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: May 14, 2018

Court File No.: Toronto CFO 15 1320600 B

Between:

Children's Aid Society of Toronto, Applicant

— AND —

S.T. and J.T. Jr., Respondents

Before: Justice E.B. Murray

Costs decision released on: May 14, 2018

Counsel

• Ms. Lily Ng — counsel for the applicant society
• Ms. Renata Kirszbaum — counsel for the respondent mother
• Mr. Herschel Fogelman — counsel for the respondent father
• Ms. Lauren Israel — counsel for the Office of the Children's Lawyer, legal representative for the children

Decision

MURRAY, E.B. J.:

Background

[1] This decision deals with a claim for costs by Mother S.T. against both the Society and Father J.T. concerning a motion brought by her to expand her access to the parties' two children: M., born […], 2015, and K., born […], 2016.

[2] The Society commenced a protection application concerning M. in August 2015, when Father contacted it after Mother had traveled with the child to Canada from Chicago. Father commenced a Hague application asking for the child's return to Illinois. The application was dismissed after a hearing on February 11, 2016. The Society amended the application to include K. after her birth.

[3] The protection concerns initially advanced by the Society in August 2015 were:

• M.'s exposure to domestic violence;
• M.'s exposure to a high-conflict dispute concerning custody and access;
• M.'s exposure to an unstable environment;
• Mother's history of untreated mental health problems;
• Father's criminal history.

[4] There have been no allegations of domestic violence between Mother and Father since this case began. Father has a new partner. Otherwise, the Society concerns are the same, although the focus of that concern has shifted from time to time.

[5] Father's criminal record excludes him from entry to Canada. However, he has been able to secure temporary permission from time to time to reside in Toronto in order to participate in the litigation concerning the children.

[6] The children's residence has changed from living with Mother, to Society care, to Father.[1]

• After the case was commenced, a temporary order placed M. in Mother's care pursuant to Society supervision. Father was able to come to Toronto in November, 2015. He enjoyed unsupervised overnight access; transfers of the children took place at Society offices or in the presence of a third party.

• After the decision on the Hague application, the parties concentrated on trying to mediate a resolution which would involve M. continuing to live with Mother in Toronto and seeing Father in the U.S. These discussions continued after K. was born.

• Father's temporary residence permit expired in December 2016, and he was forced to leave Canada. Discussions between counsel continued.

• During the entire time, the Society regularly reported that Mother was caring for the children well and that she appeared stable.

• On August 15, 2017 the children were apprehended by the Society from Mother's care. She suffered what appears to have been a psychotic breakdown. Mother had access, fully supervised at Society offices.

• Father was able to gain temporary re-entry to Canada. He began seeing the children again, and on October 12, 2017 the children were placed with him on a temporary supervision order.

• Father was anxious to move the children to Chicago to live with him, and moved aggressively to have a trial scheduled as soon as possible. The Society amended its application in February 2018 to ask for a S. 57.1 custody order placing the children in his care with access to Mother at his discretion.

• The case was sent to Assignment Court with the expectation that the trial would occur in May 2018.

Mother's Motion

[7] Mother then brought a motion on March 7, 2018 asking for a change in the access order. In my endorsement, I expanded access, but with provisos which allowed the Society to suspend access if there were serious new concerns. A part of that endorsement is set out below.

Mother's motion asks for a gradual expansion of access over the next two months, keeping one weekly visit supervised by the Society, with other visits unsupervised, starting with two 3 hour unsupervised community visits. Her request contemplates a progression to longer visits in her home, and finally one weekend overnight visit a week starting before the possible trial dates in the second week of May.

The Children's Lawyer supports this request, with the proviso that each visit start with a half-hour period at Society offices. During this time, the worker can interact with Mother and get a sense of her functioning. If the worker had any concerns on that front, she would be able to halt the progression of visits.

Both the Society and Father oppose any order that would provide for extension of access; they want any extension solely within the Society's discretion. Without judicial direction, the Society had planned to start some community visits, still supervised, and perhaps provide for some unsupervised time if all went well.

The evidence indicates that Mother has met most of the expectations that the Society outlined for her in its letter of December 8, 2017 if she wished to have them support a return of the children to her.

• She has provided records of her hospitalizations at the time of her breakdown.
• She has commenced treatment with a psychiatrist, psychotherapist, and substance abuse counsellor, provided information from each of those professionals, and signed consents for the Society to obtain further information.
• She has obtained housing.
• She has obtained part-time employment, in order to provide financial stability if the children are returned to her care.

The Society acknowledges Mother's progress, but says that it does not yet have enough information about the cause of Mother's August breakdown and her treatment plan, information which is necessary to insure that "such an episode would not be repeated with the children in Ms. T.'s care".

Although the plans before the court contemplate placement with either Mother or Father, this is not simply a private dispute between parents. This is a protection case, in which the children were apprehended from Mother's care by a state agency, and in which that agency is supporting one parent's plan. I agree with the approach set out by J. Sherr in [CCAS v. R.M. and M.C][2] on the issue of changes in temporary access orders in protection cases.

• Access should be continually under review, not only by the Society but by the court.
• The goal should be to increase a child's access, as long as an increase does not endanger the child's safety.
• Failure to increase access, where this can be safely done, can mean that a trial judge does not have evidence that is necessary to fairly decide whether a child can be returned home.
• The test under s. 58(1) requires a "sufficient", not a material change since the last order. What is "sufficient" depends on the circumstances in the case.
• The degree of change the moving party is expected to show depends on the degree of change in access requested.
• The primary and secondary purposes of the Act should guide the analysis.

The change requested by Mother is significant. I also find that the evidence shows very significant changes in her situation.

• Visits have gone from distressing to "excellent", and those excellent visits have taken place over the past 5 months.
• There is no evidence of disturbed or dis-regulated behaviour by Mother over that period.
• Mother has commenced treatment, and has the support of several professionals to maintain her recovery.
• Mother has stabilized her situation by obtaining housing and employment.

I do not dismiss the Society's concern that because the cause of Mother's breakdown is not yet clear, sustained recovery is not certain. I expect that the s. 54 assessment and further information from Mother's psychiatrist will address that issue. In terms of insuring the children's safety on expanded access, the terms of my order will allow the Society to monitor Mother's presentation before each visit, and halt the progression of access if required.

My temporary order is as follows:

1. Access exchanges shall take place at Society offices, except weekend returns which shall take place at a location agreed upon by Mother, Father, and the Society.

2. Mother shall continue to have supervised access at Society offices or in the community each Monday from 10:30 a.m. to 1:30 p.m.

3. Further unsupervised access is set out below. Such access shall begin, unless the Society deems it unnecessary, with a 30" supervised period at Society offices. If Mother's presentation before any visit causes the supervising worker concern about either child's safety in her care while unsupervised, then the worker may require the visit to be supervised, and may even suspend the visit if necessary for the child's safety. If the Society at any point determines that the extension of access set out below endangers either child's safety, it may suspend that extension, advising the parties of the reasons for this decision forthwith in writing. Either party may then bring the issue of temporary access back on motion.

4. Mother shall have unsupervised access, to be exercised only within the City of Toronto, as follows:

a. Commencing forthwith, each Wednesday and Friday from 10:30 a.m. to 1:30 p.m. in the community;

b. Commencing March 30, 2018, each Wednesday and Friday from 10:30 a.m. to 1:30 p.m. in the community or in her home, and every Saturday from 10:30 a.m. to 6 p.m.;

c. Commencing April 13, 2018, each Wednesday and Friday from 10:30 a.m. to 1:30 p.m. in the community or in her home, and every Saturday from 10:30 a.m. to Sunday at 10:30 a.m.

5. The Society and Mother may alter this schedule if they agree that an alternation is in the children's best interests. The Society may at its discretion expand access further.

6. Mother shall deposit her passport with the Society, and the passport shall be held until further court order.

7. Mother shall sign any further consents necessary to provide information to the Society from her psychiatrist or psychotherapist.

Costs

[8] Mother submits that she was completely successful on the motion for expanded access. She asks for costs on a full recovery basis of $10,548.53, jointly and severally from Father and the Society. She points out that despite the provisions of s. 24(2) of the Rules, the Society is not immune from an order for costs in the proper case. She says that Father and the Society were unreasonable in their positions, and that the Society failed in its duty to re-assess the case on an ongoing basis.

[9] The Society and Father say there should be no order as to costs.

[10] No offers to settle were exchanged prior to the motion being heard.

[11] At the outset, I note that Mother was not entirely successful on her motion. Although the court set out a schedule for unsupervised and expanded access, it provided that the first 30 minutes of each visit was to take place at Society offices, and, most significantly, granted the Society an over-riding discretion to suspend a visit if necessary to protect the children's safety.

[12] Rule 24(2) and (3) provides that the presumption that a successful party is entitled to costs do not apply in a child protection case. 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.

[13] 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.), (2003), O.J. 945.

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.

Claim Against the Society

[14] In Children's Aid Society of Hamilton v. K.L., (2014) 2014 ONSC 3679, O.J. 2860, 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.

1. Child protection agencies do not enjoy immunity from a costs award.

2. 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.

3. 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.

4. The high threshold of "bad faith" is not the standard by which to determine a claim for costs against a child protection agency.

5. 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.

6. 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.

7. 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.

[15] In my view, the Society did not act in a manner which a member of the public would view as "patently unfair or indefensible".

• The Society's caution in proceeding to unsupervised access was reasonable. Mother suffered a serious breakdown in August 2017. She did not question that she was unable to care for the children at that time. Mother's dis-regulated behavior continued into September/October 2017. Her treating psychiatrist did not identify what might have been the trigger for that breakdown.

• The Society investigated the issues, meeting with Mother multiple times and contacting her doctors. It assessed and reassessed its position on Mother's access, and acknowledged the positive development in that access after October, 2017.

• The fact that the court ultimately reached a decision as to appropriate access for Mother that differed from the Society position does not mean that the Society's position was "patently unreasonable".

[16] I make no order as to costs against the Society.

Claim Against Father

[17] Does a parent who is unsuccessful in opposing a motion brought by the other parent in a protection case enjoy the same protection against costs as the Society?

[18] That question was answered in Children's Aid Society of Ottawa v. S. (D.) supra. In that case the father unsuccessfully appealed a decision placing a child with the mother. The mother adopted the Society's position on appeal. She claimed costs against the father, arguing that the rationale against ordering costs payable by a society did not apply to cost disputes between parents.

[19] The Divisional Court did not agree, and observed "the wording of subrule 24(2) is clear and unequivocal. The presumptive entitlement to costs 'does not apply in a child protection case'. The mother is not presumptively entitled to costs. There may be appropriate cases for costs awards as between the parents in a child protection case, but entitlement must be based on something more than merely the outcome of the case."

[20] Justice Heather McGee found that, as a general rule, parents in a protection proceeding should have the no less protection against a claim for costs against them by the other parent than they would have against a claim brought by the Society[3].

In my view, costs as between parents in a protection proceeding ought not to have a different treatment. The subject matter of the application, the governing statute and the jurisprudence all speak to the same overriding purpose: the care and protection of children. The fear of a costs sanction ought not to impede a vigorous presentation of any participant's case provided that one is acting in good faith, and in a manner not excessively unreasonable or disproportionate to the issues involved. The legislature has specifically recognized this approach by eliminating the presumptive entitlement to costs to any successful party.

[21] I agree with this view.

[22] Courts have found that parents should not be ordered to pay a Society's costs unless they exhibit extreme unreasonable conduct.

Unless unreasonable conduct is so excessive as to warrant condemnation, thereby putting the case into the category of one of those "rare" cases warranting a cost consequence, I find that the parent's right to oppose a child protection proceeding should not be lightly interfered with, even in cases where, with the benefit of hindsight the manner and the nature of the defence presented by parents may be considered to have been excessive and unreasonable. Kenora-Patricia Child & Family Services v. (M.A.), [2007] W.D.F.L. 1732.

[23] Applying that standard to claims by one parent against another in a protection case, courts have only awarded costs where there is a history of highly unreasonable behavior, often behaviour that harms the children involved by heightening and extending conflict between the parents.[4] Often such cases involve a parent who has repeatedly disobeyed court orders and misled the court, and who is found to be acting in bad faith.[5]

[24] When extreme behavior of this type is not involved, courts exercise their discretion to refuse to award costs claimed by a successful parent against the other parent in a protection case. For example, in Children's Aid Society of Niagara Region v. L.J.R. and K.B.R., (2005), O.J. 4455 (Sup. Ct.), Justice Joseph Scime declined to award costs claimed by a mother against a father who was unsuccessful in opposing a Society application placing the children with the mother under supervision. The mother had supported the Society's application. Justice Scime noted that the father "was not an ordinary litigant protecting financial or property interest. He was faced with state intervention in the care and upbringing of his children and had the right to compel the society to prove its case."

[25] Even highly unreasonable behavior by a parent may not result in an award of costs if the genesis of that behavior is mental illness, and not just stubborn rigidity. In Children's Aid Society of Ottawa v. L. (D.), 2014 ONSC 6469, Justice Timothy Ray heard a claim for costs by a grandmother who was granted a 57.1 custody order against the father. Justice Ray found that the father had unduly prolonged the trial and had acted very unreasonably. He stated "Were it not for (the father's) mental issues which I believe guided his unreasonable behavior, I would have ordered that he pay (the grandmother's) costs."

[26] In this case, Father's position on Mother's claim for expanded access was more restrictive than the Society's. He supported some access in the community, but only after Mother had obtained a complete psychiatric report that addressed the reasons for her breakdown and treatment plan.

[27] I cannot find that Father engaged in unreasonable behavior, let alone unreasonable behaviour at a level which would warrant a claim for costs. As a backdrop, I note that there was no evidence that Father had not facilitated the frequent access arranged by the Society prior to the motion being heard. Prior to Mother's breakdown, Father was open to supporting the children's continued residence with her.

[28] Father's caution on the issue of expanded and unsupervised access was not unreasonable, given the factors already noted above. He filed his response to Mother's motion in a timely fashion.

[29] There will be no order of costs against Father.

Released: May 14, 2018

Signed: Justice E.B. Murray

Footnotes

[1] Since the argument of the motion the children's residence has changed again, to Society care. Father was arrested on a warrant pursuant to a U.S. extradition request on March 14, 2018.

[2] 2017 ONCJ 784

[3] Children and Family Services for York Region v. S. (A.), (2010) 2010 ONSC 1287, O.J. 872 (Sup. Ct.)

[4] See Children's Aid Society, Region of Halton, v. J.S. and D.S., 2014 ONCJ 38

[5] See Children's Aid Society of Ottawa v. P. (M.), 2014 ONSC 6567; Children's Aid Society of Simcoe County v. C.S., M.S. and D.C., (2006), O.J 871 (Sup. Ct.); Children's Aid Society of Ottawa v. K., (2005) O.J. 2573 (Sup. Ct.)