WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The court may make an order,

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

where the court is of the opinion that . . . publication of the report, . . ., 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.

45.— (8) Prohibition: 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.

45.— (9) Idem: order re adult.

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.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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

Ontario Court of Justice

Date: January 21, 2014

Court File No.: Halton C220/13

Between:

Children's Aid Society, Region of Halton Applicant

— AND —

J.S. and D.S. Respondents

Before: Justice Roselyn Zisman

Heard: By written submissions

Reasons for Judgment released on: January 21, 2014

Counsel

• Lucia Spampinato — counsel for the applicant society
• Kathryn Junger — counsel for the respondent J.S.
• D.S. — self-represented
• Geoffrey Carpenter — counsel for the Office of the Children's Lawyer, legal representative for the child Lu.S.
• Mark Demeda — counsel for the Office of the Children's Lawyer, legal representative for the child M.S.

Endorsement on Costs

Zisman J.:

Introduction

[1] This matter arises from a temporary care and custody motion heard before me on September 23 and 24th, 2013. I released reasons for judgement placing the child L. aged 6 and Lu.S. aged 12 in the care of the respondent J.S. ("mother") and placing the child M.S. aged 15 in the care of the respondent father D.S.("father") subject to extensive terms of supervision.

[2] The mother seeks costs against the father on a full indemnity basis in the amount of $21,123.63 based on the unreasonable position taken by the father that significantly contributed to the cost, duration and extent of the temporary care and custody motion and the work that the mother's counsel was as a result required to do to respond to the father's response to the society and his cross-motion.

[3] The father is presently self-represented and submitted in his response that he should not be required to pay any costs due to the nature of child protection proceedings. The father was represented by counsel, Brian Ludmer, from the first court attendance up to and including the temporary care and custody motion.

[4] Counsel for the society and counsel from the Office of the Children's Lawyer do not seek costs from either party and take no position on the issue of the mother's requests for costs from the father.

Background

[5] A brief review of the background is necessary to put the position of the parties into perspective. The parties separated in 2011 and were embroiled in a high conflict separation. On February 29, 2012 an order was made in the Superior Court of Justice that confirmed the status quo residential arrangements namely that both younger children remain in the care of the mother and that M.S., the older child remain in the care of the father. An order was made for specified access between Lu.S. who was 10 years old at the time and the father. Since the separation Lu.S. had been refusing to see his father and M.S. was estranged from his mother.

[6] Shortly after this court hearing, the mother made allegations against the father with respect to historic assaults and the father was criminally charged. The father's terms of release stipulated that he was not to have contact with the mother directly or indirectly. The father was then charged with a failure to comply with this term by contacting the mother. The criminal charges have not yet been dealt with.

[7] The society had previously been involved with the family on a voluntary basis since 2008 due to multiple investigations regarding physical harm due to inappropriate discipline by the father, exposure of the children to domestic violence and conflict and concerns about the caregiver's emotional and mental health problems interfering with their ability to care for the children. There were concerns about both parents inappropriately involving the children in their conflict. There were also concerns about the oldest child's aggressive behaviour and his attempted suicide.

[8] The society commenced a protection application in May 2013 seeking a finding that the children were at risk of emotional and physical harm with extensive terms of supervision but with M.S. remaining in the care of the father and the other two children in the care of the mother.

[9] At the first appearance a timetable was set for the filing of materials for the temporary care and custody motion that was scheduled to proceed on July 19, 2013. The motion could not proceed on that date due to a lack of time. On consent an order was made for the appointment of separate counsel for the two older children and after hearing submissions an order for summer access. In order to break the impasse with respect to Lu.S. still refusing to have any contact with the father an order was made for the mother to bring him to the society's offices for a minimum of 30 minutes once a week to be increased or decreased in accordance with the child's wishes and in consultation with his counsellors. Further orders were made with respect to access for the other children and with stipulations and restrictions on the parents' communication, attendance at extra-curricular activities and prohibiting the father from further video and audio recording of the children at pick up and drop offs.

[10] The temporary care and custody motion was again adjourned to August 22, 2013 but as father's counsel submitted he needed a full day to argue the motion it was again adjourned to September 23, 2013. Despite the order that no further affidavits were to be filed, father's sought to file three further affidavits. I permitted the affidavits to be filed over the objections of counsel for the society and the mother in view of the nature of the proceedings and concern that the court was obligated to have all relevant materials before it relating to any risks and safety concerns about the children.

[11] The father initially filed a cross-motion requesting an order that M.S. remain in his care and that the other two children be placed in the joint and shared care of both parents. He proposed that their time with him be gradually increased so it became an equal shared schedule.

[12] It was not until the commencement of the hearing of the motion that he changed his position and agreed that the children's primary residence not be changed and agreed in principle with many of the terms of supervision. However, it was his position that his access should be in accordance with the outstanding February 29, 2012 order in the domestic proceedings. He wanted the mother "to prove what guidance, boundaries and consequences she has used to ensure that Lu.S. went to see his father". He submitted that the mother should be warned that this was her last chance to encourage Lu.S. to see his father and if she did not do so, then custody should be changed. He further took the position that the only risk of harm was with respect to the mother's systematic and deliberate alienation of Lu.S. from him. He denied that he had ever been physically or emotionally abusive to any of the children. He also accused the society of conducting an incomplete investigation.

[13] The mother took responsibility for her role in the facts contained in the protection application, she agreed with the position of the society regarding where the children should reside and was generally agreeable to the terms of supervision. The majority of her materials were in response to the countless accusations made against her by the father. The mother did not request a contested temporary care and custody motion hearing, the father did.

[14] The temporary care and custody motion was argued for the full day on September 23rd and continued for another half day on September 24th. The father filed five affidavits of his own and six affidavits from third parties and three very large books of authorities. The mother filed two affidavits and the society filed two affidavits. I released my decision on November 1, 2013.

[15] At paragraphs 105 and 106 of the judgement I made the following findings:

I find that both parents love their children and want the best for them. However, their ongoing marital conflict has morphed into a situation that has required the society to commence child protection proceedings to attempt to shield the children from any further emotional harm. I find that the mother sincerely wishes to normalize her relationship with M.S. so that he can spend time in the home with her and his brothers and that he receives the help he needs for his mental health issues and that he is successful in school. I also find that the mother wishes that the father's relationship with Lu.S. is normalized.

However, unless and until the father stops his incessant crusade against the mother and stops speaking about the mother's past transgressions, I do not see how this family will move forward regardless of the number of conditions that are put in place. Although the mother is not blameless, I find that she tends to react to the father's accusations and is under such enormous strain that again is in large part caused by the father's aggressive and relentless behaviour in blaming her for all that has gone wrong in his relationship with Lu.S.

[16] I further noted that in order to be even-handed the society proposed many mutual terms of supervision although it was evident from the evidence presented that generally the terms were necessary to control the father's conduct. As the mother agreed to the terms they were made mutual.

Position of the Mother and the Father

[17] On behalf of the mother it is submitted that if the father had been reasonable the parties with the assistance of their counsel and the society's counsel could have worked out the terms of supervision. Society counsel submitted that it was in the unusual position of proposing very specific access and communication provisions in the supervision terms but the society was not so much concerned about the exact days or times of access visits but the fact that any order be detailed and specific to decrease the conflict and disagreements between the parties.

[18] The father submits that a hearing was necessary as prior to the hearing he had not seen his son since November 2011 and that it was only as a result of the society and the temporary order made by the court that his access began.

[19] In the father's costs submissions, for about 7 pages he refers to various events since the temporary care and custody motion and alleges the mother is not complying with the access order. He improperly refers to discussions at the settlement conference in the Superior Court of Justice that is dealing with the financial issues between the parties. He also reviews much of the past history and all of his past efforts to resolve the issue of Lu.S.' refusal to see him and blames the mother and her counsel for alienating Lu.S. from him. In effect, he again is arguing his case that the mother is alienating Lu.S. from him and she is totally to blame for his current estrangement. He ignores the findings of fact made in the judgment. I have disregarded all of these submissions as they are irrelevant to the issue of costs and are simply a rehashing of many of the allegations that he and his counsel relied on during the temporary care and custody motion and ignores or refuse to accept the findings of fact made in the judgement.

Applicable Statutory and Legal Principles

[20] Subrule 24(2) of the Family Law Rules states that the presumption that a successful party is presumed to be entitled to costs does not apply to the successful party in child protection proceedings.

[21] However, that does not preclude an order for costs being made in exceptional and unusual circumstances.

[22] In Children's Aid Society of Ottawa-Carleton v. S., the Divisional Court considered the issue of whether costs could be ordered in favour of one parent against the other in a child protection appeal. Similar to the facts of this case, the society did not ask for costs and the mother had adopted the position of the society and the society was successful in obtaining the order it sought. At paragraphs 3 to 7 the court held as follows:

The rationale for making child protection cases an exception to the presumptive entitlement to costs stem from the fact that a children's aid society has a statutory obligation to initiate and pursue proceedings if there is a reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations. Parents, on the other hand, are generally insulated from claims for costs in such proceedings because when faced with state intervention in the care and upbringing of their children, they have a right to force the state to prove its case and should not be penalized in costs. See Children's Aid Society of Ottawa-Carleton v. V. (2001), 105 A.C.W.S. (3d) 885, [2001] O.J. No. 2147 (Ont.S.C.J.).

In this case, the costs issue is not as between the children's aid society and a parent, but rather as between the two parents. Subrule 24(2) certainly shields the father from any costs which might be claimed by the society. The issue is whether it necessarily shields him from responsibility for the mother's costs. As between the father and the mother, the mother was "successful" because she supported the disposition of the trial judge which was upheld.

However, 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.

[23] In the case of Children's Aid Society of Ottawa v. K., Justice Linhares de Sousa considered the claim for costs by a father against the mother in a child protection proceeding and held that costs were payable based on a finding that the mother's conduct either constituted bad faith or bordered on it. As in this case, the society had become involved with the family as a result of an out of control matrimonial conflict. Although the court held that both parents had contributed to that conflict, the court held that the mother's behaviour had intensified and prolonged the proceedings. The court stated at paragraph 5 as follows:

From the commencement of these proceedings and in how the parties have dealt with each other, the conduct of both parties has been less than exemplary for their children and certainly not in the best interests of their children. Their out of control matrimonial conflict created the need to have the involvement of the Children's Aid Society in the first place. Both parties contributed to their sorry matrimonial situation. Nonetheless, for the reasons I gave in both my decisions of April 13, 2005, and September 25, 2003, Ms. K., in the intensity of her conflict with her husband, has consistently conducted herself throughout the child protection proceedings in an un-cooperative and obstructionist manner. She has been disrespectful of court orders and has disregarded them if she has not agreed with them. Her behaviour has necessitated the bringing of court proceedings and has prolonged them. More importantly and seriously, she has actively involved her children in the parties' matrimonial conflict and continues to do so. She continues to have very little insight into her own conduct, which can only be described as unreasonable and if not in bad faith certainly bordering on it.

[24] In the case of Children's Aid Society of Simcoe County v. C.S., Justice Olah considered a claim for costs by one parent against the other in the context of a contempt motion in a child protection proceeding. In awarding costs against the father, at paragraph 9 the court held:

for one parent to collect costs against the other in a child protection case, there must some degree of unreasonableness or meritless argument, or some other exceptional element present.

[25] In cases where the court has declined to order costs between parents, the court has emphasised the principle that parents are not ordinary litigants in child protection proceedings and are entitled to require that the society prove its case. In the case of Children's Aid Society of Niagara Region v. L.J.R., Justice Scime declined to order costs to the mother against the father on the basis there was no bad faith. At paragraph 9 of the judgment he stated as follows:

The father was not an ordinary litigant protecting a property or financial interest. He was faced with state intervention in the care and upbringing of his children and had the right to compel the society to prove its case and he should not be penalized in costs for exercising that right.

I do not find that the father acted in bad faith in filing his answer and care plan.

[26] The oft-quoted passage in Kenora-Patricia Family Child & Family Services v. M.A. dealing generally with costs in child protection proceeding is applicable to costs as between parents. Costs should not be awarded against a parent except in unusual or exceptional circumstances, 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.

[27] The case law therefore supports the proposition that parents should be entitled to vigorously oppose and defend themselves in a child protection proceeding without the fear of cost sanctions. However, parents 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.

Analysis

[28] In my reasons I found that the father did not accept any responsibility for his conduct that resulted in his estrangement from Lu.S. or that necessitated the society commencing a child protection proceeding. I found that there was evidence that the father had physically harmed the children and had involved them in the domestic conflict. The entire premise of the father's position in these proceedings to date has been to blame the mother entirely for alienating Lu.S. from him and to blame the mother entirely for any emotional abuse caused to the children. Although I found that the mother had caused emotional harm to the children by exposing the children to the conflict between the parents and by making inappropriate comments about the father, the mother accepted responsibility for her actions and was prepared to agree to a temporary order of supervision. I found that there was no basis for the father's allegations and accusations that the mother was totally to blame for the circumstances that resulted in the necessity of child protection proceedings.

[29] Father's counsel filed excessive and repetitive affidavits that mother's counsel was required to review and respond to. He changed his position at the commencement of the motion and then due to the nature of his allegations still caused a protracted temporary care and custody motion. Both his materials and submissions were out of proportion to the nature of the relief being requested by the society and which was agreed to by the mother.

[30] It is important to note that at the attendance on July 19, 2013 I ordered that access between the father and Lu.S. begin. I therefore reject the father's submission that the temporary care and custody motion was necessary in order for him to have access to his son. It is the father and his counsel who insisted that there be a contested temporary care and custody motion. I agree with the submission of mother's counsel that the terms of a temporary supervision order could have been negotiated. With respect to the issue of the father's access to Lu.S., the temporary order made simply continued the terms of access made on July 19, 2013. There was no necessity for such a protracted temporary care and custody motion. The father used the motion to continue his unwarranted attack on the mother and as a platform to continue his accusations that she was alienating Lu.S. from him.

[31] I find that this is an exceptional case where the father cannot and should not be isolated from costs. His course of conduct was unreasonable, unduly prolonged the proceedings and was entirely disproportionate to the relief being sought. His approach to this motion and the extensive materials he filed, significantly increased the mother's legal costs.

[32] The Ontario Court of Appeal has stated that modern cost rules reflect a variety of purposes namely:

1. to partially indemnify successful litigants for the cost of litigation;
2. to encourage settlement; and
3. to discourage and sanction inappropriate behavior by litigants.

[33] I find that the father's conduct merits a cost award based on all three of these purposes. In particular, I find that the father's conduct must be discouraged and sanctioned. It is clear from the father's cost submissions that he intends to continue to personally attack the mother and her counsel, that he does not accept the findings of this court, that he continues to assert parental alienation and that he continues to inflame and perpetuate his crusade against the mother in these proceedings.

[34] I also find that costs are appropriate against the father in consideration of subrule 2 of the Family Law Rules that is, that the primary objective of the rules is that cases must be dealt with justly. The court must ensure that the procedure is fair to all parties, that expenses and time are saved, that cases are dealt with in ways that are appropriate to their importance and complexity and by ensuring the appropriate court resources are provided while taking into account the needs of other cases.

[35] In determining the amount of costs to be awarded I have considered the factors set in subrule 24(11) of the Family Law Rules as follows:

(a) the importance, complexity or difficulty of the issues:

The issues were important as there is no issue that is more important than protecting children from harm and protecting children's relationships with parents. But the issues were not particularly complex or difficult as this was simply a temporary care and custody motion where the society was content to leave the children in the care of the parents in accordance with the status quo and was only seeking terms of supervision that would ensure the risks of physical and emotional harm to the children were minimized.

(b) the reasonableness or unreasonableness of each party's behavior in the case:

The father acted unreasonably from the inception of these proceedings based on the nature of his responding materials and his unwarranted attack on the mother. Although it was appropriate for the father to seek the assistance of the society, as part of the terms of supervision, in re-commencing a relationship with his son, this relief was envisioned and agreed upon by the society and the mother. The mother was put to unnecessary and excessive costs as a result of the father's stance and litigation strategy. His behavior borders on bad faith as he must be taken to have known that his litigation conduct would cause the mother both financial and emotional harm. Although the father, in his costs submissions, emphasizes many times the stress he is under, he fails to recognize that his conduct in these proceedings has caused the mother considerable stress. He portrays himself as the blameless victim and does take an iota of responsibility for the current circumstances and certainly does not see how unreasonable his behavior has been.

(c) the lawyer's rates:

Mother's counsel has practiced family law almost exclusively for 20 years and an hourly rate of $300 is reasonable.

(d) the time properly spent:

The Bill of Costs indicates mother's counsel spent a total of 59.9 hours. This includes the usual time to review the society materials and prepare the mother's responding materials. However, most of the time is noted to be with respect to reviewing the father's extensive motion materials and responding to them. The time also includes the number of appearances and the day and half to argue the temporary care and custody motion. The mother would have had to prepare pleadings and some time would have been spent attending court but if the father had been reasonable the number of hours would not have been so significant. In view of the extent of the materials filed by the father and his tactics in these proceedings, the hours spent are reasonable.

(e) the expenses properly paid and payable:

The usual disbursements are claimed. Although the photocopy charges are somewhat high I assume they are related to the fact that mother's counsel would have had to make copies of all of the father's materials for her client.

(f) any other relevant matter:

The only relevant consideration would be the father's ability to pay. However, it was the father's decision to litigate in such an aggressive manner and that decision does not come with impunity. The father has not demonstrated that it would be a hardship to pay the mother's legal costs.

[36] I am mindful that the court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Counsel (Ontario) (2004), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.

[37] I have considered the special nature of child protection proceedings, the applicable legal principles and the factors set out above. I have considered the amount of legal costs that the mother would have incurred if the father by his conduct had not significantly increased her legal fees and I have deducted those from the costs claimed by mother's counsel. I find that a fair and reasonable amount of costs that the father should pay the mother is $18,000.00 inclusive of all disbursements and applicable taxes.

[38] There will therefore be an order that the Respondent, D.S. pay the Applicant, J.S. costs fixed at $18,000.00 within 30 days of this order.

Released: January 21, 2014