Court File and Parties
Court File No.: 12-0278-00 Date: 2014-08-18 Ontario Court of Justice
Between: The Children's Aid Society of the District of Thunder Bay, Applicant,
— And —
S.M., J.S. and E.M. Respondents.
Counsel: Kevin Cleghorn, for the Applicant, The Children's Aid Society of the District of Thunder Bay Michael Cupello, for the Respondent, S.M. (mother)
Costs Endorsement
DiGiuseppe J.:
A. Background
[1] The Children's Aid Society of the District of Thunder Bay (the Society) brought a Protection Application with respect to the children K., born […], 2009, D., born […], 2010 and A born […], 2012. The application alleged that the children had suffered physical and emotional harm and were at risk to suffer physical and emotional harm because of the parents' conduct, failure to care or pattern of neglect towards the children.
[2] There was a history of involvement with Temiskaming Child and Family Services (Temiskaming CAS), and when the family relocated from K[…] Lake to Schreiber in July 2011, the Society became involved. Their involvement resulted in a number of Voluntary Service Plans and Temporary Care Agreements. As a result of ongoing concerns, the children were apprehended and the court made a temporary care order placing the children with the Society, with access to the parents.
[3] At a Trial Management Conference (TMC) before me on July 11, 2013, trial dates were scheduled for August 12, 13 and 14, 2013. Counsel estimated trial time was 3 days. The TMC was adjourned to July 3, 2013, to facilitate the filing of documents from third parties and to allow a settlement conference, scheduled before another Judge on July 2, 2013, to proceed.
[4] The TMC continued on July 3, 2013. At that time, the mother S.M., changed counsel and Mr. Cupello, who had not yet formally been retained, sought an adjournment of the trial. The request was denied and the trial dates of August 12, 13 and 14, 2013 were confirmed.
[5] Third party documents were filed by the Society as provisional exhibits. The parties were given access to the documents, asked to review them and be prepared to make submissions on admissibility either on the date scheduled for trial or on such earlier date as could be arranged.
[6] On August 12, 2014, the first day scheduled for trial, Mr. Cupello, who was now retained as counsel for the mother S.M., indicated he had not reviewed the third party records filed. The 3 days set aside for trial were then used by counsel to review the documents. Written submissions were filed on the issue of admissibility and I made my written ruling on admissibility on October 16, 2013.
[7] The trial then commenced with the hearing of evidence on October 28, 2013 and continued on October 29 and 31, November 1 and 25, 2013, January 7, 27, 28, 30 and 31, 2014. Written reasons for judgment were released on April 4, 2014 dismissing the Society's application and returning the children to the care of the mother, S.M.
[8] On May 26, 2014, the respondent S.M. sought a date to argue the issue of costs. I directed written submissions be filed by the parties.
[9] The respondent S.M. seeks costs on a substantial indemnity basis from the Society. She seeks indemnity with respect to legal fees and disbursements incurred of $99,281.10 inclusive of H.S.T., for Mr. Cupello, $970.49 for Mr. Brothers, fees for expert witnesses in the amount of $1,435.00 for Dr. Bosma and $390.00 for Dr. Johnston and $4,567.75 for expenses to travel to Thunder Bay for trial.
[10] The respondent S.M. submits that the Society was unreasonable and unfair in pursuing the application, particularly by filing voluminous documents, many of which were irrelevant and not relied upon by the Society, failing to investigate the matter fully and provide services to the respondent, and alleging seven statutory grounds in the protection application, none of which were established but which nonetheless required significant effort and resources to rebut.
[11] The Society submits that it acted in accordance with its mandate, responded to risks identified by its own staff and other service providers and attempted to assist the respondent. The Society submits that it did not act in bad faith.
[12] The Society also submits that the respondent S.M. made no claim for costs in her Answer to the Protection application, nor were there any claims made for costs or costs awarded during any other stage of the proceeding.
B. The Law
[13] Cost rules are designed to indemnify successful litigants for the costs of litigation, to encourage settlements and to discourage and sanction inappropriate behaviour by litigants. Rule 24 of the Family Law Rules deals with the issue of costs. It is a statutory framework that deals with costs in family law cases, including child protection matters.
[14] Rule 24(1) sets out the presumption that a successful litigant is entitled to costs. The presumption does not apply in a child protection cases (Rule 24(2); Children's Aid Society of Ottawa-Carleton v. S., [2003] O.J. No. 945 (Div. Ct.)).
[15] A Children's Aid Society can still be subject to a costs order. There is a line of cases that suggest that costs should not be awarded against a Society unless exceptional circumstances exist. Gunsolus J. in Kawartha-Haliburton Children's Aid Society v. K.H. and T.C., 2012 ONSC 5165 provides useful guidance in assessing whether exceptional circumstances exist. At paragraph 10:
"The general test for ordering costs against a Children's Aid Society is that a Society must have conducted itself in a manner that was unfair. To attract an award of costs, there is no need to determine that a Society acted in bad faith. Indeed, a Society should not be punished for a mere error in judgment in carrying out its difficult and important statutory function."
[16] It follows then that the circumstances of each case, particularly the conduct of the Society, must be scrutinized to determine whether the Society has acted unfairly. Indeed, Rule 24(4) and (5) (unreasonable behaviour), Rule 24(8) (bad faith) and Rule 24(7) (unprepared party) speak to the behaviour of the parties during the course of the litigation, and make it clear that unreasonable or inappropriate behaviour may attract cost consequences.
C. Analysis
[17] As a preliminary matter, the Society in paragraph 1 of its written submissions states that the respondent mother made no claims for cost in her Answer. It is unclear from the Society's submissions whether it is suggesting that the respondent is not entitled to costs because no initial claim was made. If that is the case, I reject that argument.
[18] Absent specific authority to the contrary, I am satisfied that the respondent is entitled to claim costs notwithstanding no specific claim was made in her Answer. In my view, this is consistent with the Family Law Rules, in that there is a presumption that costs be awarded to the successful party (mindful that the presumption does not apply in Child Protection cases), not that there is a presumption only if a claim is made in the pleadings. To suggest otherwise would permit litigants to behave inappropriately without sanction and would discourage settlements. Rather, a more purposeful approach, consistent with the primary objective of the Rules to deal with cases justly, is to allow the claim for costs to be addressed.
[19] I move now to the issue of whether the Society, in the advancement of the Protection Application, conducted itself in a manner that could reasonably be considered as unfair. To assist me in this analysis, I note the following:
The Society's involvement began at the request of the Temiskaming Children's Aid Society, who identified a number of concerns with the respondent, including mental health issues, domestic violence and parenting deficits including an instance of a child being abandoned.
The Society engaged the respondent and her family, and entered into a number of Voluntary Service Plans to address these issues.
Concerns mounted as the respondent continued to have mental health difficulties and remained in an abusive relationship. These concerns culminated with the apprehension of the children.
While the children were in care, the Society offered access to the respondent and continued to encourage that she access services to address personal issues and parenting deficits.
The matter continued in the court through the conference process and then to trial.
The trial lasted 10 days over the course of 4 months, in addition to 3 days set for trial that were used for document review and submissions on admissibility.
[20] I find no fault with either party on how they conducted themselves through the course of the trial. I expressed some concern that 3 days of trial set aside in August 2013 were used only to deal with documents, notwithstanding my express direction that the issue of document admissibility be addressed prior to the trial date. The fact that the respondent chose not to do so cannot now be used to suggest the Society somehow prolonged the trial.
[21] On the issue of documents subpoenaed and filed with the court by the Society, I cannot conclude that the Society was on a "fishing expedition" or cast too broad a net in subpoenaing the documents it did. Rather, given the protection concerns expressed by the Temiskaming CAS and that emerged during the Society's involvement with the respondent, it was entirely appropriate to subpoena documents from the agencies and individuals the Society identified. A culling of those documents to determine only the relevant ones, with or without court assistance, was a reasonable step in the litigation process. My reasons on the admissibility of those documents and my judgment at trial do not suggest otherwise.
[22] With respect to the grounds the Society advanced in its Protection Application to support the claim that the children be found in need of protection, all those grounds deal with concerns expressed by the Temiskaming CAS and relayed to the Society, and concerns identified by the Society during its involvement with the respondent and her family. They are not fabricated nor, in the context of S.M.'s admitted challenges, exaggerated. My Reasons say as much. For example, my findings with respect to the evidence of Cathy Smith support the Society's position. At paragraph 126 to 128:
[126] "Particularly noteworthy is the evidence of Cathy Smith, a worker for the Child Development Program. Her evidence in the form of client meeting notes was filed as an exhibit. Ms. Smith became involved with this family in August 2011. She identified the issues presented to her by S.M., who was seeking support in managing her children's behaviours, and addressing sleep disturbances, tantrums and developmental issues.
[127] Ms. Smith's involvement ended shortly after the July 10, 2012 interaction which led to the apprehension of the children the next day. Her evidence regarding this interaction is markedly different from the evidence of S.M. and supports the evidence of Ms. Bull. Her summary of that contact set out at page 179 of her notes describes a clearly stressed and agitated S.M., in conflict with the Society and with her partner J.S. S.M. became increasingly agitated over the course of the visit. This behaviour took place in the presence of the children. Ms. Smith left when asked and contacted the Society.
[128] In Ms. Smith's closing summary of her involvement with this family, set out in pages 184 and 185 of her notes, she identified a chaotic and stressful relationship between S.M. and J.S., escalating during early 2012 and moreso after A. was born. This was confirmed by Ms. Dingwell in her evidence when she described the family slipping into a downward spiral during this time. Ms. Smith concluded that neither parent was able to understand their children's needs, or the impact that their stressful and chaotic relationship had on them."
[23] Further, at paragraph 132 of my Reasons, I made findings accepting the evidence of the Society workers.
[132] "Given these concerns, where the Society's evidence conflicts with the evidence of S.M., I prefer the evidence of the Society, particularly with respect to those observations made by Ms. McLean and Ms. Bull when visiting the home. I also prefer the evidence of Ms. Bull and Cathy Smith, particularly with respect to the events of July 10, 2012. That evidence is consistent and supported by records that are statutorily required to be maintained. It is clear and concise, and in my view an accurate account of what those witnesses heard or observed."
[24] The Society's concerns remained consistent during the course of its involvement with the respondent, were shared with her and set out in the Voluntary Service Plans. Full disclosure was made to the respondent prior to trial. I cannot conclude that the grounds alleged were broad or overreaching. The respondent was always aware of the case she had to meet.
[25] The Society's theory was that with the struggles the respondent faced, particularly with respect to her mental health, the children were at risk and ought to be found in need of protection. In my Reasons for Judgment, I agreed that the respondent had significant challenges. Indeed, I accepted much of the evidence presented by the Society. I found it credible and in many respects, supported by documentation.
[26] I also found that the respondent minimized her shortcomings and often deflected blame from herself to the Society and its workers. On the other hand, she was remarkably forthright with respect to her mental health issues, exhibiting insight and expressing a desire to continue with counselling.
[27] It is clear from my Reasons that concerns with respect to the respondent's ability to parent her children did exist. Those concerns were well documented. In fact, they were acknowledged in part by the respondent S.M. Her ongoing mental health issues and her stated desire to improve her parenting skills supported, in some measure, the position taken by the Society throughout the course of its involvement and at trial. Indeed, the respondent in her evidence acknowledged the deficits and challenges she faced even to the point of agreeing to enter into a Voluntary Services Plan with the Society and continue working with them if her children were returned to her.
[28] The Society called evidence and advanced its theory, as it is required to do in carrying out its statutory responsibilities. Likewise the respondent called evidence and advanced her theory. This was simply a case where I disagreed with the theory advanced by the Society and found that it had not met the evidentiary burden necessary to make a finding that the children were in need of protection.
[29] When I consider the manner in which this litigation proceeded before me, I cannot conclude that the Society acted unfairly. The length of the trial and the fact that it was spread over a period of months, and the impact the trial had on the respondent are not factors that I consider in assessing whether the Society acted unfairly. Nor is there evidence that the Society engaged in unreasonable behaviour (Rules 24(4) (5), was unprepared (Rule 24(7)) or acted in bad faith (Rule 24(8)).
[30] This is not a case where the respondent has satisfied me that the Society acted unfairly and ought to be penalized with an award of costs.
D. Conclusion
[31] There will be no order for costs.
Released: August 18, 2014
Signed: "Justice D. DiGiuseppe"