Court File and Parties

Court File No.: C70807/14 Date: 2016-02-01 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

In the Matter of

The Child and Family Services Act, R.S.O. 1990, c. 11

Between:

• G.B. (Moving party – respondent father to the protection application)
• and
• M.Y. (Moving party – respondent mother to the protection application)
• and
• The Catholic Children's Aid Society of Toronto (Respondent to the Motion – applicant in the protection application)

Before: Justice Robert J. Spence

Motion Heard on: 5 August 2015 and 26 January 2016

Reasons Released on: 1 February 2016

Counsel:

• Ms. Fatima Husain for the applicant society
• The respondent parents in person

Nature of the Proceeding

[1] This is a motion brought by the Respondent parents ("parents"), for a costs order against the Catholic Children's Aid Society of Toronto ("society"), in the amount of $45,000, being the amount required to reimburse the parents for "all legal costs borne by the respondents as a result of the [society's] abandoned motion".

[2] The society is opposed to the request for costs, in any amount.

[3] The father stated at the outset of argument that he alone would be making all submissions on behalf of both parents.

Background

[4] On or about May 3, 2014 the father assaulted the mother, inflicting an injury to her head. The father subsequently left the home and did not return that night.

[5] On May 4, 2015, the police were called to the parents' home following a 9-1-1 call made by the mother, when the father subsequently attempted to break into the house, while the mother was attempting to keep him out.

[6] The police charged the father with assault causing bodily harm, arising from the May 3rd assault.

[7] On May 5, 2014, the father pleaded guilty to the charge of assault simpliciter. The father admitted, inter alia, the following facts on his guilty plea:

[the mother] indicates that [the father] has been quite controlling and verbally abusive towards her. She wants him to seek counselling so that their family can move forward . . . . At the time of the offence . . . tensions between [them] had escalated to the point where there was a physical fight in the family home. During the altercation, [the father] pushed [the mother] against the wall where she fell and her head landed on the corner of the wall . . . . [resulting in] an injury to her head, a laceration and some bleeding. [the mother] passed out for a period of time but later woke up and managed to run to the basement bathroom . . . and eventually escaped through a window. She later sought treatment at a medical clinic for her head injury where she received stitches to close the wound. She later returned home and changed the locks on the door. . . . The next day [police were called when father was] attempting to gain entry to the home through a milk chute adjacent to the side door entrance of the house. The complainant provided a video statement to the police outlining the events of the day before and the assault referred to and as a result, [the father] was located and placed under arrest.

[8] The parents' 11-month old infant daughter, H., was in the home at all relevant times and in fact (as I will expand on later in these reasons), was actually being held by the father at the time he assaulted the mother.

[9] During the sentencing, the court inquired of the father whether he thought he might benefit from counselling, to which the father replied:

I might benefit quite a lot from it.

[10] As part of the sentencing, the court stated:

The accused, as I have already indicated, has spent two days in custody and he has a criminal record but it is not related and it is dated but it is not that old, 2008. His offences involve exclusively crimes of dishonesty for which, in some instances, he received custodial time. Actually in every case although the final finding is a conditional sentence order but he has no crimes of violence on his record.

[11] The court imposed a suspended sentence and placed the father on probation for 12 months, with certain conditions, including a no-contact order with the mother, except with her written revocable consent.

[12] The court also imposed a five-year weapons prohibition on the father, even though the Crown had not sought such an order, due to the seriousness of the offence which the father had committed.

[13] The mother is the parent of another child, A., who was 5 years old at the time of the assault, but who was not in the home when the father assaulted the mother. Instead, he was staying with his biological father who, at the time, was sharing a 50/50 parenting arrangement with the mother.

[14] The society immediately investigated following the police contact, and it received information from a number of sources which caused it to be concerned about the mother's mental health. That concern, combined with the circumstances surrounding the assault itself, caused the society to apprehend H., and to place her in a foster home.

[15] On May 9, 2014, the society commenced its protection application, wherein it sought:

1. For both children, a finding in need of protection pursuant to sections 37(2)(b) and 37(2)(g) of the Child and Family Services Act ("Act");

2. A six-month supervision order placing the child A. with his biological father, with mother's access to A. to be in the society's discretion, and in consultation with A.'s biological father; and

3. A six-month society wardship order, placing the child H. in the care and custody of the society, with the parents' access to be in the society's discretion.

[16] At the first court appearance on May 9, 2014, the court made a temporary without prejudice:

1. Supervision order placing the child A. with his biological father, on specified terms and conditions, and

2. Society wardship order for H., with access to the parents in the discretion of the society.

[17] At the same appearance, the parents advised the court that the maternal aunt and uncle were willing to plan for H.

[18] The matter was then adjourned to June 5, 2014.

[19] More than one week prior to that scheduled court appearance the society gave notice to the parents that it was concerned about a potential conflict of interest by the parents' newly-retained counsel who was representing both parents in this proceeding.

[20] Neither the parents nor their then-counsel did anything to respond substantively to the society's expressed concerns prior to attending court on June 5, 2014.

[21] This potential conflict of interest issue was raised before me on June 5, 2014, the date that the parents had been expecting to argue a temporary care and custody hearing, seeking to have H. returned to their care. I made it clear to the parties that until this preliminary issue was resolved, I could not conduct a temporary care motion argued by then-counsel representing both parents, particularly as there appeared to be a valid concern about conflict of interest.

[22] At this same court attendance, the society advised that it was intending to serve a conflict of interest motion, seeking to have the parents' counsel removed, unless the parents themselves resolved the issue. I adjourned the matter to July 3, 2014, to hear the conflict of interest motion. At the same time, I advised the parties that if, in the interim, the parents decided to retain different counsel – thereby resolving the conflict of interest issue – I would be prepared to hear the temporary care motion on July 3rd.

[23] The society also indicated to the court that it intended to bring a "Wagg" motion returnable on the July 3rd court date.

[24] The matter next came before me on July 3rd, as scheduled. By then, the parents themselves had resolved the conflict, by firing their previous counsel. Mother decided to hire her own counsel and father chose to be self-represented.

[25] With mother's new counsel appearing, and father appearing on his own behalf, the parties consented to the following order:

1. The society's Wagg motion for production of father's police records, and

2. Placement of H. with the maternal aunt and uncle on a temporary supervision order.

[26] The matter was then adjourned to September 9, 2014. The society had filed a motion seeking to return H. to the care of both parents pursuant to a supervision order, on specified terms. The court made that order on consent.

[27] The matter was then adjourned to October 21, 2014.

[28] On that date the parties consented to a temporary supervision order placing the child A. in the care and custody of the biological father and the mother, on specified terms.

[29] On the next scheduled court dated, December 2, 2014, the society advised the court that it was attempting to negotiate a final resolution through a draft Statement of Agreed Facts which it had circulated to the parents for their consideration. By then, the mother was representing herself, as was the father of the five year-old child, A.

[30] The matter was adjourned to January 27, 2015.

[31] The parties subsequently agreed to adjourn the January 27th date to February 18, 2015, as society counsel was unavailable on January 27th.

[32] On February 18, 2015, the society advised the court that the parents had yet to sign the Statement of Agreed Facts. On consent, the court adjourned to permit the parties to continue to negotiate that Statement with a view to reaching a final consent resolution.

[33] In its factum responding to the parents' request for costs, the society states that at the February 18th court attendance the parents "requested a trial and the opportunity to cross-examine society staff and society counsel".

[34] The society did advise the court on that date that if a final resolution were not reached by Statement of Agreed facts, it would likely be seeking a termination of the proceeding on the next court date.

[35] The matter was adjourned to May 11, 2015.

[36] On May 11, 2015, a Statement of Agreed Facts not having been agreed-upon beforehand, the society filed a notice of motion and affidavit in support of its request to withdraw the protection application. The parents consented to this motion. However, the parents also advised the court that they would be seeking a costs order against the society.

[37] I ordered the protection application to be marked withdrawn and then set timelines for the filing of materials by the parties on the costs proceeding.

The Family Law Rules Pertaining to Costs

[38] I set out the relevant costs Rules, upon which the parents rely, as provided for in the Family Law Rules ("Rules"):

RULE 24: COSTS

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).

NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY

(2) The presumption does not apply in a child protection case or to a party that is a government agency. O. Reg. 114/99, r. 24 (2); O. Reg. 544/99, s. 10 (1).

COURT'S DISCRETION — COSTS FOR OR AGAINST GOVERNMENT AGENCY

(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful. O. Reg. 114/99, r. 24 (3); O. Reg. 544/99, s. 10 (2).

RULE 12: WITHDRAWING, COMBINING OR SPLITTING CASES

WITHDRAWING APPLICATION, ANSWER OR REPLY

12. (1) A party who does not want to continue with all or part of a case may withdraw all or part of the application, answer or reply by serving a notice of withdrawal (Form 12) on every other party and filing it. O. Reg. 114/99, r. 12 (1).

COSTS PAYABLE ON WITHDRAWAL

(3) A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties agree otherwise. O. Reg. 114/99, r. 12 (3).

COSTS ON WITHDRAWAL BY GOVERNMENT AGENCY

(4) Despite subrule (3), if the party is a government agency, costs are in the court's discretion. O. Reg. 114/99, r. 12 (4).

[39] These are the Rules upon which the parents rely in support of their request for costs. In essence, they argue that the society eventually withdrew its protection application which, according to the parents, made the parents the "successful" party in the proceeding, thereby placing the parents in a strong position to seek costs.

[40] The basis for a costs order, they argue, is not only were the parents "successful" but, as well, there is a discretion in the court to award costs in their favour because of the society's decision to withdraw its protection application, pursuant to Rule 12(3).

Reasonable Conduct and the Determination of "Success" in a Child Protection Proceeding

a. Overview

[41] It is often a straightforward analysis to determine whether a party has been successful in a family law proceeding. For example, parent A commences an application seeking custody of a child as against parent B. The case proceeds to trial and parent A succeeds in obtaining custody. In this simplified example parent A is the successful party.

[42] In the foregoing example, Rule 24(1) provides presumptively that parent A will be entitled to his/her costs of the proceeding, as it was that parent who succeeded in obtaining a custody order at trial.

[43] However, the analysis of what constitutes "success" is generally not the same in the context of child protection proceedings. I will have more to say about this later in my reasons.

[44] Furthermore, as Rule 24(3) states, the presumptive rule in favour of costs to the successful party does not apply in child protection cases.

[45] There is an understandable rationale for this exception to the costs rule.

[46] In the case of Children's Aid Society of Ottawa-Carleton v. Ms. C. (2000) CarswellOnt 5448 (Ont. S.C.J.), the court stated, at paragraph 3:

Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and R. of Family Law Rules, O. Reg. 114/99 as amended, provide clear authority for this court to award costs. Since the party requesting costs in a child protection case cannot rely on the presumption that a party is entitled to costs, that party must satisfy the court that grounds exist for costs to be awarded. Good public policy exists to exempt child protection cases from a presumption that costs will be awarded. As stated in Y. (M.) v. Y. (M.), [1981] O.J. No. 443, 3 F.L.R.R. 180 (Ont. Prov. Ct.):

• The court is the final arbiter as to what is in the best interest of the child. Children's aid societies should not operate under the fear of costs if they do not convince the court to make the exact order for which they applied.

• The society should not be penalized for attempting to carry out its statutory purpose of protecting children where necessary ... according to its best judgment, unless the society acted in some indefensible way.

[47] See also Children's Aid Society of the District of Thunder Bay v. S.M. [2014] O.J. No. 4217 (O.C.J).

[48] In other words, what is not the test, simpliciter, for awarding costs against a society is whether the society "loses" its protection application.

[49] Rather, courts have generally held that costs will only be awarded against a society where the society has acted unreasonably. For example, in Children's Aid Society of Ottawa-Carleton v. D.S. [2002] O.J. No. 146 (Ont. S.C.J.), Justice Linhares de Sousa stated, at paragraph 4:

The test to be applied is whether a reasonable person would perceive the Society in question as having acted fairly and reasonably in its conduct of the investigation and application.

b. Assessing Reasonable Conduct on the Facts of This Case

[50] In my analysis of whether the society acted reasonably in this case, the starting point is Part III of the Child and Family Services Act ("Act"), the Part which deals specifically with child protection proceedings. Section 40 of the Act provides:

Application

40. (1) A society may apply to the court to determine whether a child is in need of protection. R.S.O. 1990, c. C.11, s. 40 (1).

[51] Section 37(2) of the Act defines "child in need of protection". For the purpose of this discussion I cite only the relevant portions of that section:

Child in need of protection

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

(f.1) the child has suffered emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

[52] It was the father's position during argument that the society had no right to bring a protection application – ever.

[53] The father acknowledges that prior to the issuance of the protection application the society had been made aware of his guilty plea in criminal court. But the father argues that this guilty plea alone was an insufficient basis for initiating a protection application.

[54] I note that notwithstanding the father's guilty plea in criminal court, during the course of argument on this motion, he characterized the assault as an "accident".

[55] However, there was more than just a guilty plea in this case. As at the date the society commenced its protection application, and shortly following the commencement of the protection application, the society was aware of certain objectively ascertainable facts, including:

1. The father had physically assaulted the mother on May 3, 2014;

2. The assault was serious enough that it inflicted bodily harm on the mother, specifically, causing her to bleed profusely and requiring a number of stitches to her head;

3. The father was holding baby H. in his arm, at the time he committed the assault on the mother;

4. Despite the fact that the mother had changed the locks on the family home following the assault, on May 4, 2014 the father subsequently tried to break into the family home where the mother and H. were residing;

5. The mother was so fearful during this attempted break-in that she called 9-1-1 to ask for help;

6. The mother's fear at the time of her call is demonstrably clear in the audio transcript of the 9-1-1 call;

7. The father had a criminal record;

8. The father had served time in jail;

9. The father had been controlling and verbally abusive toward the mother;

10. The parties' relationship had been one of increasing tension and conflict in the time leading to the assault by the father;

11. The father acknowledged to the sentencing judge that he would benefit from counselling; and

12. The mother had a history of emotional/psychological problems.

[56] These are all facts, such that no matter how anyone attempts to characterize other events, these facts are not open to dispute.

[57] What cannot be forgotten in all of this is the following timeline:

• May 3 – father assaults mother;
• May 4 – father attempts to break into the family home; police called;
• May 5 – father pleads guilty in criminal court, sentenced to time served plus terms of a probation order, including a no-contact order with mother, unless mother otherwise consents;
• Approximately May 6 or 7, mother consents to contact with father; and
• May 8 – father returns to the family home.

[58] There was only a span of 5 days between the date the father assaulted the mother and the date father was back in the home. The act of moving back into the home, even with the mother's consent, did not have the effect of resolving the domestic violence issues. The protection concerns arising from the previously-noted series of events – the objectively ascertainable facts – were still very much alive.

[59] And because the protection concerns were still extant, from the society's perspective, the foregoing facts amply supported the commencement of a protection application under sections 37(2)(b) and 37(2)(g) of the Act.

[60] Likewise, from the court's perspective, the objectively ascertainable facts provide a legitimate underpinning for the commencement of the protection application.

[61] When parents engage in conflict, conflict of a nature which ultimately leads to an actual physical assault by one parent against the other, and when there is a small child nearby – in this case, actually in the arms of the assaulter - there is a strong argument that the child is also at risk of physical harm. This is the risk of harm which is captured by section 37(2)(b) of the Act, one of the sections named in the protection application.

[62] Further, when children are exposed to ongoing conflict between parents – arguments, shouting, and physical violence – it is trite to say that children so exposed are at risk of emotional harm. This is the risk of harm which is captured by section 37(2)(g) of the Act, the other section named in the protection application.

[63] And these risks are compounded even more when – as in the facts of this case – there is a history of:

• Verbally abusive and controlling behaviour by the assaulter toward the parent-victim of the assault;
• Increasing tension and conflict between the parents in the period of time leading to the assault; and
• A history of emotional/psychological problems by the victim of the assault.

[64] In other words, it is not necessary for the society to prove that a child has in fact been physically harmed by her parents, or that she has in fact been emotionally harmed by the actions of her parents, in order to establish that the child is in need of protection. It is the risk of those types of harm which is sufficient to establish the finding in need of protection.

[65] And the court's ultimate determination of the risk of harm is very much influenced by the nature of the surrounding circumstances and history, such as that which existed in this case.

[66] Had all of the foregoing facts been proven in court following the commencement of the protection application, the court may well have made the finding in need of protection.

[67] I wish to be clear, however, that I am not concluding from the aforementioned undisputed facts that proof of those facts would have conclusively led to a finding that the child was in need of protection. Instead, it was those facts which gave the society reasonable and probable grounds to believe that the child was in need of protection as at the date of the issuance of the protection application, or shortly after its issuance.

[68] The term "reasonable and probable grounds" is referred to in a number of sections in the Act.

[69] For example, a justice of the peace may issue a warrant to apprehend a child where there are "reasonable and probable grounds to believe" that the child in question is in need of protection.

[70] In determining whether the society acted reasonably, one of the questions for this court to consider is whether it was reasonable for the society to commence its protection application.

[71] The thrust of the parents' factum in this case is that the society acted improperly by commencing its protection application and that the parents themselves were not in need of any monitoring or court oversight.

[72] The following are two excerpts from the parents' factum prepared for the costs motion:

At paragraph 6: – CCAS has not provided the court with one piece of irrefutable evidence that suggested they ever had a bonifide [sic] reason for apprehension of H. or A., as a matter of fact, their own evidence for immediate apprehension was shown to be flawed and incorrect.

At paragraph 7: – CCAS has never examined any witnesses who provided evidence to the court that suggested the actions of CCAS were unwarranted and unnecessary, and as such they have been negligent or intentionally negligent in the conduct of their duty.

[73] And yet, despite these assertions in the parents' factum, the parents had much earlier acknowledged during the course of the proceeding itself that they were not only in need of parental remediation, but that they were both receiving and benefitting from that remediation.

[74] For example:

[75] From the mother's affidavit sworn June 23, 2014:

Paragraph 3: – I have asked [father] to find separate accommodation so that there will be no continuing concern regarding adult conflict impacting upon the children's welfare.

Paragraph 4: – I continue to see Dr. B. regularly. I have successfully transitioned from my previous anti-depressant (sertraline) to my current medication (escitalopram) and have noticed a significant improvement in my health. Dr. B. is quite obviously aware of her obligation to report concerns.

Paragraph 5: – I have engaged in individual counselling with . . . which I intend to continue on a bi-weekly basis. I have been attending Violence Prevention Workshop program hosted by . . . which is a six week program . . . .

Paragraph 6: - [father] and I are scheduled to see Dr. W. for Family Counseling

Paragraph 7: – I recognize that the incident that occurred on May 4 [sic], 2014 was serious despite being the only time any physical force was used.

Paragraph 8: – I do not have a clear or coherent recollection of the specific details [of the incident] nor did I when interviewed by the police. It was a traumatic event. My then medication was problematic and I was exhausted.

Paragraph 9: – I am not fearful of [father] but I recognize that we both need some time and professional assistance to ensure that no such incident or any conflict occurs again.

Paragraph 10: – I can undertake to this court that I will fully comply with any conditions of supervision, including not permitting [father] to have contact with either H. or A. except as directed by this court.

[76] From the father's affidavit sworn June 23, 2014:

Paragraph 4: – I made the single biggest mistake of my life that day by pushing [mother, who] hit her head on the corner of the wall . . . with a laceration to the back of her head, that required 4 stitches.

Paragraph 18: – I have complied with all the requests of CCAS . . . [the society worker] has stated that I have strived to work harder and faster achieving the goals required to return H. and A. to our home ….

Paragraph 19: – I am currently involved in the PARS program and am enjoying both the instructors and learning more than I could have imagined about the causes of violence in society . . . .

Paragraph 24: – I hate the mistake I made . . . . I need to do everything possible to reunite my family and make sure nothing like this ever happens again.

[77] The mother's affidavit sworn September 8, 2014:

In this affidavit, the mother repeats a number of the child protection concerns which she deposed to in her affidavit dated June 23, 2014. Additionally, she noted:

Paragraph 5: – I attended a Violence Prevention Workshop . . . I was an active participant and demonstrated understanding of the impact of violence.

Paragraph 6: – [father] completed the PARS program.

Paragraph 7: – [we] attended couples' counselling . . . and have spent approximately 16 hours . . . . we intend to continue this work which we have found helpful.

Paragraph 8: – I have been referred to the Women's College Hospital Trauma clinic by Dr. B. to further my coping skills with regard to PTSD.

Paragraph 21: – I am taking all steps possible to address the concerns regarding conflict between [father] and me.

[78] There is no question but that the parents were highly critical of the society in their affidavits filed during the course of this proceeding. However, what all of the foregoing excerpts reveal is that there was at least some recognition by the parents that real child protection concerns existed; and there was some recognition by the parents that those child protection concerns required remediation.

[79] On the facts as I have outlined, I have concluded that the society acted reasonably in commencing its protection application and facilitating the parents' access to resources, designed to address the child protection concerns.

[80] The parents argue that the manner in which the society investigated the facts was unreasonable, so that even if the court were to find that the commencement of the protection application itself was reasonable, the society's conduct afterwards was unreasonable.

[81] For example, the parents assert that "over ten witnesses provided affidavits supporting the position of the parents", and that the society failed to interview these witnesses to determine the accuracy of their respective assertions.

[82] I do not intend to analyse each of those affidavits. In my view, many of these affidavits can best be categorized as character references for the parents. For example, in the affidavit of a neighbour, C.P., she states:

I have not seen [mother] neglect her children . . . Neither [parent] has ever told me that [mother] is diagnosed with bipolar disorder. . . . I am not aware that [mother] regularly threatens suicide.

[83] The affidavit of R.P., who appears to be the husband of C.P., adds little else.

[84] In the affidavit of J.S., the mother's brother, he offers his home, in the interim, to care for the child H. He also lauds the parenting abilities of both parents.

[85] In her affidavit, L.S., who is the wife of J.S., echoes the sentiments of her husband.

[86] The point I am attempting to make is that while these affidavits are supportive of the parents, they do not contradict the objectively ascertainable facts which I outlined earlier. And it is these facts which caused the society to become involved at the outset; and it is these facts which the society needed to investigate, with the goal of attempting to ameliorate the perceived risk of harm, so that the child H. could then be safely returned to the care of her parents.

[87] Simply put, it is not the society's primary purpose to investigate the character of parents with whom they become involved. Rather, it is the society's obligation to investigate the actions of those parents where such actions give rise to protection concerns.

[88] I should note that, nevertheless, the society did interview the uncle and aunt, J.S and his wife L.S. It did so with a view to finding a family placement for H. as soon as possible, so that she would not have to remain in foster care longer than absolutely necessary.

[89] In doing so, the society was able to satisfy itself that the home of J.S and L.S. was an appropriate placement for H., so that within only about seven weeks following the commencement of the protection application, the society was able to place H. in her aunt and uncle's home pursuant to a temporary supervision order.

[90] The parents also seem to argue that the society delayed the prosecution of this proceeding.

[91] Earlier in these reasons I outlined the dates of the various court appearances, and the purposes of those appearances.

[92] First, it is the court, not the society, which sets court dates. The court schedules these dates based primarily on four considerations:

1. What the parties need to accomplish between one date and the next;

2. The availability of the parties and the court;

3. The timelines set out in Rule 33; and

4. The statutory timelines set out in s. 70(1) of the Act.

[93] What the court does not do is schedule dates to accommodate the society lawyers.

[94] A review of those dates will reveal that, but for the June 5th date, each attendance at court was a meaningful attendance, and moved this case forward.

[95] If anyone can be blamed for the wasted attendance on June 5th - and the concomitant 4-week adjournment - it was the parents themselves, or their then-counsel.

[96] As I noted earlier, prior to the June 5th court date, the parents had decided to retain the services of a single lawyer to represent both their interests. Recalling that the father had been convicted of assaulting the mother and that it was the resulting police involvement which led directly to the society's involvement, this single-counsel representation appeared to the court as a prima facie case of conflict of interest.

[97] This preliminary issue had to be resolved before the court could hear a temporary care motion, argued by then-counsel.

[98] However, sometime between that June 5th date, and the next court date of July 3rd the parents decided to fire their counsel; and mother retained new counsel, with father becoming a self-represented litigant.

[99] Had the parents made a more prudent decision regarding legal representation at the outset of the case, that June 5th date would not have been a wasted court appearance.

[100] And it was on that very next court date – July 3rd – that the court made the temporary supervision order in favour of the aunt and uncle.

[101] By the fall of 2014, the society was seeking to terminate its protection application. In order to facilitate this, it circulated a draft Statement of Agreed Facts in November 2014.

[102] The parents sought further time to review that document and consider whether they wished to make any amendments to it before agreeing to sign it.

[103] For reasons of their own, the parents continued to delay signing, so that at the court appearance on February 18, 2015, the society advised the court that it would likely ask the court to terminate the protection application on the next court date in May 2015 even if the parents had still not signed, assuming the society had no further protection concerns.

[104] The society then served and filed a motion returnable on May 11, 2015, whereby it sought the court's permission to withdraw the protection application. The parents consented to this motion, subject to the father's request to seek costs against the society.

[105] On the basis of the foregoing evidence, I conclude:

1. There were reasonable and probable grounds for the society to commence the protection application;

2. The society conducted its investigations in a diligent manner;

3. The society was continually working toward the safe reintegration of H. into the parents' home; and

4. The society moved in a timely manner and did not unduly delay the progress of the application.

c. Were the Parents the "Successful" Party?

[106] I return to the question of whether the parents were the "successful" party, something which I briefly referred to earlier.

[107] Courts will not typically analyse success or failure simply on the basis of a judicial determination whether a child is in need of protection.

[108] First, many cases where a protection application is commenced never result in a formal hearing to determine whether a child is in need of protection. A large percentage of cases are resolved after a period of time by the parties entering into a Statement of Agreed Facts, whereby they agree to a number of possible outcomes, for example:

1. A finding in need of protection and a disposition, such as society wardship or a supervision order for a period of time;

2. a termination of an earlier disposition, typically a supervision order; or

3. a withdrawal of a protection application.

[109] It is not the case that simply because the society has commenced a protection application that it charges full steam ahead toward a trial, with the goal of obtaining the order requested in the protection application.

[110] Rather, the contrary is the case.

[111] The society is mandated to act in a way which "promotes the best interests, protection and well being of children".

[112] As stated in section 2(2) of the Act, the other purposes which govern the society's actions include:

Other purposes

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

The society is also mandated to act in accordance with section 15 of the Act, which in part provides:

Functions of society

(3) The functions of a children's aid society are to,

(a) investigate allegations or evidence that children who are under the age of sixteen years or are in the society's care or under its supervision may be in need of protection;

(b) protect, where necessary, children who are under the age of sixteen years or are in the society's care or under its supervision;

(c) provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;

[113] In other words, the overriding consideration – where possible – is to give the necessary supports to families with the goal of supporting the "autonomy and integrity of the family unit" – that is, providing whatever resources which can reasonably be provided so that the family unit can be preserved or restored – depending on the circumstances of the particular case.

[114] What does all of this mean in the consideration of what constitutes "success"?

[115] Ultimately, the best-case-scenario objectives of the Act, the mandate of the society, and the obligation of the court are all the same, namely, to keep families together, or to restore the family unit where that unit was initially disrupted by court order.

[116] In that context, how can it fairly be said that where a society seeks leave of the court to withdraw a protection application because it has satisfied its mandate by helping to reunite a family, that the society is the "loser" and the family is the "winner"?

[117] It seems to me that in this context, it is more accurate to state that both the society and the parents have achieved success, namely, the very success which both sides were working toward since the outset of the proceeding.

[118] Simply put, the society wants to reunite the family; the parents want to reunite the family; and the goal of both sides has now been achieved.

[119] In other words, the measure of success or failure in the context of a child protection case, is generally not the same as the measure of success or failure in the context of other types of litigation where the parties usually have competing goals which often require a judicial determination to arrive at an outcome.

[120] In my view, that consideration applies even more in a case such as this where the society was proactive throughout, specifically:

• the society remained actively involved with the parents;
• the society quickly conducted an assessment of the aunt and uncle's home with a view to placing H. with that family instead of keeping her in foster care;
• the society expanded the parents' unsupervised access to H.;
• the society moved to place H. with the parents under a supervision order; and
• the society eventually asked the court for permission to withdraw its protection application, when it was satisfied that there were no longer any protection concerns which warranted court involvement.

[121] It must be kept in mind that this was a case where there was never a contested hearing in any of the court appearances. The parents either consented to, or did not oppose all of the orders which were sought in the various court attendances.

[122] Did the parents' achieve success in the final outcome? Yes. Did the society fulfill its mandate and succeed in facilitating a reunification of the family? Yes. By those measures, I cannot conclude that the parents were the successful parties – and the society was the losing party – as contemplated by the wording of Rule 24.

[123] Nor can I conclude that – whether "successful" or not – the society's actions could be characterized as unreasonable insofar as the manner in which it conducted itself in furtherance of its statutory obligations under the Act.

Rule 12 – Withdrawal of the Protection Application

[124] I return to Rule 12 and, in particular Rule 12(3). As I noted earlier, the presumptive rule is that costs will be awarded against a party who withdraws all or part of an application.

[125] However, as I noted earlier, Rule 12(4) provides that costs against a government agency – which includes a society – is in the court's discretion.

[126] In many cases which are covered by the Rules, whether or not a party withdraws an application, is solely within the control of that party.

[127] In Piskor v. Piskor, [2004] O.J. No. 796 (Ont. S.C.J.), Justice Jennifer Blishen made it clear that while the husband in that case had the right to withdraw his notice of motion, there was a presumption that the wife was thereby entitled to her costs. Accordingly, the court made a costs order in her favour.

[128] However, the almost unfettered right which a party has to withdraw a case in a domestic proceeding, does not exist in child protection matters. Simply put, a children's aid society cannot unilaterally withdraw a protection application. It must seek permission of the court should it wish to do so. And whether the protection application is withdrawn is within the sole discretion of the court, not the society. See for example, Children's Aid Society of Hamilton-Wentworth v. B. (K.), 2002 CarswellOnt 3409 (Ont. S.C.J.); Catholic Children's Aid Society of Toronto v. B. (D.) 2002 CarswellOnt 1868 (Ont. C.J.); R.G. v. Catholic Children's Aid Society of Toronto [2014] O.J. No. 3773 (Ont. C.J.)

[129] The policy consideration underlying the requirement to obtain the court's leave to withdraw a child protection proceeding is embedded in the very nature of the proceeding itself. Once a child protection proceeding has been initiated, it is the court, and only the court, which has the authority to determine whether there are ongoing protection concerns which require continuing court involvement.

[130] In Children's Aid Society of Hamilton-Wentworth v. B. (K.), supra, Justice Randolph Mazza had this to say, at paragraph 28:

If the society were allowed unilaterally to withdraw its application, in my opinion, it would be usurping the court's power. Indeed section 1 of the Child and Family Services Act states that the Act's paramount purpose is not only to promote the child's protection, but also the child's best interests and the child's well being. The only way for the court to promote that paramount purpose is to scrutinize the relationship between the society, the parent(s) and the child.

[131] In the present case, the society ultimately came to the conclusion that the protection concerns had been addressed sufficiently so that H. could continue to live with her parents, without society involvement, and without court oversight.

[132] The parents had completed, or substantially completed programming. The society confirmed this not only with the parents themselves but with the collaterals who were involved in delivering programming to the parents.

[133] On that basis, the society brought a motion to the court, on notice to the parents, seeking leave to discontinue the protection application. And in support of that motion, it filed the requisite affidavit, which contained evidence of no ongoing protection concerns.

[134] Neither parent filed evidence to the contrary; and on the face of the society's uncontested evidence, the court was satisfied that continued court involvement was no longer warranted; accordingly, the court ordered the protection application "marked withdrawn".

Parents' Request for a "Trial" Date

[135] In their factum prepared for this costs motion, the parents state:

The respondent [father] asked the court numerous times for a trial date to defend the allegations brought by the CCAS, and was told by the court that an Agreed Statement of Facts would be submitted to settle the matter. [Father] was ordered by Justice Spence to cooperate with CCAS and provide such an Agreed Statement of Facts.

CCAS has proven nothing to this court, and now wishes to 'abandon their motion' and denying my right to a trial as guaranteed under the Charter of Rights and Freedoms ["Charter"], or filing an 'Agreed Statement of Facts' wherein I would have the opportunity of having my voice heard.

[136] As I noted earlier, although the court has no recollection of this kind of request being made "numerous times", the court accepts that the father's request for a trial was likely made in the courtroom, once or possibly twice.

[137] Despite the father's assertion to the contrary, the court would not have "ordered" the father to cooperate by signing a Statement of Agreed Facts. Such a document, whenever it is signed by parents must be signed voluntarily. In the absence of voluntariness it is not an "Agreed" document.

[138] While the society was indeed attempting to resolve the matter with a Statement of Agreed Facts, it is my understanding that the society was unable to obtain the parents' signatures and, accordingly, brought its motion seeking leave to withdraw the protection application.

[139] The father's asserts:

• he had a right to a trial to defend the society's allegations against him;
• that his right to a trial is "guaranteed under section 11 of the Charter";
• that the society "has chosen not to agree to a trial";
• that the society "has chosen to withdraw their motion without proving that they had one bonified [sic] right to remove the respondents' children from their home for months, or subject the respondents to a year of court proceedings"; and
• that all of the foregoing necessitates a costs order against the society in favour of the parents.

[140] No such right to a trial exists in the Act. Section 47 of the Act states:

Child protection hearing

47. (1) Where an application is made under subsection 40 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57.

[141] It is understandable that a lay person may equate the word "hearing" with a trial – in the conventional sense of the word. However, the meaning of "hearing" in the context of section 47(1) has been held by a number of courts to not include the requirement for a trial.

[142] In Chatham-Kent Integrated Children's Services v. M.(C.J.), 2006 ONCJ 26, Justice Lucy Glenn had occasion to consider the meaning of the word "hearing" in the context of section 47(1) of the Act. At paragraph 29, Justice Glenn stated:

The case of Catholic Children's Aid Society of Toronto v. Diana B. and Jozo K. (2002), 114 A.C.W.S. (3d) 465, [2002] O.J. No. 2318, 2002 CarswellOnt 1868 (Ont. C.J.), decided by Justice Penny J. Jones of the Ontario Court of Justice, dealt more fully with the meaning of the word "hearing" as used in subsection 47(1) of the Act and the circumstances as to when one might be required. Justice Jones wrote at paragraphs 10 to 13 of decision that:

[10] The manner in which the court conducts the necessary inquiry or "hearing" contemplated by section 47 would depend on a number of factors. A "hearing" might take the form of a summary judgment motion on affidavit evidence, the admission of an agreed statement of facts or a viva voce trial. Further, in appropriate circumstances, the requirement of a "hearing" might also be satisfied by granting leave to withdraw the application.

[143] In essence, what the courts are stating is that a "hearing" can range along a spectrum of proceedings. At the far end of the spectrum the hearing might be a full-blown trial, complete with witnesses, oral testimony, examination and cross-examination, and so on; in other words, a trial in the conventional, lay-person understanding of the word.

[144] At the near end of the spectrum, a "hearing" may be a simple motion, supported by affidavit evidence, with the opportunity for the parties to make submissions, if warranted.

[145] So long as a hearing is held in order to determine whether a child is in need of protection, the requirements of section 47(1) of the Act will be satisfied.

[146] And in the case before me, those requirements were satisfied when the society brought its motion, supported by affidavit evidence, seeking an order "granting leave to withdraw the application".

[147] Whether or not a "trial" (in the sense referred to by the parents) proceeds in any child welfare case, is not a decision which rests with either the parents or the society. Ultimately such a decision rests with the court alone.

[148] So in this case it is irrelevant that the society may not have wished a trial to go forward. It was this court that decided there were no further child protection concerns; and it was this court that granted leave to withdraw the protection application.

[149] In short, whether or not the parents were requesting a "trial", no such automatic right to a trial exists under the Act. And the parents' belief that they were somehow denied an opportunity for vindication by means of such a trial is not supportable in law; nor, accordingly, is it a right which is protected by the Charter.

Bad Faith

[150] The society strenuously urged the court to conclude that the parents' request for costs is made in bad faith which, in and of itself, should automatically disentitle them to an award of costs.

[151] The starting point for that argument is the case of Brummell v. Williams [2015] O.J. No. 5697 (Ont. S.C.J.), a decision of Abrams J.

[152] That was a costs case following a summary judgment, where the Plaintiff (the father in this case) sued the Defendants for $7,000,000 alleging approximately 19 different torts, including "alienation of affection", "false imprisonment" and "intentional interference with prospective economic relations".

[153] The essence of the action by the father was that the Defendants, as practising physicians in a small community were alleged to be liars and co-conspirators with the police and the Crown in a "plot to destroy the father's reputation".

[154] The Defendants brought a successful motion for summary judgment dismissing all of the father's claims. In the subsequent costs proceeding, Abrams J. stated, at paragraph 3:

The Plaintiff is a recreational litigant who appears to enjoy playing the part of a lawyer to the point of holding himself out as such for the purpose of committing criminal fraud. Having had the opportunity to assess the Plaintiff's demeanour in court, both as a witness and as a self-represented litigant, I am of the view that his determination to bend the evidence and the law to his particular view is only limited by his imagination.

[155] The society argues that with this as the backdrop, the court should then go on to examine the father's behaviour in the present case, while the protection application was still ongoing.

[156] In particular, the society points to the evidence of the father's personal attacks on the society workers while they were engaged in their legal duties to investigate the child protection issues.

[157] The following excerpts are taken from the affidavits filed by the parents in this costs proceeding. Paragraph 40 of the affidavit of the mother dated June 5, 2015, states:

After the family centred conference [the father] took time from his work and devoted efforts to address our immediate issues, relative to CCAS and our children. I learned from [the father] that he found evidence of domestic violence in the home of [here, mother states the name of one of the society workers who was assigned to the protection application], as well as evidence that [the same worker] supported binge drinking and drug use of her underage daughter [here mother names the worker's daughter].

[158] At paragraph 26 of the father's affidavit sworn June 2, 2015, he states:

After the family centred conference I "Googled" [he then states the name of the particular society worker] and observed that her daughter [he states the name of the daughter] had posted on her Twitter feed some years back, when [he again names the daughter] "was a minor", that her mother had "threatened bodily harm and sexual assault against her high school principal, by ramming a telephone up his ass". Further evidence of binge drinking prior to [he again names the daughter] being of age was actually endorsed in posts from [he again names the society worker] herself, referring to [he again names the daughter] being charged with drinking under age the year prior and asking one of her friends to assist her in not being charged again "this year" while again going out drinking. As well, drug use was glorified in a post where [he again names the daughter] discussed "getting stoned with her mother and watching Pineapple Express".

[159] In response to the foregoing the father argued that he was entitled to delve into the personal lives of the worker and her daughter, and even to name the daughter in his affidavit because, after all, the society was delving into his personal life.

[160] In fact, during argument, he went so far as to describe the society worker as a "violent woman".

[161] Father argued that because the Twitter post (from 6 years ago) contained this information, and because this information was "possibly true", the court ought to conclude that the information was "in fact true".

[162] And if his "Googling" happened to reveal information of this sort about the worker – that is, alleged bad behaviour - it should persuade the court that the worker, by her own past conduct, cannot be trusted to now do her job in a responsible and reliable way for the society.

[163] The father's argument continues, if the worker cannot be trusted to act appropriately, the court should now agree with the parents that the society's overall conduct in this case was unreasonable and, accordingly, the society should be saddled with a costs order.

[164] To delve into the personal life of the worker in this way, and for the father's stated purpose is, in my view, entirely unacceptable. The worker's actions in the conduct of a particular case, should be judged by her actions alone, not by certain historic hearsay/Google/Twitter posts which arise through an internet search of a person's name.

[165] For the father to have engaged in this kind of behaviour is bad enough. But to take it to the level where he publishes the name of the worker's daughter, repeatedly, in a court affidavit is so far over the line, that the court is left with a similarly negative impression as that expressed by Abrams J. in Brummell, supra.

[166] Behaviour of that sort demands the clearest disapprobation of this court.

[167] Had it been necessary to decide the issue of bad faith in order to reach my conclusion in this case, I would have leaned very heavily in that direction. However, I wish to make it clear, that in arriving at my conclusion, I do not find it necessary to decide whether the parents' claim for costs is made in bad faith. Instead, my conclusion is based on all of the other considerations set out in these reasons.

Conclusion

[168] On the evidence before me, and for the reasons I have outlined herein, I find the following facts:

1. There were reasonable and probable grounds to initiate the protection application;

2. The protection application was brought by the society in good faith and accordance with its statutory mandate;

3. The parents had very real issues which required remediation, and which went to the heart of the protection concerns;

4. The society worked with the parents to facilitate the remediation of those concerns;

5. The society moved the case forward in a reasonable and timely manner;

6. The society attempted to resolve the case by Statement of Agreed Facts;

7. When the parents refused to sign the Statement of Agreed Facts, and when the society was satisfied that the parents had progressed to the point that there were no longer any protection concerns which required court involvement, the society brought a motion seeking leave to withdraw the protection application;

8. In all respects the society complied with its statutory mandate under the Act;

9. The court's decision to grant leave to withdraw the application did not constitute "success" on the part of the parents, as contemplated by that word in Rule 24, such that it gave rise to an award of costs against the society;

10. The granting of leave to withdraw the application was not the society's decision; it was the court's decision; and pursuant to Rule 12, it was not a decision which gave rise to an award of costs against the society; and

11. The parents did not have a right to a trial and, accordingly, the court's decision to discontinue the protection proceedings did not amount to a violation of the parents' rights under the Charter.

[169] For all of the foregoing, I must conclude that the parents' request for a costs order is without merit.

[170] The parents' motion for costs is dismissed.

Justice Robert J. Spence

February 1, 2016