge’s costs order?
[30] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, gives the court discretion to determine the costs of the proceeding. Here, the Family Law Rules applied on the motion.
[31] Under those Rules, the general presumption is that a successful party is entitled to its costs: r. 24(1). However, Children’s Aid Societies are treated distinctly from other parties in a family law proceeding. Section 24(2) provides that the presumption of costs to the successful party does not apply in a child protection case or to a party that is a government agency. At the same time, s. 24(3) empowers a court with discretion to award costs to or against a party that is a government agency, whether or not it is successful.
[32] The jurisprudence elaborates on the proper exercise of this discretion. Children’s Aid Societies are presumptively protected from costs awards in order to encourage them to act in the best interests of the child. As Chappel J. explained in Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679, at para. 13:
The special approach to costs claims against Children’s Aid Societies recognizes the extremely important and difficult task which those agencies are entrusted with, and the challenging judgment calls which child welfare professionals must make on a regular basis in carrying out their mandate to protect children. Child protection staff must be encouraged to err on the side of caution in favour of protecting children in situations where they have reasonable grounds to do so, without having the added burden whenever they are required to make difficult judgment calls of having to embark upon a taxing cost/benefit analysis as to whether they can financially afford to protect the child in question.
[33] Justice Chappel went on to summarize the general principles animating costs against a Children’s Aid Society, at para. 14:
Child protection agencies do not enjoy immunity from a costs award.
However, 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.
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.
The high threshold of “bad faith” is not the standard by which to determine a claim for costs against a child protection agency.
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.
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.
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.
[34] In making a costs decision, as in all family law decisions, the court must bear in mind the primary objective of ensuring the case is dealt with justly: Family Law Rules, s. 2(2). Rule 2(3) further elaborates. Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties, (b) saving expense and time, (c) dealing with the case in ways that are appropriate to its importance and complexity, and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
[35] The majority of the Divisional Court overturned the motion judge’s costs award for two reasons: 1) it was an error for the motion judge to find that the Society had acted unreasonably by not accepting the offer to settle and 2) it was clearly wrong to find that the Society had acted unreasonably in taking the position that the mother’s appeal did not meet the minimal threshold of more than “no merit”.
[36] In my view, the majority erred in both respects.
(1) The offer to settle
[37] Rule 18(16) explicitly permits a court to consider any written offer to settle in exercising its discretion over costs. Here, the motion judge was entitled to consider the Society’s rejection of L.M.’s offer for the motion for constitutional state funding to proceed on consent.
[38] This case is not analogous to Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, cited by the respondent. In that case, the appellant pleaded a constitutional claim. In the course of the proceedings, the respondent made an offer to settle which would have required the appellant to abandon his constitutional argument. The court held that the motion judge gave undue weight to the offer: the offer did not contain a true element of compromise because it required the appellant to abandon his constitutional argument.
[39] Here, in contrast, as the dissenting judge correctly observed, whether the motion was granted was of little direct consequence to the Society. The appeal would almost certainly have proceeded in any event. There was therefore no efficiency inherent in opposing. L.M. had a statutory appeal as of right: Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1, s. 121(1).
[40] Consenting to the funding would also have had no effect on the Society’s position on the appeal. There is no implication that an appeal that has more than “no merit” is meritorious.
[41] Where, as here, it is established both that the individual has exhausted all other avenues for obtaining state funding and that they could not receive a fair hearing of their appeal without the assistance of counsel given the seriousness of the interests at stake, the complexity of the proceeding, and their capacities, consenting to state funding of the appeal is consistent with the Society’s mandate to protect children. By definition, a fair hearing is fair to all.
[42] The Society’s consent would also have furthered the Family Law Rules’ primary objective of ensuring a fair procedure to all parties in a way that is appropriate to the importance and complexity of the issues. As noted by the Supreme Court in New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, at para. 46: “Few state actions can have a more profound effect on the lives of both parent and child. Not only is the parent’s right to security of the person at stake, the child’s is as well.”
[43] That the decision to grant funding was not in the Society’s discretion, but rather in the court’s, was in my view irrelevant to whether the Society could agree to the terms of the offer: it clearly could have.
[44] In my view, there was no error in the motion judge’s finding that the Society had acted unreasonably by not accepting the offer to settle. The majority of the Divisional Court erred in my view in concluding that the motion judge was clearly wrong.
(2) The reasonableness of the CAS’s position on the merit threshold
[45] The majority of the Divisional Court held that the Society is statutorily required to take a position on the merits and that its position in this case was not sufficiently unreasonable or unfair to warrant costs.
[46] I would disagree. In my view, the Society’s position that L.M.’s appeal did not meet the minimal more than “no merit” test was patently unfair. It is true that L.M.’s appeal of the extended society care order had very little chance of success and may even have failed to meet the more than “no merit” test. However, the appeal of the “no access” order was entirely different. There was no suggestion of ill-intent by the mother, and minimally-intrusive forms of access – such as an exchange of gifts, cards, or letters – had not even been considered in the original decision. In those circumstances, it could not be said that the request for access could not meet the merits threshold. A consideration of access is in the children’s best interests and so squarely within the Society’s mandate.
[47] For all these reasons, I see no error in the motion judge’s decision to award costs in the amount that he did.
Conclusion
[48] I would allow the appeal and reinstate the original costs award against the CAS in the amount of $12,482.49.
Released: May 12, 2022 “K.F.” “M. Tulloch J.A.” “I agree. K. Feldman J.A.” “I agree. S.E. Pepall J.A.”
