WARNING

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

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

45.— (8) 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.

85.— (3) 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

Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

And in the Matter of A.L., a child apparently in need of protection

Between:

Kunuwanimano Child and Family Services (K. Guillemette)

North Eastern Ontario Family and Children's Services (D. Degrace)

— And —

S.L. (S. Migneault) — Removed by order July 17, 2017

Y.T. (E. Jean)

D. Boucher (OCL) for child — Removed by order May 25, 2016

Heard: By written submissions

Before: Kukurin J.

Reasons for Decision on Costs

[1] Introduction

These are my Reasons for my decision on a claim for costs sought by the Respondent father against the Applicant Society, Kunuwanimano Child and Family Services (hereinafter called "Kunuwanimano"), as well as against North Eastern Ontario Family and Children's Services (hereinafter called "NEOFACS"). The name of the costs proceeding is different from the name of the original proceeding in several respects. Kunuwanimano and NEOFACS were both shown as Applicants at different times. Moreover, the issue of costs was clarified to include both societies. I also ordered, in my final order following trial, that NEOFACS was thereafter the proper applicant in this case.

[2] Status of Counsel

Counsel for the mother has been removed by court order of Labelle J. dated July 17, 2017. No other counsel has surfaced to identify himself or herself to be counsel for the mother.

Clarification of Claim for Costs

[3] Background and Context

The history of this case creates an unusual context for the claim for costs. That history was set out in my Reasons following the trial in this child protection case which are available at [2017] O.J. No. 4008 or at 2017 ONCJ 518 (trial Reasons). Any contextual information not contained in such Reasons will be included in these Reasons on the issue of costs.

[4] Parties Seeking Costs

There is only one party advancing any claim. That is the Respondent father in this case. He is seeking costs against NEOFACS based on a number of alleged failings by this society in its role in this case. He is also seeking costs against Kunuwanimano for its alleged failings in its role as a society in this case. Both of these societies oppose the claim for costs sought by the father against each of them. The NEOFACS society asks that if costs are awarded, they should be borne by Kunuwanimano.

[5] Particulars of Costs Claim

The claims for costs are set out in the Notice of Motion of the father filed as I directed by anyone seeking costs. The claim is particularized as follows:

1. An Order for costs of the trial heard on the following dates: May 25, 26, 27, August 11, November 3, 4, 8, 9, 10, December 6, 7, 20, 21 and 22, 2016 in the following amounts: Fees $87,821.34 HST at 13% and Disbursements $2,295.17 including HST, Total Costs of $90,116.51, based on a full recovery basis and pursuant to Rules 18 and 24 of the Family Law Rules, O. Reg. 114/99, and based on the facts and submissions set out in the attached Affidavit.

2. An Order that the fixed and awarded costs in the amount of $90,116.51 to the Respondent father shall be payable forthwith and jointly and severally payable by the Applicants Kunuwanimano Child & Family Services and North Eastern Ontario Family & Children Services payable to Emmanuelle Jean in Trust.

[6] The Wrinkle: Two Applicant Societies

There is a wrinkle in this costs issue. That relates to the fact that there appears to be two applicant societies in this one child protection case, albeit at different times. The reasons for how this came to be are set out in my trial Reasons. They also involved the father, and his counsel, and the roles that they played in the reality that two different societies were involved. The father's contribution to this was a considerable one, and it factors into his claim for costs. The societies also had a role.

Transfer of File – The Turning Point

[7] Chronology of Events

It is necessary to review the temporal chronology of what took place in this case. The following list of events in chronological order are relevant to the temporal context:

• Sept 23, 2014 — Apprehension of child by NEOFACS from the child's mother.

• Sept 26, 2014 — First court date of NEOFACS application and of temporary care and custody motion. Respondent mother and father served on same day. Child identified under s.47(2) as not native. Interim without prejudice order makes child a society ward (sic). Order also that [parental] access (unspecified as to location, time, duration or frequency) be supervised.

• Dec 16, 2014 — Parenting Capacity Assessment ordered on consent of all parties to be done by Dr. M. Sroga under s.54 with a report thereof to be filed by her by March 30, 2015. Report dated April 20, 2015 and filed April 27, 2015.

• April 13, 2015 — Maternal grandmother files motion to be added as party. Motion opposed by NEOFACS and by Respondent mother. Motion heard July 27, 2015. Claim to be added as party is dismissed.

• June 4, 2015 — Motion by NEOFACS to amend claim to crown wardship, with no access, and for OCL lawyer to represent child. Motion heard July 27, 2015 and order made to amend application claims accordingly, and for OCL representation for child. New Plan of Care filed by NEOFACS to reflect amended claims.

• July – Aug 2015 — Request made by father, via his counsel, for NEOFACS to transfer its file to Kunuwanimano. NEOFACS initially reluctant. Nevertheless, NEOFACS makes "official request" to Kunuwanimano on Aug 12, 2015 for transfer. On Aug 28, 2015, Kunuwanimano alerted NEOFACS that certain files may be transferred back to NEOFACS because "proper documentation from a band" was not forthcoming. Kunuwanimano did not "transfer file back".

• Oct. 6, 2015 — Motion filed by father for temporary care and custody to father, with alternative claims for temporary care and custody to the maternal great grandmother, for unsupervised paternal access, for increased paternal access at a different location, and for access to information re child. Motion not heard until after "transfer of file" to Kunuwanimano. Motion claim heard Jan 18, 2016 and claim for paternal temporary care and custody dismissed. Father ordered to continue to have individual access at his home and to be supervised by the [child's] great grandmother.

• Oct 26, 2015 — File endorsement "On consent. Transfer of file to Kunuwanimano". No motion seeking this order was ever filed by any party or non-party. However, it is clear from the court file that impetus for this "transfer" originated with the father and his counsel, clearly prior to July 22, 2015. Father filed his sworn affidavit (at Tab19, Vol.1) indicating that Arthur Tremblay, who was of the Moose Cree First Nation, had adopted the father when he was a child, and that Aboriginal Foreign (sic) Affairs and Northern Development Canada had confirmed that the adoptive father's native status had been passed on to the father. The father also indicated under oath that the child in this case is "Native and Metis". None of this was true and was contradicted by the father himself at trial. The father's counsel indicated to NEOFACS that the father's mother had confirmed that she was "Metis" from her mother's side, and repeated that the father was adopted by Arthur Tremblay "who was Native". This also was not substantiated at trial. The father's counsel set out the father's expectation that NEOFACS would take the required steps forthwith to have the matter transferred to Kunuwanimano.

• Oct 26, 2015 to May 25, 2016 — Kunuwanimano effectively acted as the applicant throughout this time and at trial. NEOFACS passed its file information to Kunuwanimano.

• May 25, 2016 to Dec 22, 2016 — Trial evidence heard on fourteen days throughout this period. Order made for written submissions to be forwarded to trial judge.

• March 31, 2017 — Reasons released. Order deferred as court requested submissions on terms of supervision order and on terms of maternal access order.

• July 12, 2017 — In absence of any submissions, judgment endorsed on finding, disposition and access. Order made terminating order of transfer dated Oct 26, 2015. Order made that NEOFACS is the Applicant in case. No order taken out by anyone based on this endorsement [as of Dec 31, 2017].

• July 17, 2017 — Counsel for mother formally removed by court order.

[8] The Unauthorized Transfer

As can be inferred from the foregoing summary of events, it was primarily at the request of, and on misinformation of the father and of his counsel, that an order was made that the file was transferred to Kunuwanimano. I have already expressed my thoughts on why Kunuwanimano did not have jurisdiction to have this file "transferred" to it as a party applicant, or to act in any way as the applicant society in this case. This lack of jurisdiction stems from the designation of Kunuwanimano as a children's aid society. The designation permitted Kunuwanimano to provide services to "Aboriginal" persons within a certain specified territory. Neither the child nor any party in this case, was an "Aboriginal" person based on the evidence at trial.

The Law of Costs

[9] Overview of Costs Law

If there is one area of the law that abounds in judicial decisions, it is the law of costs. This case, however is concerned with costs sought against a children's aid society. There are special provisions that deal with this particular area in the law of costs. There is also a body of jurisprudence that has developed, and continues to evolve.

[10] Starting Point: Courts of Justice Act

The Courts of Justice Act provides the starting point for costs. It provides:

S.131 (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. R.S.O. 1990, c. C.43, s. 131 (1).

It is important to remember that a decision that deals with costs is an exercise of judicial discretion. It is also equally important to remember that this is not unrestrained judicial discretion. On the contrary, it is circumscribed by the provisions of any Act, and also by the Rules of court. The Act that applies to child protection proceedings is the Child and Family Services Act. This Act contains no provisions for costs.

[11] Family Law Rules – Rule 18

The Rules of court are the Family Law Rules, which are a regulation made under the Courts of Justice Act. There are two Rules that deal specifically with costs. Rule 18 deals with offers to settle and the costs consequences of such offers. In the present case, there have been no offers to settle within the meaning of Rule 18. Accordingly, there is no impact from this Rule on the issue of costs.

[12] Family Law Rules – Rule 24

The other Rule that deals with costs is Rule 24. This Rule applies to domestic family litigation as well as to child protection litigation. While some of the underlying principles in domestic litigation spill over into child protection litigation, they are tempered by the specific provisions of Rule 24. Litigants in child protection cases have what is judicially acknowledged to be a special status, when it comes to costs.

[13] Presumption of Entitlement – Rule 24(1) and (2)

Rule 24 starts in subrule 24(1) with a presumption of entitlement to costs by a successful party in an enforcement, motion, case or appeal. However, Subrule 24(2) removes that presumption in two specified instances:

Rule 24(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).

[14] Equal Standing of All Parties

The presumption of costs entitlement of a successful party does not exist in a child protection case. It is notable that this removal of the presumption created by subrule 24(1) applies to all parties in the child protection proceeding. In effect, all parties in a child protection proceeding are in the same standing so far as entitlement to costs is concerned.

[15] Judicial Discretion – Rule 24(3)

Subrule 24(3) seems to restore the judicial discretion that subrule 24(2) appears to limit. However, a closer look at subrule 24(3) is warranted.

Rule 24(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).

This subrule does not say anything about the presumption of entitlement to costs of a successful party, or of the inapplicability of that presumption in certain circumstances. All it does say is that the court has discretion to award costs to or against a party that is a government agency regardless of its success in the case. This seems to take the court back to s.131(1) of the Courts of Justice Act which states that it is an exercise of judicial discretion whether to award costs or not, and if awarded, in what amount, and to whom.

[16] Upshot: Discretionary Power

What is the upshot of all of this in this proceeding? It is that the court cannot rely on any presumption of entitlement to costs that is created by a Rule. However, the court is able to exercise its discretion to award or not award costs, by any party, to any party, and in any amount it may determine, and to do all this irrespective of success in the matter.

[17] Rationale for Exemption: Society Perspective

Rule 24 effectively codified what, to a great extent, was already the common law with respect to costs. There were good reasons to exempt a society from a costs award, even when it was unsuccessful in its case. This was so even before the advent of the Family Law Rules. The rationale for this is best exemplified by an oft cited decision of the Ontario Divisional Court in 2003:

"The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a children's aid society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations."

[18] Rationale for Exemption: Parent Perspective

The same court gave an equally valid rationale for exempting parents in child protection proceedings from a presumption of entitlement of costs against them.

"Parents, on the other hand, are generally insulated from claims for costs in such proceedings because when faced with state intervention in the care and upbringing of their children, they have a right to force the state to prove its case and should not be penalized in costs."

[19] Costs Awards Despite Exemption

Notwithstanding these pronouncements, there have been a number of reported decisions in which costs have been awarded to a party in a child protection case against another party. Clearly, these courts had the discretion to do so, and it is incumbent on this court to examine why costs were awarded, and what criteria or tests these courts applied in ordering costs.

[20] Broader Application of Rule 24

Rule 24 – the "costs" Rule – does not stop at subrule 24(3). In fact, it has seventeen subrules in all. These subrules apply to decisions on costs to the extent that they are relevant. Among other things, such subrules touch on behaviour of the litigants, on divided success, on bad faith conduct in litigation, on when costs are to be decided, and by whom, and the factors that the court is to use in awarding costs. Rule 24 governs costs in family matters. But it does not necessarily have provisions that cover every conceivable situation that a particular case may present. Where a Family Law Rule does not cover a matter adequately, the court may, among other things, rely on subrule 1(7), and the practice, if the court considers it appropriate, shall be governed by reference to the Rules of Civil Procedure. No suggestion has been made that this court should do so in this costs decision.

[21] Timing of Costs Decisions – Rule 24(10) and (10.1)

Subrule 24(10) imposes on the court an obligation to deal with costs "promptly after dealing with a step in a case". This is a clear direction that answers the question "when". In terms of "what", this subrule gives the court a choice: make a decision then, or reserve the decision to a later stage in the case. While this subrule appears fairly clear and understandable, in fact, it raises all kinds of issues, some of which are at play in the present case. Moreover, this subrule has to be read with subrule 24(10.1) as this latter subrule provides details to the court on how to fulfill the instruction provided in the former.

[22] Definition of "Step" in a Case

A court case is made up of many "steps". Some are common to all litigation. Some are peculiar to the case they comprise. What constitutes a "step" is not defined in the Rules. Some litigation involves lawyer-to-lawyer matters that do not even involve a judge. Are these matters "steps" as used in subrule 24(10)? Are costs relating to such matters even determinable by a judge under the Rules. Arguably, the first item on any agenda that seeks an order for costs is to identify the step to which the cost relate. This identification includes the decision of whether the matter for which costs are sought is, in fact, a step in the case. It also includes what are the component parts of the step and whether they are properly included for purposes of awarding costs.

[23] Requirement for Specific Costs Orders

It seems abundantly clear, based on case law, that:

• if costs were not specifically ordered promptly after a step in a case, or
• if costs were not specifically reserved by the judge dealing with a step in a case to be determined at a later stage, or
• if there was no judicial mention of costs one way or another, at the conclusion of a step in a case,

then there are no costs to any party involved in that step. In short, costs of a step in a case will only exist if costs are specifically ordered in relation to that step, either promptly after that step is completed, or at a later date in the proceeding pursuant to an order specifically reserving the determination of costs to such later date.

[24] No Reservation in This Case

In the present case, no reservation for a later date determination of costs was ever made.

[25] Change in Wording: "Judge" to "Court"

The prior wording of subrule 24(10) used "judge or other person who dealt with that step" whereas the present wording in the same numbered subrule uses "the court". Is this change significant, and does it affect who determines the costs of a step? There was no prior subrule 24(10.1). The changes to the Family Law Rules that replaced "judge" with "court" also split subrule 24(10) into two subrules by creating a new subrule 24(10.1). What is new in these changes apart from replacing "judge" with "court" is the provision for reserving the determination of costs of a step to a later date. The obvious question that arises is "by whom?" at such later date. It seems somewhat startling that the person who ultimately determines the costs of a prior step, the costs of which were reserved, may be someone who had no involvement with that step and knows nothing about it or its significance in the proceeding.

[26] Bad Faith and Full Recovery Costs

A judicial finding of bad faith conduct has mandatory consequences for the litigant found acting in bad faith. Costs are to be on a full recovery basis, and are payable immediately. The father in this case has not alleged that either society has acted in bad faith. However, he has asked that costs be awarded to him on a "full recovery" basis.

[27] Joint and Several Liability – Statutory Authority

Moreover, he has requested that his costs be paid "jointly and severally" by the two societies. This does not necessarily mean in equal amounts by them. There is no provision in s.131 of the Courts of Justice Act for an order of costs to be payable jointly and severally, unless the words "by whom and to what extent" in that section can be interpreted to include the meaning "jointly and severally".

[28] Joint and Several Liability – Rule 24

Nor does Rule 24 mention, much less permit, costs awards to be made payable jointly and severally by more than one party.

[29] No Precedent for Joint and Several Costs

I received no references to any cases where costs were awarded to be payable jointly and severally.

[30] Interpretation of "To What Extent"

In absence of some authority permitting a costs award to be payable in this way, I do not feel that I have such a power. I do not interpret the s.131(1) of the Courts of Justice Act as providing such authority. "To what extent" costs are payable when applied to more than one party, means to me in what quantum (ie how many dollars) each of the parties are obligated to pay to discharge the costs award in full.

[31] Logical Problems with Joint and Several Liability

Moreover, from a strictly logical analysis, to make a cost award payable "jointly and severally" does not allocate the factors that the court must apply in setting costs properly between several costs payors, who may have significant disparities between themselves in how they carried on with the litigation. Finally, such a phrasing of a costs award would permit a costs recipient to pursue the easiest cost payor, even up to the full amount of costs, even though the more difficult costs payor may have been substantially more at fault in the adverse costs award. Basically, I see a "joint and several" order as lumping multiple litigants together, letting them fight out who pays what portion of the costs awarded, and being unfair and potentially punitive to one or more of them.

[32] Party Status and Costs Liability

One other factor that surfaces in this case is the "party status" of the two societies against whom costs are sought. If they were both parties, they were never both parties at the same time. Section 131(1) of the Courts of Justice Act does not mention parties, but it is a logical inference that it means parties, both in terms of who pays and who receives an award of costs. Similarly, Rule 24 almost always refers to "parties" in its subrules. The only exception is in subrule 24(9) which permits a court to order a party's lawyer to pay costs in certain circumstances. Clearly, the lawyer is not a "party" in the case, but equally clearly acts for a party in the case. How does party status affect the costs claim in this case?

[33] NEOFACS as Non-Party During Trial

The father's claim for costs is restricted to the trial. The trial took place completely in the year 2016. The NEOFACS agency ostensibly transferred its file to the Kunuwanimano agency in October 2015. Accordingly, NEOFACS was not acting as the applicant, nor was it conducting itself as a 'party' during the time for which costs are sought. The father's costs claim seems to be restricted to parties. If NEOFACS was a non-party during the time for which costs are being sought by him, then he has a legal problem in seeking costs against what was then a non-party.

[34] Costs Against Non-Parties

The awarding of costs against a non-party has been the subject of some jurisprudence. A case often cited for the proposition that a court cannot award costs against a non-party is a decision of Timms J. in 2003. There are exceptions, of course, such as the lawyer who runs up or wastes costs, or in a case of fraud, or to prevent abuse, or where the real litigant is a non-party and the formal litigant is a 'straw man'. However, none of these are alleged to exist, none do exist here, and are therefore not applicable in this case.

[35] Factors in Setting Costs Amount – Rule 24(11)

Finally, in setting the amount of costs, the court has, in subrule 24(11), a list of mandatory considerations, the last of which is "any other relevant matter" which arguably permits the court a much wider latitude in what it takes into account. However, this subrule is not concerned with whether costs are awarded, or to whom awarded, or by whom payable, but is relevant only to the amount or quantum of such costs.

[36] Authority for File Transfer

This delving into the law of costs in child protection proceedings, in particular, is not an academic exercise. Judges are expected to justify their determinations on costs orders, and give cogent reasons that are founded on the applicable statutory, regulatory and jurisprudential groundwork, and that are tied to the factual happenings that took place in the litigation. Superficially, what took place was a transfer of a file from one agency to another. That transfer was pursuant to a court order made on consent of all parties. Frankly, I do not know what the authority was for the making of such an order. It does not appear to have been section 48(3) CFSA which authorizes a transfer of a proceeding (not a "file") to another territorial jurisdiction. This proceeding remained precisely where it was started.

[37] Lack of Statutory Mechanism for Party Substitution

There is no statutory mechanism for a transfer that has the result of exchanging one applicant (litigant) for another. Nor does either Rule 11 or Rule 12 assist in doing so. In absence of any formal motion, and the evidence to support the claim in such motion, it is difficult to know how or why this "transfer" took place and on what authority. The substitution of Kunuwanimano for NEOFACS does not necessarily follow from a "transfer" of the file, even a judicially endorsed transfer. Moreover, the CFSA specifies who are parties in a child protection proceeding. It is clear that in terms of the society, it is the "society having jurisdiction". Kunuwanimano never had jurisdiction in this proceeding based on the facts of the case and its own designation as a society. It was not acting as a society in compliance with the statute.

[38] Proper Procedure for Adding Party

Really, the only way in which I see that Kunuwanimano could possibly have been the applicant society and a party in this case would have been by an order adding it as a party made under Rule 7(5) [possibly paired with a contemporaneous order removing NEOFACS as a party].

[39] Problem of Party Status

Finally, the current jurisprudence makes it clear that despite the removal of a presumption of costs in child protection matters, the courts can still award costs to a party against another party. Herein lies the problem. Was NEOFACS in reality the applicant throughout the trial, or did Kunuwanimano become the applicant at some point?

[40] Criteria for Costs Against a Society

Regardless of which was the applicant party at trial, the law of costs has fairly well established that, even with no presumption operating, a society may be liable to a costs award in certain circumstances. The applicable case law actually pre-dated the coming into force of the Family Law Rules and has been refined to the present day. An examination of the applicable case law demonstrates that certain types of conduct by a society may give rise to costs consequences. That conduct may involve one or more of the following failures:

• to conduct a thorough investigation before acting
• to continue investigating in vigorous, professional manner until final court decision
• to re-assess its position as new information becomes available
• to demonstrate its openness to any version of the events that is offered, including the version offered by the person against whom the allegation is made
• to ensure that the necessary information required for a decision is before the court
• to be alert to rancor that might reasonably be animating the allegations
• to look beyond an allegation for corroboration or independent evidence of it
• to remain flexible, to avoid rigidity and to be open to reasonable alternatives
• to make a reasonable offer to settle any (or all) of the issues
• to ensure that the pace of the proceeding is appropriate and in accordance with the temporal limitations and time lines of the statute and the Rules of court
• to comply with orders of this court especially with respect to timelines
• to ensure that caseworkers are properly trained and skilled in their roles
• to ensure that the necessary information required for a decision is before the court
• to treat parties "fairly" according to the concept of fairness of the reasonable man

[41] The Fairness Test

Ultimately, the test that is applied in awarding costs against a society is one that has been repeatedly held to be the correct test, namely, the fairness test. The following are judicial postulations of this test:

• "would the society be perceived by ordinary persons as having acted fairly?"
• "whether a reasonable person would perceive the society as having acted unfairly and unreasonably in its conduct."
• "would the ordinary man perceive the society as having acted fairly?"
• "[is the] conduct by the society that is seen as patently unfair by the public at large?"
• [are there] exceptional circumstances of unreasonable or unfair behaviour?"

[42] Accountability Principle

There is one other consideration in awarding costs against a society that has also been touched upon by some jurists. This is the principle of accountability. Where is the accountability if the litigants know there are no down sides with respect to costs? This was best stated by Agro J.:

"Costs are neither reward nor punishment. In my view, it is not fairness that is the issue in the exercise of discretion under section 131 of the Courts of Justice Act. Rather it is the accountability for the manner in which any litigant presents its case and expedites a reasonable resolution, whether by settlement or at trial. In the case of a children's aid society, this accountability is for the manner in which it investigates its case and presents it to the court measured against the background of the statutory requirements of the Child and Family Services Act. In the absence of an award for costs, there is no such accountability."

[43] Application of Law to Facts

It is on the basis of the foregoing law for this court to determine what the society/ies in this case did or did not do, and what are the consequences to them in terms of costs. In addition, the court cannot ignore the other parties in this case because they too have obligations as litigants to carry out, and failure by them may affect the costs award.

Analysis

(A) NEOFACS

[44] Two-Step Analysis

The first step in this decision is whether the NEOFACS society is liable for any costs. The second step is for what amount of such costs.

[45] NEOFACS Arguments

The argument by NEOFACS is manifold and I summarize it below:

• that it was not given any opportunity to make any submissions on any fault that the court found in its involvement in this case.
• that when the jurisdiction of Kunuwanimano became an issue, Kunuwanimano ought to have sought to add NEOFACS as a party, or alternatively, the court ought to have stayed the case temporarily to involve NEOFACS under subrule 7(5) so that it could adduce evidence and make submissions on this issue
• that the father is only seeking costs relating to the trial and NEOFACS had no involvement, in fact, in the trial (except that some of its personnel were called as witnesses by Kunuwanimano)
• Costs were not addressed nor reserved prior to Oct 26, 2015 and cannot now be resurrected
• The involvement of NEOFACS as an applicant effectively concluded on Oct 26, 2015 when the "transfer" order was made by the court, and NEOFACS is entitled to rely on a court order that no one had appealed or sought to have been set aside
• The transfer to Kunuwanimano was at the request, instance, and insistence of the father

[46] Court's Assessment of NEOFACS Arguments

I agree with some of these arguments. The main point is that whatever NEOFACS did or failed to do in this case occurred before October 26, 2015. Some of its pre-October 26, 2015 actions were, in fact, criticized by the court in its trial decision. However, everyone operated under the premise that Kunuwanimano had carriage during the trial portion of the case, and had that carriage as the applicant. From a common sense viewpoint, it is difficult to lay any blame that deserves to be consequenced with a costs sanction, on anyone but Kunuwanimano. It was this agency that was making decisions and conducting itself as a society during the entire time for which costs are sought.

[47] Jurisdiction Issue Arose at Trial

In defence of the court, the jurisdiction of Kunuwanimano arose only on May 25, 2016, the first day of trial, at a trial management conference, and only arose as a question mark. In the conference memo that was circulated that day was the following comments:

"Counsel for society produced copy of order in council (OIC) setting out jurisdiction of Kunuwanimano and copy of inter-agency (Kunuwanimano and NEOFACS) protocol as both societies appear to have overlapping geographical jurisdiction. Following some discussion, it was left that the society would file copies of these two documents as evidence in the course of its case. There was some discussion as to who was aboriginal in this case. The society's position is that the father had sufficient aboriginal history to justify involvement of Kunuwanimano as the applicant society in this case."

In fact, the non "Aboriginality" of the father was not finally established until he actually testified at trial seven months later (approximately December 2016), which was after all of the evidence of the society and of the mother had been heard. And this came as a great surprise to everyone, including counsel for both Kunuwanimano and the father. Accordingly, from a practical point of view, it was much too late then for a stay to try to re-involve NEOFACS, and particularly too late given the time that the child had been in care by that point.

[48] NEOFACS Procedural Fairness

As far as the claim for costs is concerned, NEOFACS was provided a copy of the trial Reasons and was served with the father's motion claim for costs. It has had full opportunity to respond to the costs claim, with (evidence or) argument, and it has done so. To this extent, it cannot claim that it was deprived of procedural fairness on the costs issue.

[49] No Costs Reserved for NEOFACS Steps

The fact is that none of the steps with which NEOFACS actually dealt had costs consequences. No one sought costs for any of those steps. No one was awarded costs of those steps. No costs of those steps were reserved for later determination. It is too late now for the father to seek costs against NEOFACS directly for any of those steps (which he has not done) or indirectly for those steps by way of his claim for costs of the trial (which he appears to be doing). Moreover, during the time of NEOFACS' involvement, the father was not really on the successful side for any step that took place.

[50] Judge Who Dealt with Step Must Decide Costs

Finally, Subrules 24(10) and 24(10.1), as I read these, require the judge who dealt with the step for which costs are sought to decide such costs. The trial judge was not the judge that dealt with any step that happened during the time NEOFACS was the applicant or acting as the applicant in the case. As trial judge, I decline to deal with costs that I am not by the Rules, required to deal with.

[51] Dismissal of Costs Claim Against NEOFACS

I am, for these reasons, inclined to dismiss the father's claim for costs insofar as it relates to the NEOFACS society. This not to say that NEOFACS is absolved in the eyes of the court. The court simply has no costs sanction it can apply against NEOFACS in the peculiar circumstances of this case. The determination of quantum is therefore moot.

(B) KUNUWANIMANO

[52] Kunuwanimano's Position

The position of Kunuwanimano is that it did nothing that would merit an award of costs against it. Firstly, it blames the father for his false self-identification as an Aboriginal person. It justifies its jurisdiction on this self-identification. Secondly, it agrees with the fairness test as the applicable test to award costs against a society, but it maintains that it was not unfair to the father, and that no reasonable person would perceive anything it did, or failed to do, as having been unfair, at least not in its services to the father, and not in its procedural conduct of this case.

[53] Quinn J.'s Seven Components

In terms of the role of a society in a child protection case, Kunuwanimano relies on those seven components set out by Quinn J. in his 2005 decision and claims that it has complied with each of those. Some closer scrutiny of this claim is warranted.

[54] Kunuwanimano's Knowledge Upon Taking Over

By way of preamble, there was no legal obligation on Kunuwanimano to provide its services to this family or to accept any part of this child protection case. It did so voluntarily. It knew or should have known what had transpired in the past and at what stage the proceeding was. It should have been aware by October 26, 2015 that:

• The case was already over 13 months old
• That the child had been in the care and custody of NEOFACS since apprehension and she was under age six years
• That the claim had been amended to one of crown wardship with no access
• That there had not yet been any temporary care and custody hearing
• That there had been no finding yet made that the child was in need of protection on any of the grounds relied upon
• That the child had been apprehended without warrant
• That the interim access in place was all supervised and was not more than two hours per week per parent
• That both mother and father were contesting the society on finding and disposition. Moreover, the mother and father were adverse in interests as between themselves and that there was some animus between them
• That the father's information about his Aboriginal or Metis connections was unsubstantiated and uncorroborated by him or anyone else, and that both NEOFACS and Kunuwanimano had no independent confirmation of the father's connections.

[55] Kunuwanimano's Difficult Position

What Kunuwanimano jumped into was a case which was clearly suffering from serious delay and was not even close to trial. It took on the task of persuading the court that the child was in need of protection when it knew that it would have to rely primarily on evidence it had not itself generated. It had to rely on evidence of the mother which it was, or should have been, aware was unreliable. In addition, it had to rely on evidence of workers from the NEOFACS society who had done all of the investigation to the point of transfer. These workers themselves had case notes that said that they could not believe the mother. It was wary of the "Aboriginal" connection to the point that it warned that the file might have to be re-transferred back to NEOFACS. In short, Kunuwanimano opened up a can of worms in taking on carriage of this case. It was not a seasoned agency and had only been designated in April 2015. It is not an unreasonable inference that this was one of its first contested child protection proceedings.

[56] Inherited Status Quo

While many of the happenings between society and family pre-dated Kunuwanimano's involvement, by taking on the role of applicant society in the proceeding, it also took on the history of these happenings. While it cannot be penalized in costs for anything prior to its actual involvement, it inherited the status quo at the time it took on carriage of the case. This included, in particular, the continuing investigation, the existing 'without prejudice' temporary care and custody order, the de facto parental access that was in place, and the ongoing (and changing) positions of the mother and father. Why and what it did with all of this, and how it did it, is what exposes this society to a possibility of an order of costs.

[57] Quinn J.'s Framework – Apprehension

Justice Quinn's decision in C.B. was based on only one society as applicant throughout that case, and a major part of his decision was about that society's failure to properly investigate before apprehending, its failure to look at alternatives other than removing the child from caregivers, and its apprehending without a warrant, with not even an attempt to justify that the circumstances allowed a society to do so. Any parallels in the present case do not involve Kunuwanimano which did not even exist as a society when apprehension occurred. Accordingly, the first area of Quinn J.'s list is inapplicable.

[58] Continued Investigation After Apprehension

Continued investigation after apprehension was effected primarily by NEOFACS. Apprehension was on Sept 23, 2014. Kunuwanimano effectively took over carriage of the proceeding on October 26, 2015. This was over thirteen months later during which, Kunuwanimano had no investigatory involvement. But Kunuwanimano had a duty to continue investigating after it took over. Did it do so? I would say that it did not. Basically, it sat with the information that it had from NEOFACS, which included a section 54 assessment report, and it intended to proceed to trial with that. What did Kunuwanimano get from NEOFACS by way of information? It got everything that NEOFACS had to that point in time. Moreover, it had two NEOFACS child protection workers which it called as its main trial witnesses. It had all of the pleadings and all of the evidence filed to October 26, 2015. It had a copy of the Minister's designation which made it a children's aid society. Finally, it had the Child and Family Services Act, the statute under which it was purportedly acting. If it was going to take over this family and this case, it had a duty to familiarize itself with all of the foregoing and to carry on with the case.

[59] Unexplained Investigatory Failures

There are a number of unexplained failures on the part of Kunuwanimano to investigate what clearly was unsatisfactory in the information it had received.

1. Drug Testing

NEOFACS had arranged for the mother to undergo a drug test. The mother did not show for that test. At some point, the mother claims she did go in for a drug test. NEOFACS had no results of a drug test. Nor did the mother. Neither did Kunuwanimano. Nor did Kunuwanimano do anything to follow up on test results. Very strange when the mother's drug use was so prominent a factor in this case.

2. Sexual Complaint Investigation

NEOFACS had, on two occasions, put pressure on the mother to go to the police to file a sexual complaint against the father. She never did go on the first occasion. Her worker went to the police and was apparently advised that the mother was of sufficient age that she had to come in herself if she wanted a charge laid. On the second occasion, the mother did go to the police with a NEOFACS worker. No charges were ever laid. The interview was video recorded. Neither NEOFACS nor Kunuwanimano ever got a copy of the video recording. Nor did they get any police report or occurrence report of that police interview. Nor did it obtain and provide any police information why the police did not proceed with any charges. This lack of follow through is astounding when the father's alleged sexual misconduct was critical to so many key issues in this case.

3. Historical Summary Verification

NEOFACS (and other societies) had been involved with the mother (S.L.) when she was a child, up to her eighteenth birthday when she left the society. Accordingly, it had mountains of information which it collated and summarized. Most was about the mother. Some was about the mother's family, including the mother's mother. This "summary" was tendered at trial by Kunuwanimano; at first rejected as inadmissible hearsay, it was re-introduced in a Statement of Agreed Facts by Kunuwanimano and the mother. There is no credible evidence that Kunuwanimano verified any of its contents. Kunuwanimano relied on it as reflecting the truth of its contents. It was clearly wrong in many of its statements, in particular about what it said about the mother's mother (M.). Moreover, the mother herself, in her viva voce testimony at trial, disputed some of the statements in this summary or could not remember significant events it referred to. It was very surprising that Kunuwanimano would use this as evidence in its case when it had just heard the mother's evidence which raised many red flags about the reliability of the summary. Even more surprising that it did nothing to verify the factual content of it.

4. Aboriginal Connection Verification

With respect to the father's claim of an Aboriginal connection, Kunuwanimano did next to nothing to verify what he said. There is some evidence that a Kunuwanimano worker contacted the Moose Cree First Nation band representative, and provided information with respect to the father's claim of affiliation. The band representative was apparently unable to confirm the father's affiliation, and presumably advised Kunuwanimano. There is no further investigation by Kunuwanimano mentioned in this case on this all important issue. It continued on ostensibly acting as the applicant in the proceeding, and as the society having jurisdiction, when the father's Aboriginal connection was the only basis on which it could have any standing and any jurisdiction. This is a major failing of its duty to continue investigating. It matters little what the father said, even in his affidavit under oath. His misinformation is not an excuse for Kunuwanimano to stop investigating, particularly when it was not getting confirming information either from the father, or from his counsel, or from the Moose Cree band.

[60] Ordinary Expectations of a Society

It is not an extraordinary expectation that a society embarking on a contested child protection trial will take certain steps. Among the most usual of these are:

• A review of the relevant legislation
• A review of the grounds it is relying upon for a finding in need of protection
• A review of the evidence that it has to substantiate such finding(s)
• A review of the disposition it is seeking
• A review of any alternative dispositions available
• A review of the evidence to justify the disposition sought
• A review of any access that might result in the case
• A review of the position of the parents since the commencement of the proceeding

[61] Grounds and Evidence Issues

Kunuwanimano proceeded with its case at trial with the same grounds, the same claim and the same position on access as it had inherited from NEOFACS. In terms of grounds, it was apparent that the society considered the mother S.L. as the (only) person having charge of the child immediately prior to society intervention. By necessity, the act or omissions of the mother were the only relevant ones that supported any finding under risk of physical harm grounds. Despite this, Kunuwanimano introduced much by way of evidence to show that the father and the maternal grandmother (who was denied party status, and therefore was not a statutory parent) were at fault in terms of not only physical harm grounds, but also on emotional harm grounds. Kunuwanimano had absolutely no evidence that the child was at risk of emotional harm as defined in the CFSA. A lot of trial time was expended by Kunuwanimano on grounds relating to the father which were either irrelevant and not applicable to him, or were unproven.

[62] Section 54 Assessment Report Issues

The NEOFACS society obtained a s.54 report from Dr. M. Sroga. It was pursuant to a very detailed and lengthy order. It was not favourable to either parent, or to the maternal grandmother. NEOFACS appears to have relied upon the opinions and recommendations of the assessor which were precisely what NEOFACS then obtained as an amendment to its claim – crown wardship without access. Kunuwanimano similarly relied upon Dr. Sroga's report and continued to advocate the amended claims once it acquired carriage of the case. At no time did Kunuwanimano closely consider this report with its glaring deficiencies (outlined in the trial judgment). More to the point, it argued that Dr. Sroga's opinions as to outcome should be adopted by the court. This despite the fact that Dr. Sroga was not qualified as an expert by the court, in fact, asked not to be qualified as an expert, conceded that parenting capacity assessments were not her main area of expertise, and conceded that she had little or no knowledge or experience with a cystic fibrosis child and her needs. In my reading of the report of Dr. Sroga, I saw little about the child other than a superficial and generic treatment, and nothing about the care of the caregivers while they had the child for the first ten months of her life. The report was flawed for many reasons and the Kunuwanimano society was oblivious to these flaws.

[63] Change of Position Mid-Trial

Therefore in terms of forming a fair and defensible position, Kunuwanimano failed to do this. Moreover, it drastically changed its position on Dec 6, 2016. This was on day 10 of a 14 day trial. It no longer sought an order for no access to the mother. It basically made a deal with her that would preserve her access after crown wardship, with no thought to how to persuade the court that the presumption against access was rebutted as far as she was concerned. Moreover, it gave little thought to how the father would have no access when all evidence seemed to show that he (and grandmother) were better caregivers by far.

[64] Reassessment of Position

Did Kunuwanimano re-assess its position as new information became available. Following the mother's testimony, it became clear that the mother, despite any progress she may have made since apprehension, was not going to have this child returned to her. This may have prompted the Statements of Agreed Facts that she entered into with Kunuwanimano. At least she might get access. I must admit that I did not like the fact that the father was kept in the dark about this development and only found out when the Statements of Agreed Facts were tendered. If there was some unfairness on the part of the society, this was a good example. It smacks of adversariness and litigation tactics, and potentially prejudices the father making him the odd man out so late in the day.

[65] Parental Access Issues

I would be remiss if I said nothing about parental access. There was never any order that specified any minimum or maximum time or any duration for any access visit. Nor was there any specification of the time or the frequency of access visits. The only judicial qualification of access was that it be supervised. These access visits started when NEOFACS was the applicant. It was NEOFACS that set the visits at once per week for three hours. It set the same three hours for both mother and father, knowing full well that there was no love lost between them, and further criticizing them for continuing to remain in contact. It was the NEOFACS society that held access visits at a society location that, according to complaints by the father, was much too small and cramped. It was The NEOFACS society that changed the location of access to a library in Mattice which the father also complained was unsuitable. The parental access was at some point separated for mother and father. However, the net result was that each then spent only two hours per week with the child, a reduction of one hour for each. This was a unilateral decision made by NEOFACS and perpetuated by Kunuwanimano. It reduced the access of each parent by one third and required the parents to travel at least an hour each way for access. It was not until the father brought a motion, for, among other things, better access, that he was able to have access visits at his home and supervised by the child's maternal great grandmother, a motion that was contested by Kunuwanimano. Finally, in spite of this order, evidence at trial indicates that Kunuwanimano began again to supervise paternal access after an incident in which it claims the great grandmother was not supervising properly (or at all). It did this without going back to the court to obtain an amendment to the order then in place. I had already set out my opinion of the stinginess of both societies in terms of the access times it was allowing the parents. I reiterate my comments.

[66] Worker Training and Competence

Finally, a society is expected to utilize properly trained workers. Properly trained not only in the interactions of these workers with the families to whom they provide services, but also properly trained in the conduct of child protection litigation. There were many occasions since Kuniwanimano's involvement started that belie such proper training. Most apparent to me are the unilateral ways in which it set the parameters of parental access, not so much to convenience the parents but to convenience itself. It sprung its change of position on day 10 of trial without any notice. It failed to ensure that the continuing record was up to date. In fact, the first order made in this case was on Sept 26, 2014 but it was not formally prepared signed and issued until Dec 15, 2016 – well over two year later. Several orders in this proceeding took almost as long to find their way into the endorsement record. It is no excuse to say that NEOFACS should be responsible for orders made during its involvement. This was an obligation that Kunuwanimano undertook when it took carriage of the proceeding.

[67] Conclusion on Kunuwanimano's Conduct

In summary, Kunuwanimano did many things that were unreasonable in the circumstances. I conclude that an ordinary reasonable man would consider that the Kunuwanimano society had acted unfairly in many respects since it took over carriage of the proceeding. There were clearly exceptional circumstances of unreasonable and unfair behaviour on its part. The most egregious, of course, was it failure to properly investigate the father's claims of an Aboriginal connection, and to continue to press him for independent corroboration of what he claimed. Ironically, both Kunuwanimano and NEOFACS had reservations about what the father was claiming initially. Had they stuck to their guns, Kunuwanimano might never have been involved as a society in this case and with this family at all.

Quantum of Costs

[68] Full Recovery Basis

The father seeks costs on a full recovery basis. It is not the intention of the law of costs to completely indemnify a party at the expense of another. The Court of Appeal has said that one of the primary purposes of an award of costs is "to partially indemnify successful litigants for the cost of litigation". In this case, the father seeks full, not partial recovery of costs. Full recovery is an unusual award reserved almost exclusively against litigants whom the court finds acted in "bad faith". Bad faith requires something more than exceptional circumstances of unreasonable or unfair conduct.

Bad faith requires a finding that a party acted in a reprehensible, scandalous or outrageous manner.

[69] Bad Faith Not Found

I am not prepared to find that Kunuwanimano's conduct crossed the line to bad faith. Nor does the father allege that it did. Accordingly, full recovery costs are not appropriate in this case. What is a proper amount of costs to impose on Kunuwanimano and to award to the father?

[70] Proper Amount for Trial Fees

Firstly, I accept that $77,700 is a generally proper amount to cover 14 days of trial at the hourly rates of the father's counsel, including preparation for trial, attendance at trial and post trial matters. This translates to $5,500 per day for 14 days and less than that per day when time incidental to and necessary for trial is factored in. I am not receptive to the argument that because the father was legally aided, he ought not be allowed to claim costs on a non legal aid hourly rate. This is not the law. The court should be blind to the fact that a litigant is legally aided when it deals with costs.

[71] Father's Misconduct – Reduction of Costs

However, what I am not blind to is the role of the father in this procedural mess in which he not only contributed, but was the prime instigator. Why he wanted NEOFACS out as the society he was dealing with and why he wanted Kunuwanimano in was never adequately explained in all of the evidence I heard. In this respect, he got what he wanted. Perhaps he was society shopping and perceived Kunuwanimano to be a softer agency than NEOFACS. However, he got it by incorrect information that he conveyed to the society that he either knew or should have known was not true, or correct. Even more egregious was the fact that he put false statements into an affidavit which he swore and filed with the court in this proceeding. Moreover, he consented to the order that effectively got Kunuwanimano involved in this case. This is almost tantamount to perjury and about as close to bad faith as a litigant can get. I also fault counsel for the father in being very slipshod about evidence she placed before the court without verifying the veracity of such evidence.

[72] Two-Thirds Reduction

However, there are no costs sought against the father. The court cannot ignore the father's conduct but for which, Kunuwanimano would likely not now be facing this costs claim. As a result, I am inclined to discount or reduce the father's costs substantially. In fact, I reduce his claimed costs by two thirds on account of his conduct.

Total fees claimed: $77,700

Less 2/3 reduction: $51,800

Fees allowed: $25,900

HST @ 13%: $3,367

Disbursements plus HST: $2,295

Total costs awarded: $31,562 rounded off to $31,500

[73] Final Order

Accordingly, on the issue of costs, Kunuwanimano Child and Family Services shall pay to the father, Y.T., for all of the reasons stated above, an order will go that the sum of $31,500.00 inclusive of HST and disbursements. This amount is payable within ninety days hereof and only if an order based on this endorsement is formally issued and entered into the Endorsement Record. There are no costs payable by North Eastern Ontario Family and Children's Services. Counsel for the father may have these costs payable to Ontario Legal Aid or any other payee on providing to Kunuwanimano an appropriate direction signed by the father.

[74] Mother's Involvement

I have not mentioned the mother and her involvement in this proceeding in terms of costs consequences. This is because no one has sought costs against her. Accordingly, although I do have some thoughts on this issue, I adopt a maxim passed on to me some time ago by a judicial colleague "If it doesn't have to be said, don't say it".

Released: January 10, 2018

Signed: John Kukurin, Ontario Court of Justice