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 45(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 on publication of identifying information

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) 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) Offence

A person who contravenes subsection 45(8) (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

Red Lake Registry No.: ON FO-15-009-00

Date: 2016-10-24

Ontario Court of Justice

Between:

Kenora Rainy River District Child and Family Services, Applicant

— And —

T.D., Respondent

Before: Justice Peter T. Bishop

Heard on: 31 August 2016

Reasons for Judgment released on: 24 October 2016

Counsel:

• David J. Elliott — counsel for the applicant society
• Luke M. Ruberto — counsel for the respondent T.D.

JUSTICE P.T. BISHOP:

1: BACKGROUND

[1] This matter comes before me by way of submissions for costs after a trial held on 20 April 2016, 9 May 2016 and 13 June 2016. The applicant, Kenora Rainy River District Child and Family Services, is seeking costs against the mother, T.D.

[2] Counsel for the father and for the children's lawyer took no position in the trial and have not appeared at this hearing.

[3] At trial, the court made the following findings:

1. Having heard the evidence, the court found the mother to be unbelievable and did not accept her evidence. Where there was a difference between the society workers, the school principal and vice-principal, and others, the court accepted their evidence. The mother engaged in a revisionist history of what really happened at the time of apprehension. The society had proven that, at the time, there was a risk of physical or emotional abuse.

2. I am finding that the children's aid society has proven that, at the time of apprehension, the child was in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) and clause 37(2)(g) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, for the following reasons:

(i) The mother disclosed certain paranoia behaviour by stating that she was being followed by her ex-partner and a link to her cell phone was controlling her music. She was worried that there was someone in the home controlling her.

(ii) She disclosed that she and her daughter have psychic connections although there is no proof of that and the daughter told Ms. MacKenzie that her mom was acting weird, not in a nice way.

(iii) The behaviour of dancing in the rain and singing by a fire pit in the early morning for a period of time is not normal behaviour and I do not accept the explanation by the mother that she was simply burning personal papers. There is an inference that emotionally she was out of control, which was recognized by the school principal.

(iv) The mother asked for help from the school principal because the child was hitting her and the child was at risk of being physically disciplined by the mother.

(v) The mother did not set up emergency contacts but left the child unattended and there was no one there for the child from time to time. The arrangements for the safety of the child were to go to a friend's or neighbour's house but the friend or neighbour had no idea that the child was instructed to do so.

(vi) As a result of the mother's behaviour, the child did not feel safe in the home with her mother and felt that people were in the home, namely previous residents or ghosts were there.

(vii) The mother told the child that someone is going to take her away from her.

(viii) At the time of apprehension, the mother would not allow the child to go with her grandparents as she disclosed that her father was sexually abusive. She clarified that at trial but denied making that statement but vaguely suggested that it was an uncle who was responsible.

(ix) As the child's father sought to seek legal advice and the temporary care and control agreement was not signed by him, the agency apprehended the child as there was no viable reasonable option to protect the child from the risk of emotional and physical harm.

(x) I take note of and rely upon Section 50.1 of the Child and Family Services Act where Justice Sarah S. Cleghorn ruled on 27 July 2015 that "there was a real risk of harm to the child should she be returned to the care of the mother". The mother is currently suffering from mental health concerns that require time to stabilize. My further concern was the lack of supervision of the child that places the child at risk. Also, pursuant to Section 50.1 of the Child and Family Services Act, I have addressed Dr. Usama Zahlan's letter wherein he specifically stated "that he treated the mother for bi-polar disorder type 2 and that diagnosis was noted by two or three psychiatrists prior to his involvement with this family".

(xi) As stated at the beginning of this hearing, all the parties agree that no further order of the court is required as matters have stabilized and the child is and has been placed with the mother since 29 February 2016. For all of those reasons, the order of the court is no further order.

[4] The agency refers the court to subsection 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, which states as follows:

131. Costs.— (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[5] Further, counsel for the agency refers the court to the Family Law Rules, O. Reg. 114/99, as amended, particularly subrule 24(2):

(2) No presumption in child protection case or if party is government agency.

The presumption does not apply in a child protection case or to a party that is a government agency.

(3) Court's discretion — Costs for or against government agency.

The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful.

(4) Successful party who has behaved unreasonably.

Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs.

(5) Decision on reasonableness.

In deciding whether a party has behaved reasonably or unreasonably, the court shall examine:

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

(6) Divided success.

If success in a step in a case is divided, the court may apportion costs as appropriate.

(7) Absent or unprepared party.

If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.

(8) Bad faith.

If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

(9) Costs caused by fault of lawyer or agent.

If a party's lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard:

(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;

(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;

(c) order the lawyer or agent personally to pay the costs of any party; and

(d) order that a copy of an order under this subrule be given to the client.

(10) Costs to be decided at each step.

Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.

(11) Factors in costs.

A person setting the amount of costs shall consider:

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

(b) the reasonableness or unreasonableness of each party's behaviour in the case;

(c) the lawyer's rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

(12) Payment of expenses.

The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer's fees.

[6] Further, the agency submits that the statement of agreed facts was in effect an offer to settle and this position is acknowledged by counsel for the mother.

[7] The agency submits that this is an appropriate case for costs and has rebutted the presumption for the following reasons:

1. The protection findings that were made at trial were the same as at the temporary stage shortly after the child was apprehended as found by Justice Cleghorn in her decision on 4 August 2015.

2. As early as February 2016, the agency indicated that it was seeking no further order of the court if the mother signed a voluntary service agreement. This, in the agency's mind, was reasonable. The agency was not seeking an intrusive disposition but rather was having the child remain where she was if the mother signed a voluntary service agreement. The agency, from the beginning, was working with her and never did retract from the protection concern at the time of apprehension.

3. Justice Cleghorn found that the mother was willingly, knowingly deceitful and there were several attempts by the agency to engage with a statement of agreed facts.

4. Further, the mother was not truthful under oath and her case was without merit.

5. Throughout this proceeding, there were twenty court appearances with the statement of agreed facts circulated on 19 January 2016. The child was returned to the mother on 29 February 2016 and there was no response whatsoever by the mother or her counsel to the statement of agreed facts.

6. It was contemplated that the agency's case would be put in by affidavit with the affiants being present for cross-examination. Counsel for the mother brought a motion to strike the affidavits which was not argued as the agency simply decided to call all of the evidence and the court notes that most of the evidence, including the impugned paragraphs objected to by counsel for the mother was admitted at trial.

7. The statement of agreed facts was initially circulated in November 2015 and updated in February 2016 and recirculated.

8. In the cases put forward by the mother — Jewish Family and Child Services of Greater Toronto v. Y.B., C.B., H.S. and S.S., 2011 ONCJ 633 and Jewish Family and Child Services of Greater Toronto v. S.K. and J.K., 2016 ONCJ 165 — are distinguished on the facts as there was outrageous egregious behaviour by parental litigants, which was clearly objectifiable. That is not the case here.

2: POSITION OF THE MOTHER

[8] It is the mother's position that one motion brought by the mother was successful and the agency, if it had such a strong case, should have brought an application for summary judgement.

[9] The mother characterized her position as a credibility issue and she has the statutory right to a trial. She believes that she was not diagnosed as bipolar.

[10] The mother did not sign the statement of agreed facts and her conduct was not unreasonable at trial.

[11] The mother should not be penalized for taking this matter to trial and both the father and the Office of the Children lawyer took no position.

3: DECISION

[12] I have carefully reviewed the submissions of both parties and am finding that this is one of those rare cases where costs should be ordered against the mother for the following reasons:

1. This is much more than a simple credibility issue as the mother as early as 4 August 2015 had the decision of Justice Cleghorn indicating the protection concerns and that finding of that time was confirmed at trial almost a year later. Nothing had changed; two judicial officers came to the same findings independently on the same evidence, which should have been recognized and accepted by the mother.

2. Any litigant has the statutory right to trial but there are consequences to exercising that right if they have acted unreasonably. The mother was most unreasonable in these circumstances and refused to accept the evidence but, as stated, engaged in a revisionist view of history as to what actually happened and what she told the teachers and the child welfare workers and other individuals.

3. The mother and her counsel completely ignored the statement of agreed facts which admittedly was an offer to settle. This matter could and should have been resolved if there had been a careful review of the statement of agreed facts which did not change from the date of the apprehension to the trial. Further, the mother did not acknowledge the statement of agreed facts and through her actions challenged the agency to go to trial.

4. I reject the position by the mother that costs against a litigant will put a chill on litigation. There is no evidence to support that position and all litigants must be responsible and forthright in their position and presentation of evidence. The court at trial found that the mother was not forthright and contradicted statements that she made earlier to other witnesses.

[13] I also reject the mother's position that the agency should have proceeded by way of summary judgement if it had such a strong case. There is no onus on the agency to do so. At every step, the agency was reasonable and attempted to engage the mother and keep the best interests of the child front and centre at all times. Further, the agency was seeking the least intrusive order — no further order.

[14] I also reject the inference that, because the father and the children's lawyer did not participate in the trial, or this hearing on costs that somehow translates into support for the mother. There is no evidence to support that view and I reject it. Their decision not to participate is much more consistent with supporting the agencies position with a view to minimizing costs to their respective clients.

4: BILL OF COSTS

[15] The agency has filed a bill of costs itemized as counsel fee of $4,080 plus HST and disbursements in the amount of $2,569.40 for a total of $7,179.40.

[16] I find the hourly rate of counsel for the agency at $300 entirely appropriate for his years of experience being called to the bar in 1978.

[17] The agency was put to great expense bringing witnesses from Southern Ontario, and other parts of Northwestern Ontario and has incurred disbursements of $2,569.40.

[18] I have addressed my mind to the fact that the mother as disclosed by her counsel was on a legal aid retainer but that should have no bearing on assessing her responsibility for costs.

[19] The mother produced no financial disclosure, whether or not she was employed or had debts or any other financial responsibility.

[20] In these circumstances, I order that the mother pay the agency nominal counsel costs in the amount $500, plus full disbursements in the amount of $2,569.40 totalling $3,069.40 payable forthwith.

Released: 24 October 2016

Signed: "Justice Peter T. Bishop"