WARNING

The court directs that the following notice shall 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 File and Parties

Court File No.: Toronto C92509/16 Date: 2017-09-29 Ontario Court of Justice

Between:

Jewish Family and Child Service of Greater Toronto Applicant

— And —

L.R. and T.D. Respondents

Before: Justice Curtis

Written Submission regarding Costs of two motions

Reasons for Judgment released on: 29 September 2017

Counsel:

• Sara Westreich for the applicant Jewish Family and Child Service of Greater Toronto
• Sarah Clarke for the respondent father L.R.
• Robyn Switzer for the respondent mother T.D.
• Seema Jain for the children

CURTIS, J.

INDEX

1. Overview
2. The Positions of the Parties on the Motions
3. Results of the Motions
4. Positions of the Parties regarding Costs
5. Background
6. The Legal Framework for the Motions
7. Circumstances of the Motions
8. The Costs Analysis
   • a. The Law of Costs
     • i. Entitlement
     • ii. The Evolution of Costs as an Instrument of Social Policy
     • iii. Costs and the Office of the Children's Lawyer
   • b. Quantum of Costs
   • c. Analysis
     • i. Mother's Claims for Costs
     • ii. Costs Claim of J.F. & C.S.
9. Order

Overview

1. This is the decision regarding costs of two motions brought by the Jewish Family and Child Services of Greater Toronto ("J.F. & C.S.", or "the agency") in the protection application regarding H.P. (15 years old) and C.T. (12 years old). J.F. & C.S. brought motions for the following orders:

   a) An order under s. 39(4) of the Child and Family Services Act ("C.F.S.A.") that the children H.P. and C.T. not be permitted to attend court in this case; and,

   b) An order that the children H.P. and C.T. shall not be provided with the report of Howard Hurwitz dated 28 April 2017 ("the Hurwitz Report"), except as directed by Mr. Hurwitz.

The Positions of the Parties on the Motions

2. While J.F. & C.S. was the moving party on both motions, the issues were before the court for determination at the request of the Office of the Children's Lawyer, as the children asked to be present in court and asked to receive and read the Hurwitz Report, and at the request of the father, who said he was going to bring the children to court and that he was going to provide them with the Hurwitz Report. J.F. & C.S. became the nominal moving party as a courtesy to the other parties.

3. J.F. & C.S. and the mother wanted the court to make both orders requested, that the children were not permitted to attend court, and that they were not to be provided with a copy of the Hurwitz Report.

4. The father and the Office of the Children's Lawyer opposed both motions, and wanted the children to be permitted to attend court and to be provided with a copy of the Hurwitz Report.

5. While the views of the children were clear (i.e., to oppose both motions) and had been communicated to the court in June 2017, no material was filed by the Office of the Children's Lawyer in response to the motions. However, the children's views and preferences were set out in detail in a written statement filed on consent, and were very clear.

Results of the Motions

6. The court made these orders on the motions (in Reasons for Decision released 13 July 2017):

   a) An order under s. 39(4) of the C.F.S.A. that the children shall not be permitted to attend court in this case (including that they shall not attend at the courthouse) and shall not receive notice of this case;

   b) An order that the children shall not be provided with the Hurwitz Report, except as directed by Mr. Hurwitz; and,

   c) The Reasons for Decision on the motions are not to be distributed to the children.

Positions of the Parties regarding Costs

7. The Reasons for Decision found that the motions were necessary as the father said that he intended to bring the children to court and to release the Hurwitz Report to them, and that the Office of the Children's Lawyer supported the father in these positions. In the motions decision, a timetable was established for written submissions for costs. All parties and the Office of the Children's Lawyer filed costs submissions. In fact, a significant amount of material regarding costs was filed by all involved.

8. J.F. & C.S. claimed costs of the motions only against the Office of the Children's Lawyer, and only for a discreet and narrow portion of the motions (the work done by them in reply), in the total sum of $3,850. The agency specifically declined to seek costs against the father.

9. The mother claimed costs, in the context of these two motions, as follows:

   • $4,776.02 for the costs of the motions as against the Office of the Children's Lawyer and the father; and,
   • $10,216.25 as the father's contribution (that is, one-half of the total) to the fees incurred for treatment services from Howard Hurwitz.

10. The father made no claims, and opposed the claims of the mother for costs against him (in both categories claimed).

11. The Office of the Children's Lawyer attempted to file a very large amount of costs material (about 264 pages), by fax, late in the day, on the final date set for their filing, Friday 11 August 2017. The material included Costs Submissions, an affidavit, affidavits of service and a Book of Authorities. The material was so large that it took several hours to complete the fax transmission at the courthouse. The material was not bound, tabbed, indexed or collated. Again, all parties (J.F. & C.S., the mother, the father) met the deadlines for serving and filing their costs materials. On 15 August 2017 the court granted the Office of the Children's Lawyer leave to serve and file their costs material in proper format (bound, tabbed and indexed) by Friday 18 August 2017.

12. The Office of the Children's Lawyer asks that the various claims for costs against them be dismissed, that there be no costs payable by them of the two motions, for either J.F. & C.S. or the mother, but that if such costs are ordered, that they be nominal, at $500 per affected party.

Background

13. The parents are T.D. (born 1966, 50 years old), "the mother" and L.R. (born 1966, 51 years old), "the father". The mother is in an M.S.W. program through a School of Social Work of a University. The father is a law professor at a University in Halifax.

14. There are three children of the marriage:

• J., born 1999 (who died on 2013 of cancer, at age 13)
• H.P., born 2001 (15 years old), and,
• C.T., born 2005 (12 years old).

15. J.F. & C.S. started the protection application on 19 December 2016, due to concerns that the children were at risk of emotional harm as a result of their exposure to the high level of conflict between their parents, following the death of their sibling J., the parent's separation and the ensuing acrimonious litigation. There were also concerns that the father was alienating H.P. from the mother and that, if given the opportunity, he would similarly alienate C.T.

16. The two motions were brought in the protection application by J.F. & C.S. The protection application sought (among other things):

a) A protection finding under C.F.S.A. s. 37(2)(g) and (g.1) (risk of emotional harm by the actions of the parents and by the refusal to consent to treatment);

b) For H.P., a six months supervision order placing him with the paternal grandparents;

c) For C.T., a six months supervision order placing her with the mother; and,

d) All family members are to participate in individual and family counselling.

17. J. died on 2013, and there has been much upset, conflict and litigation since then for this family. The consequences of the family member's grief and reaction to losing a child have been dramatic, traumatic, long-lasting, and toxic. The parents separated in August 2013, and the father accepted a job teaching in Halifax.

18. In May 2014, J.F. & C.S. began to work with the family due to concerns about the children's exposure to parental conflict. The police were involved in several confrontations between the parents, some in the presence of the children. There was litigation in the Superior Court and in the Ontario Court of Justice. There was a confrontation at the offices of the J.F. & C.S.

19. The factual background to this family's involvement with the J.F. & C.S. is set out in detail in the Reasons for Decision on the motions.

20. The level of conflict between the parents in this matter is extraordinary. It has been described as such repeatedly by the various professionals (from various backgrounds) called upon to try to help this family.

21. After the motions were heard and determined, a temporary care and custody hearing was held (on 17 July and 15 August 2017) and the parties agreed on terms. H.P. was to have supervised access to his father. C.T. was to continue to live with her mother under a supervision order. On 15 August 2017 it was agreed that H.P. would live with his mother under a supervision order. All of these consents were incorporated into court orders.

The Legal Framework for the Motions

22. The legal framework for the motions was a complicated one. The motions were decided under a variety of legal constructs, including the United Nations Convention on the Rights of the Child, the C.F.S.A. (ss 1, 38, 39, 54, and 116), and the Rules of Professional Conduct of the Law Society of Upper Canada (rule 3.2-9). Regarding the issue of the release to the children of the Hurwitz Report, the statute is silent on that issue and there was little or no case law to assist.

23. The timelines under which the motions were prepared, presented and determined were extremely tight. The tight timelines was the choice of the parties and the Office of the Children's Lawyer, as the parties (and particularly the Office of the Children's Lawyer) wanted these motions decided before the temporary care and custody motion was heard, which was then scheduled for 17 July 2017. J.F. & C.S. did not want further delay in the hearing date of the temporary care and custody motion.

Circumstances of the Motions

24. On 1 June 2017 the parties were notified that the children intended to come to court on 19 June 2017, a case conference date, and that they wished to see the Hurwitz Report. On 19 June 2017, the court set 17 July 2017 as the return date for the temporary care and custody motion.

25. In June 2017 the Office of the Children's Lawyer, on a Form 14B request, raised with the court the children's requests to be present in the courtroom and to receive a copy of the Hurwitz Report. An order was made on 14 June 2017 that motions should be brought to determine these issues, with proper evidence and facta. The order also provided, on a temporary without prejudice basis, that the children should not attend court until that issue was determined, and that no person and no party should provide the children with a copy of the Hurwitz Report until that issue was determined. At the case conference, the parties and the Office of the Children's Lawyer agreed that the motions would be determined on written material only, and they agreed (in writing) to a timetable for serving and filing their material (evidence, submissions, facta and briefs of authorities) as follows:

• J.F. & C.S. by Friday 30 June 2017 (to be filed by Tuesday 4 July 2017);
• Mother by Wednesday 5 July 2017;
• Office of the Children's Lawyer and father by Friday 7 July 2017; and,
• J.F. & C.S. reply by Tuesday 11 July 2017.

26. The actual timetable for serving and filing material on the two motions was designed by the parties and the Office of the Children's Lawyer, with no input from the court, and agreed to by the parties and the Office of the Children's Lawyer. The timeline for serving and filing motions material, then the hearing of the temporary care and custody motion, was extremely tight. This was at the request of the parties and the Office of the Children's Lawyer. The parties (and particularly the Office of the Children's Lawyer) were quite insistent with the court that the two motions should be dealt with and decided before the temporary care and custody motion was heard. And the J.F. & C.S. was requesting an early date for that motion to be heard.

27. As a result of the timeline designed by the parties and the Office of the Children's Lawyer, the court, in fact, was expected to review all the motions materials (two motions, from three parties and the Office of the Children's Lawyer, evidence, submissions, four facta and case briefs) and produce a decision on the two motions before the date set for the temporary care and custody motion. The timetable designed by the parties and the Office of the Children's Lawyer provided for only three business days from the last filing date until the motion date, which meant that the court was expected to review the material, determine the motions, write the decision and release the decision on the two motions in three business days. This was a very high expectation by the parties and the Office of the Children's Lawyer.

28. The J.F. & C.S. served and filed their material on Friday 30 June 2017. The mother served and filed by Wednesday 5 July and the father served and filed by Friday 7 July 2017.

29. Apparently, the Office of the Children's Lawyers served their material at 5:54 p.m. on Friday 7 July 2017 (except for their factum). The parties had agreed that e-mail service would be acceptable, and due to the size of the package, the J.F. & C.S. did not receive the material from the Office of the Children's Lawyer until late Saturday night 8 July 2017. The Office of the Children's Lawyer served additional case law on J.F. & C.S. at 10:30 a.m. on Monday 10 July 2017. On Monday 10 July 2017 J.F. & C.S. filed their reply factum.

30. The Office of the Children's Lawyer did not file materials before the agreed upon deadline of Friday 7 July 2017. They did not seek an extension to file, and did not file materials the next business day, Monday 10 July 2017. J.F. & C.S. filed their reply material on Monday 10 July 2017. On Tuesday 11 July 2017, the Office of the Children's Lawyer sought an extension of the time (on a Form 14B motion) to file their material, on the consent of the parties. The court refused the request with this endorsement:

Request by children's lawyer to extend time to serve and file materials on motions is dismissed.

The parties consented to these motions being heard on written materials only and agreed to a specific timetable for serving and filing materials.

All other parties (J.F. & C.S., the mother, the father) served and filed their materials in accordance with the timelines.

The children's lawyer did not.

No request was made before the expiration of the timeline for an extension of time, nor was a request made on the final day permitted 7 July 2017.

The fact of consent to the extension by other parties does not determine whether such an extension should be ordered.

The children's detailed views and preferences were filed, on consent, in a one page written document.

Given the high conflict in this litigation and the pressure from all parties for the issues on these motions to be resolved, it is, indeed, surprising that the children's lawyer did not meet the filing deadline, a timetable she participated in designing and to which she consented.

31. Despite the very narrow timeframe, the decision on the two motions was released on Thursday 13 July 2017 (in advance of the date set for the temporary care and custody hearing, 17 July 2017).

The Costs Analysis

The Law of Costs

Entitlement

32. The courts have a broad discretion to award costs. The general discretion of the courts regarding costs is contained in the Courts of Justice Act s. 131(1), which sets out three specific principles:

a) the costs of a case are in the discretion of the court;

b) the court may determine by whom costs shall be paid; and,

c) the court may determine to what extent the costs shall be paid.

33. Modern costs rules are designed to foster three fundamental purposes: Fong v. Chan:

(a) to indemnify successful litigants for the cost of litigation;

(b) to encourage settlement; and

(c) to discourage and sanction inappropriate behaviour by litigants.

34. Rule 2(2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with Rule 24 of the rules: Sambasivam v. Pulendrarajah.

35. The successful party is entitled to costs under Rule 24(1). Rule 24(2) says that there is no such presumption in a child protection case, or if the party is a government agency.

36. Rule 24(3) sets out the court's discretion to award costs to or against a government agency whether it is successful or not.

37. Both the J.F. & C.S. and the Office of the Children's Lawyer are government agencies for these purposes.

The Evolution of Costs as an Instrument of Social Policy

38. The tenor of the Family Law Rules recognizes the increasing demand on limited court and judicial resources and the increasing costs of litigation. The rules therefore attempt to encourage settlement and discourage unnecessary or prolonged litigation and unreasonable behaviour on the part of litigants and their counsel that is wasteful of time and money. The focus of the Rules is on efficiency, efforts at settlement and not acting unreasonably: Children's Aid Society of St. Thomas (City) & Elgin (County) v. S. (L.).

39. The traditional purpose of an award of costs was to indemnify the successful party in respect of the expenses sustained. For some time, however, courts have recognized that indemnity to the successful party is not the sole purpose, and in some cases not even the primary purpose, of a costs award. The principle of indemnification, while paramount, is not the only consideration when the court is called on to make an order of costs; indeed, the principle has been called "outdated" since other functions may be served by a costs order, for example to encourage settlement, to prevent frivolous or vexatious litigation, and to discourage unnecessary steps. This change in the common law was an incremental one when viewed in the larger context of the trend towards awarding costs to encourage or deter certain types of conduct, and not merely to indemnify the successful litigant: British Columbia (Minister of Forests) v. Okanagan Indian Band.

40. The traditional approach to costs can also be viewed as being animated by the broad concern to ensure that the justice system works fairly and efficiently. Because costs awards transfer some of the winner's litigation expenses to the loser, rather than leaving each party's expenses where they fall, they act as a disincentive to those who might be tempted to harass others with meritless claims. In addition, because they offset to some extent the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position. These effects of the traditional rules can be connected to the court's concern with overseeing its own process and ensuring that litigation is conducted in an efficient and just manner. In this sense it is a natural evolution in the law to recognize the related policy objectives that are served by the modern approach to costs: British Columbia (Minister of Forests) v. Okanagan Indian Band.

41. Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice: British Columbia (Minister of Forests) v. Okanagan Indian Band.

42. When awarded on a full recovery scale, costs can serve to express the court's disapproval of unreasonable conduct during the litigation: Prinzo v. Baycrest Centre for Geriatric Care.

Costs and the Office of the Children's Lawyer

43. The court has a discretion to award costs against a non-party, including the Office of the Children's Lawyer, by virtue of its common law jurisdiction to control its own processes under s. 131 of the Courts of Justice Act: Takis v. Takis.

44. The Office of the Children's Lawyer, as legal representative for the child involved in litigation, has powers to present and examine witnesses, cross-examine witnesses, engage in the discovery process, make arguments and submissions to the court. The Office of the Children's Lawyer can make a claim for costs as against other litigants and, in a number of cases has been successful in these claims in child protection cases: Children's Aid Society of St. Thomas (City) & Elgin (County) v. S. (L.).

45. A litigant who is entitled to claim costs against a party or parties should expect to be responsible for and be exposed to a claim for costs by others, in an appropriate case: Children's Aid Society of St. Thomas (City) & Elgin (County) v. S. (L.).

46. The general common law principal is that right entitles responsibilities. Giving the Office of the Children's Lawyer rights of a party, but not the responsibilities, would violate a common law principle of a sense of reasonableness and fairness: R. (C.) v. Children's Aid Society of Hamilton.

47. The real issue is whether the Children's Lawyer should have responsibilities of a party by the same token that it has rights of a party. Subrule 4(7) of the Family Law Rules states that the child has the rights of a party. Because subrule 4(7) states that the child has the rights of a party, rules that speak about rights of parties apply to the Children's Lawyer. Similarly, if it is accepted that responsibilities should be read into subrule 4(7), those rules that speak about obligations of parties would have to apply to the Children's Lawyer. This conclusion is supported by the existing common law and by an examination of the absurd consequences that could result from a decision that holds that the Children's Lawyer has rights without responsibilities: R. (C.) v. Children's Aid Society of Hamilton.

48. Counsel for children in child protection matters are subject to the same obligations as all other counsel: Children's Aid Society of St. Thomas (City) & Elgin (County) v. S. (L.); F. (V.) v. F. (J.).

49. A sense of immunity from costs may blind or desensitize a party or non-party litigant to the fact that other litigants are incurring costs and expenses to be involved in the court process. Immunity from costs could result in lack of accountability to the court process: Children's Aid Society of St. Thomas (City) & Elgin (County) v. S. (L.).

50. The lawyer representing the child through the Office of the Children's Lawyer has to be kept to the same standard as other counsel in not wasting time and incurring unnecessary expenses: Children's Aid Society of St. Thomas (City) & Elgin (County) v. S. (L.).

51. The Office of the Children's Lawyer argues that awarding costs against them will send a chilling message that will discourage them from pursuing litigation in other child protection cases and affect the manner in which these cases are handled. If the message that is taken from this decision is that the Office of the Children's Lawyer might monitor more closely how individual cases are handled by panel lawyers, then the message is not a "chilling one", but an instructive one: Children's Aid Society of St. Thomas (City) & Elgin (County) v. S. (L.); F. (V.) v. F. (J.).

52. The message can also be that, when the Office of the Children's Lawyer engages in litigation as legal representative of the child, they are subject to the same rules of competency, knowledge of the law and of the rules of evidence as all other lawyers and have the same obligations under subrule 2(2): Children's Aid Society of St. Thomas (City) & Elgin (County) v. S. (L.); F. (V.) v. F. (J.).

53. The primary objective of the rules is dealing with cases justly: subrule 2(2). This objective includes ensuring that the procedure is fair to all parties, saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity, and giving appropriate court resources to the case while taking account of the need to give resources to other cases: subrule 2(3). Presumably, all of the rules are geared toward ensuring that the primary objective is achieved. Allowing the Children's Lawyer to participate as a litigant with all the accompanying rights of parties but no responsibilities would frustrate this primary objective: R. (C.) v. Children's Aid Society of Hamilton.

54. Any person whose conduct "flies in the face" of the primary goals of the Family Law Rules may be subject to cost consequences. Those persons include the Office of the Children's Lawyer: R. (C.) v. Children's Aid Society of Hamilton; F. (V.) v. F. (J.).

55. The question then, in any case where a non-party plays a significant role in the litigation is not whether a court has jurisdiction to make an award of costs but whether, having regard to all the circumstances of the case, including that non-party's conduct, such an order ought to be made: Children's Aid Society of Toronto v. L. (L.).

56. It is clear from the case law that, absent a finding of bad faith, the court still retains the jurisdiction and the discretion to make an order for full indemnity for costs where the circumstances require it.

Quantum of Costs

57. Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome: Boucher et al. v. Public Accountants Council for the Province of Ontario.

58. Costs awards should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties, rather than any exact measure of the actual costs to the successful litigant. It is not appropriate to simply take the number of hours spent by counsel on a particular matter and multiply those hours by a determined hourly or per diem rate: Zesta Engineering Ltd. v. Cloutier.

59. The over-riding principle is reasonableness. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: Boucher et al. v. Public Accountants Council for the Province of Ontario.

60. The factors to consider in determining the amount of costs in family law matters are (Rule 24(11)):

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.

Analysis

Mother's Claims for Costs

61. The mother claims costs in two separate categories:

• $4,776.02 for the costs of the motions as against the Office of the Children's Lawyer and the father; and,
• $10,216.25 as the father's contribution to the fees incurred for services from Howard Hurwitz.

62. The father defends the mother's claim for costs of the motions on the basis that he was not the moving party on the motions. That is disingenuous and even misleading. The father stated that he intended to bring the children to court and to give them copies of the Hurwitz Report. The father was the cause of these issues being before the court.

63. Regarding the costs of the two motions, it is unclear, on the material submitted by the mother, what portion of the $4,776.02 in costs the mother is seeking from the Office of the Children's Lawyer and what portion is sought from the father. No specific claims as against each are made. And the summary of time spent does not set out the dates on which services were performed.

64. Unlike the J.F. & C.S., the mother was not put to additional work by the failure of the Office of the Children's Lawyer to meet the filing deadlines. Her claim for costs against the Office of the Children's Lawyer is dismissed.

65. There will be no order as to costs of the motions as between the father and the mother. While the father may have been the instigator of the issues on these two motions, the state of the law on both these issues made it appropriate to ask the court to decide these issues. S. 39 of the C.F.S.A. provides a presumption that children over 12 years old can attend court, unless the court orders otherwise. And there is no C.F.S.A. section and no case law dealing with the question of disclosure of a report like the Hurwitz Report to the children.

66. There will be no order as to costs regarding the cost of the Hurwitz treatment, and that claim is dismissed. That claim is not appropriate in the context of costs of the two motions. As well, there is a consent order in Superior Court by Wilson, J. made 10 November 2016 that deals with the apportionment of costs for this treatment. Pursuant to this order, the father is to submit therapeutic invoices for reimbursement to his insurance (which the mother says he has not done), and the balance of all costs incurred are to be covered by the mother's family. If there is a dispute about the payment for this treatment, the proper forum for resolving that appears to be the Superior Court of Justice.

Costs Claim of J.F. & C.S.

67. Costs are being claimed, and considered in this case not due to the positions taken in the motions by various parties and the Office of the Children's Lawyer, but rather as a result of the conduct of the case, and the consequences for others of that conduct. Even taking into account the provisions of Rule 24(2), the litigation conduct of the Office of the Children's Lawyer in this case was egregious and disappointing, particularly from an institutional litigant, and warrants an order for costs.

68. The Office of the Children's Lawyer is clearly to be held to the same level of accountability as the parties in the case, and has obligations as well as rights in the case. They concede this in their factum, and concede that they should not be exempt from the responsibilities applicable to other participants in the court process. The conduct of the Office of the Children's Lawyer was directly responsible for additional costs by the J.F. & C.S. The Office of the Children's Lawyer shall pay costs to the J.F. & C.S.

69. Most of the costs submissions of the Office of the Children's Lawyer addressed the issue of entitlement for costs. There was very little presented regarding the amount of costs.

70. In determining the amount of costs in this matter, the court took into account these factors set out in R. 24(11), as follows:

a) The importance, complexity or difficulty of the issues: the case was important to the mother, the father and the children. As well, it was legally complex and difficult. The case was also very high conflict, large amounts of material were served and filed (including facta and briefs of authorities) and it was presented and determined on a very tight timeframe;

b) The reasonableness or unreasonableness of each party's behaviour in the case: a finding of unreasonableness is not necessary to the making of a costs order. The parties and the children were entitled to have these issues determined by the court. The court makes no findings regarding reasonableness for bringing these matters to court for determination;

c) The lawyer's rates: the rate claimed for the J.F. & C.S. lawyer is appropriate. The Office of the Children's Lawyer made no submissions regarding the hourly rate;

d) The time properly spent on the case: The time spent by the J.F. & C.S. lawyer on the reply issue was reasonable, under these circumstances, given the issues at stake, the claims made by the Office of the Children's Lawyer, the amount of material served, and the tight timeframe involved. The Office of the Children's Lawyer made no submissions regarding the time spent; and,

e) Expenses properly paid or payable: no disbursements were claimed by the J.F. & C.S.

71. The court must determine an amount that is fair and reasonable for the Office of the Children's Lawyer to pay in the particular circumstances of this case. This determination is not merely an arithmetical exercise of calculating time spent by a suitable hourly rate. The costs award in this case should take into account and reflect the amount of work necessary for the J.F. & C.S. to reply to the materials from the Office of the Children's Lawyer that were never filed.

72. Costs must be fair and reasonable, and proportional to what was in issue and the outcome. Everyone on this case was working under difficult and tight timelines. All of the parties, but not the Office of the Children's Lawyer, met the filing deadlines. The conduct of the Office of the Children's Lawyers on these motions resulted in direct and quantifiable cost to the J.F. & C.S. The failure of the Office of the Children's Lawyer to meet the filing timelines, or to seek an extension of those timelines before they expired, caused additional and unnecessary work by the J.F. & C.S., for which they should be compensated. To order no costs in circumstances such as these sends a message that the Office of the Children's Lawyer has a special status and does not have to comply with the rules of court. That is not so.

73. The amount of costs claimed by J.F. & C.S. against the Office of the Children's Lawyer in this case was modest ($3,850), and could even be described as a small amount. The Office of the Children's Lawyer is fortunate in this matter that the J.F. & C.S. is not seeking other costs. It is surprising and disappointing that this could not be settled. The Office of the Children's Lawyer should consider reviewing its policies regarding when and on what issues to expend its resources, and further, whether paying a small amount of costs is a better plan than risking a decision that expands the limited jurisprudence in this area.

Order

74. The mother's claims for costs are dismissed.

75. The Office of the Children's Lawyer shall pay costs to the J.F. & C.S. A fair and reasonable costs order, and one that is proportionate to the issues involved, in all of these circumstances, is $3,850, to be paid immediately.

76. These Reasons for Decision are not to be distributed to the children.

Released: 29 September 2017 Justice Carole Curtis