WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication.
Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
87.— (8) Prohibition re 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.
87.— (9) Prohibition re identifying person charged.
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.
142.— (3) Offences re publication.
A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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
Date: June 15, 2018
Court File No.: Toronto CFO 16 13930 B3
Parties
Between:
Children's Aid Society of Toronto Applicant,
— AND —
K.M. and G.G.
— AND —
K.GU.
Respondents
Before: Justice E.B. Murray
Decision on Costs
Counsel
Ms. Christine Doucet .................................................... counsel for the applicant society
Ms. Sheila MacKinnon ........................................ counsel for the respondent Ms. K.GU.
Decision
MURRAY, E.B. J.:
Background
[1] On April 9, 2018, after a multi-day trial, the court made an order pursuant to s. 57.1 of the Child and Family Services Act placing the children "Lucy"[1], aged 3 and "Sophie"[2], aged 2, in the care of their paternal aunt Ms. K.GU. The children had been in her care as a result of Society intervention since January 22, 2016; a temporary order had been made to this effect on February 4, 2016.
[2] The Society's protection application of January 28, 2016 requested a 6 month supervision order placing the children with Ms. K.GU. The application was opposed by the children's parents, Ms. K.M. and Mr. G.G., who asked that the children be returned to them. On May 24, 2017 the parents separated after Ms. K.M. was charged with assaulting Mr. G.G. Her bail conditions provided that she have no contact with him. Ms. K.M. then presented a plan in July 2017 asking that the children be returned to her alone. In the same month, Ms. K.GU. was made a party in the case, on consent. In her Answer she asked that the children continue in her care pursuant to a s. 57.1 custody order. Mr. G.G. supported the children remaining with Ms. K.GU.
[3] In January 2018 the Society amended its application to request a s. 57.1 order, with the children in Ms. K.GU.'s custody. The 57.1 order was supported by Mr. G.G. It was opposed by the children's mother, Ms. K.M.
[4] Ms. K.GU. seeks an order for costs from the Society on a substantial indemnity basis in an amount of $48,161.13, inclusive of HST. These costs represent work done by Ms. K.GU.'s lawyer from July 2017 up to and including January 8, 2018 – the day before the Assignment Court on January 9, 2018. It was not until that date that the Society took a position as to what relief it would be requesting at trial. Until that time the Society continued to consider the possibility of supporting an order returning the children to Ms. K.M. under Society supervision.
[5] Ms. K.GU. submits that Society should pay her costs because – up until it decided to support the children continuing in her care – it acted unreasonably and thereby drove up her costs. She argues that it refused to consider important information concerning the risk to the children in Ms. K.M.'s care, that it conducted an inadequate investigation, and that it did not review and re-assess its position in the case in a timely manner. Ms. K.GU. goes further, alleging that the Society was "lacking in good faith" in not supporting her position sooner.
[6] The Society replies that the court has no jurisdiction to consider a claim for costs at this stage, by virtue of Rule 24(10). Alternatively, the Society says that no costs should be ordered, because in its actions it followed the statutory mandate to assess competing plans fairly and with an open mind.
The Law
Jurisdiction to Order Costs
[7] S. 131 of the Courts of Justice Act gives the court a broad discretion as to costs. That discretion is structured by the Family Law Rules.
[8] I will deal first with the jurisdictional issue raised by the Society. Rule 24(10) of the Family Law Rules provides as follows:
(10) Promptly after dealing with a step in the case, the court shall,
(a) make a decision on costs in relation to that step; or
(b) reserve the decision on costs for determination at a later stage in the case.
(10.1) In making a decision on costs in relation to a step in a case, the court shall decide in a summary manner whether anyone is entitled to costs and, if so, determine who is entitled and set the amount of the costs.
[9] The Ontario Court of Appeal held in Islam v. Rahman[3] that the effect of the Rule is that no costs can be awarded at the conclusion of a case for prior steps in the case if at those steps the issue of costs was not specifically addressed or if the court endorsed no order as to costs[4].
[10] In this case there was no order as to costs and costs were not addressed at any conference or motion in the case prior to trial. Costs cannot be ordered for those steps.
[11] However, this does not mean that costs could not be ordered after trial for work performed unrelated to a discrete step. Justice Perkins clarified this issue in Czirijak v. Iskander[5]:
The father is correct in submitting that the mother is not entitled now to claim costs for any step along the way for which costs could have been claimed and awarded at the time. These would include conferences, motions and consent orders. See rule 24 (10) of the Family Law Rules, O. Reg. 144/99, as amended; Islam v. Rahman, 2007 ONCA 622. However, there are a number of steps for which costs cannot be recovered until the final adjudication or settlement of the case. These include initial interviews, meetings and settlement discussions before filing the application, the application document itself, the reply, financial statements (not prepared for motions or conferences), questioning (in relation to issues for trial) and settlement meetings relating to issues for trial. The mother is entitled to have these costs considered now.
[12] The court is able to consider Ms. K.GU.'s claim for costs related to work of this nature performed by her lawyer.
Costs Claim
[13] At the outset, it is useful to consider the purpose of the costs rules. The Ontario Court of Appeal[6] has observed that costs rules have three objectives:
- Partial indemnification of a successful party.
- Encouragement of settlement.
- Discouragement and sanction of unreasonable behavior by litigants.
[14] Success is usually the entry point to a successful claim for costs[7]. But unreasonable or bad faith behaviour can lead to an award of costs against a successful party.[8]
[15] Rule 24(2) and (3) of the Family Law Rules provides that the presumption that a successful party is entitled to costs do not apply in a child protection case. However, the court still has a discretion to order costs to or against a children's aid society.
24(2) The presumption does not apply in a child protection case or to a party that is a government agency.
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.
[16] The reason for this exceptional treatment of child protection cases was explained by the Ontario Divisional Court in Children's Aid Society of Ottawa v. S. (D.):
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. 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.
[17] In Children's Aid Society of Hamilton v. K.L., Justice Deborah Chappel conducted a thorough review of the case law dealing with costs claims against child protection agencies, and set out the following general principles:
Child protection agencies do not enjoy immunity from a costs award.
However, the starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.[9]
The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.
The high threshold of "bad faith" is not the standard by which to determine a claim for costs against a child protection agency.
Costs will generally only be awarded against a Children's Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.[10]
A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome.
Important factors to consider in deciding whether costs against a Society are appropriate include the following:
i. Has the Society conducted a thorough investigation of the issues in question?
ii. Has the Society remained open minded about possible versions of relevant events?
iii. Has the Society reassessed its position as more information became available?
iv. Has the Society been respectful of the rights and dignity of the children and parents involved in the case?
v. In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society's efforts to diligently carry out its statutory mandate of protecting children.[9]
Application to This Case
[18] There were no offers to settle exchanged in this case.
[19] If "success" is measured by comparison of the terms of the order to each party's position, Ms. K.GU. was not successful. Both the Society and Ms. K.GU. asked for a 57.1 order placing the children in her custody. However, Ms. K.GU. requested an order for daytime access to Ms. K.M. on alternate weekends, with a number of restrictions. The Society asked for an order for daytime access each weekend, without these restrictions; that is the order the court made.
[20] Although the Society was the more successful party, it is still open to the court to order costs against the Society if the Society has acted unreasonably or in bad faith. In non-child protection cases, courts have awarded costs against a successful party rarely. For example, in Ostapchuck v. Ostapchuck, an appeal court upheld a trial judge who denied a successful husband costs because his secretive litigation behavior made compromise almost impossible.
[21] Courts have found that if a Society acts unreasonably in its litigation behavior, that it should enjoy no special protection as to costs.[11] Ms. K.GU. does not criticize the Society in this respect, and no criticism is warranted.
[22] There are few cases in which costs are awarded against a Society after trial because of its position on substantive issues. Costs have been awarded where the court finds the Society's position to be so unreasonable as to be "verging on blind obstinacy".[12]
[23] Did the Society here act in a "patently unfair and indefensible manner"?
[24] Ms. K.GU.'s criticisms involve the Society's conduct as regards the substantive issues in the case. She says that the Society conducted an inadequate investigation, and that when she and her solicitor uncovered relevant evidence that the Society did not give it proper consideration in a timely manner. I deal with these criticisms below.
Inadequate Investigation
[25] The Society identified the volatility of the relationship between Ms. K.M. and Mr. G.G. as a protection concern. Ms. K.GU. alleges that the Society did little to monitor the parents' claim that they had no contact. It was left to Ms. K.GU. to unearth evidence that they were in frequent and intense contact post-separation in May 2017. It was Ms. K.GU. who had to establish that the parents were lying about continued contact, by hiring a private investigator and to bring a motion to obtain the parents' telephone records.
[26] I do not find that the Society conducted an inadequate investigation on this issue. There were issues in this case besides the issue of parental contact requiring attention. An adequate investigation does not require perfection. Workers regularly questioned Ms. K.M. and Mr. G.G. on this issue, and questioned other family members too. Workers made unannounced visits. The fact that Society did not go to the expense of hiring a private investigator does not mean that it failed in its duty. The motion for phone records brought by Ms. K.GU. was supported by the Society.
Failure to Consider Information and Review Position
[27] Ms. K.GU.'s submission amounts to an argument that the Society acted indefensibly because it did not support her plan and disregard Ms. K.M.'s plan earlier than January 2018. In support of this allegation, she points to the following:
The Society did not appropriately weigh the parents' dishonesty about their contact and Ms. K.M.'s failure to complete any recommended counselling or programs in determining its position as to Ms. K.M.'s plan.
Despite these concerns, the Society increased Ms. K.M.'s access in the fall and continued to assess her plan. Although Ms. K.GU. provided further evidence of the parents' continued contact, the Society increased Ms. K.M.'s access further. The children reacted badly to this extended access.
Ms. K.GU. was required to bring a motion asking the case management judge to restrict this extension of access. She was partially successful on the motion.
Ultimately, the Society relied upon evidence provided by Ms. K.GU. from surveillance reports and phone records in its arguments at trial.
[28] This submission ignores the Society's ongoing obligation to attempt to assist a pre-intervention caregiver such as Ms. K.GU. in having her children returned to her care. Ms. K.M.'s plan changed substantially after she separated from Mr. G.G. on May 24, 2017. The service team determined that increased access was advisable to more fairly assess her ability to care for the children as a single parent. The evidence does not indicate that the team discounted the potential negative factors in the plan in making this decision. The Society was following its statutory mandate to provide assistance to a parent which might permit a child to remain in that parent's care before advocating for more disruptive measures[13].
[29] In moving to increase access prior to trial, the Society was acting fairly. Justice Sherr recently commented on the importance of increased access when a case is moving towards trial in order to insure a fair process, provided that a child's safety is insured.[14]
74 When a family comes before a child protection court, the family is often in crisis. Many cases require restrictive access terms at the outset to ensure the protection of the child.
75 In a constructive child protection case where it appears that the child is in need of protection, the risk concerns are clearly delineated for the parents and clear expectations are established to assist the parents in addressing them. The hard work that is required by the parents, the society, counsel and the court will then begin, to ensure that the parents have the best chance to reunify their family.
76 This means that if a child is apprehended from a parent, the process of reunification, if done properly, often takes some time.
77 It is imperative in this process that the initial access order not stay frozen until trial, unless it would be unsafe for the child to change it. Families sometimes fail in the reunification process because no steps were ever taken to change the original access order.
78 The failure to change temporary access places a trial judge in a difficult predicament. The statutory time limit for a child to stay in society care set out in subsection 70 (1) of the Act may have expired. This means that the child must either be made a crown ward or returned to a parent who might only have had supervised access for two hours once each week since the child was apprehended. Even if the access was positive, how can the judge confidently return the child to a parent if he or she does not even know that the parent can safely parent the child for a full day?
79 In a constructive child protection case, access is constantly being re-evaluated. Where it can safely be done, access should be gradually increased. This not only improves the parent/child bond, but gives the court some basis to assess whether the parent is capable of parenting the child on a full-time basis. In child protection cases, full family reunification is often achieved one hour at a time.
80 This means that if the level of access is in dispute, the court should be receptive to access change motions. The goal should be to gradually increase a parent's access.
[30] In this case, the case management judge recognized that an expansion of access was appropriate, although not to the extent contemplated by the Society.
[31] Ms. K.M.'s plan had strengths which were recognized in my decision in the case, although ultimately I determined that it was in the children's best interests to remain in the custody of Ms. K.GU. It is to the Society's credit that it carefully assessed Ms. K.M.'s caregiving abilities in varying circumstances. I cannot find that the Society acted unreasonably or indefensibly in doing so.
[32] The submission that the Society acted in bad faith in its conduct of the litigation up to the Assignment Court date shows a lack of appreciation of the essence of bad faith conduct. "Bad faith" is demonstrated by litigation conduct malicious aimed at hurting an opponent, such an intentional breach of an agreement or order done to achieve an ulterior purpose[15]. There is no basis to say that the Society acted in such a manner with regards to Ms. K.GU.
[33] I do not find that the Society's conduct in this case was "patently unfair" or "indefensible". The claim for costs is dismissed.
Released: June 15, 2018
Signed: Justice E.B. Murray
Footnotes
[1] A pseudonym
[2] A pseudonym
[3] (2007) 2007 ONCA 622, O.J. 3416
[4] Effective July 1, 2018, Rule 17(18.1) will allow a court to award costs for a conference at a later stage in the case if costs were not awarded at a conference.
[5] 2010 ONSC 3778
[6] Serra v. Serra, 2009 ONCA 395
[7] R. 24(1)
[8] R. 24(4) & (8)
[9] My emphasis
[10] My emphasis
[11] Children's Aid Society of Hamilton-Wentworth v. F.A., (2001) O.J. 119 (S.C.J.)
[12] Children's Aid Society of Haldimand-Norfolk v. V.H., (2001), O.J. 4055 (S.C.J.); Sarnia-Lambton Children's Aid Society v. B. (K.), 2011 ONCJ
[13] C.F.S.A., s. 57(3)
[14] Catholic Children's Aid Society of Toronto v. R.M. and M.C., 2017 ONCJ 784
[15] Piskor v. Piskor, (2004), O.J. 796 (S.C.J.)