WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) IDEM: ORDER RE ADULT — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) IDEM — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: February 13, 2018

Court File No.: C10258/17

Between:

Children's Aid Society of Toronto Applicant

— AND —

E.C. Respondent Mother

J.C. Respondent Father

Before: Justice Paulseth

Heard on: January 16, 2018

Cost decision released on: February 13, 2018

Counsel

• J. Kaiman — counsel for the applicant society
• L. Bombardieri — counsel for the respondent mother
• J.C. — on his own behalf
• N. Rai — counsel for the Office of the Children's Lawyer, legal representative for the children

Decision

Paulseth J.:

[1] Introduction

[1] This is a decision on the mother's request for costs from the father. She claims that there were several appearances in this case that resulted in unreasonable delays in the court being able to make a finding in need of protection, pursuant to the Child and Family Services Act (the Act).

Overview

[2] On February 13 and 16, 2017, respectively, mother and father were served with a Protection Application, dated February 9, 2018, seeking a finding in need of protection under subsection 37(2)(b) and (g) of the Act. These sections relate to risk of physical (b) and emotional harm (g) to their two children. The children are EC, born […], 2007, and JC, born […], 2008. The Applicant (society) was seeking that the children be placed with mother under a supervision order with supervised access to the father.

[3] The parents were experiencing a very high conflict separation. The legal issues arising from their separation were before the Superior Court of Justice. The society was alleging that the children were repeatedly exposed to the escalating emotional, verbal, and physical abuse of the father towards the mother. The children were described as afraid and anxious due to their exposure to this conflict.

[4] EC was particularly negatively impacted by this conduct. EC was seeing a psychologist at Hospital for Sick Children (HSC) and also had chronic constipation and soiling, which required regular monitoring. The society was alleging that father refused to speak to the psychologist and refused to give EC the daily laxative that was recommended. By December of 2016, EC's stomach was so badly distended that he had to be rushed to HSC with a bowel obstruction. At that point, the society alleges that father argued against the diagnosis and was insisting that the child be discharged.

[5] There were 6 court appearances until a finding in need of protection was agreed upon on September 7, 2017. There were three additional court dates for father's two different counsel to be removed from the record. There were also 3 procedural motions by Form 14B.

[6] The society and the counsel for mother were consistently in agreement with the finding in need of protection being made and sought creative wording to satisfy father and his various counsel.

[7] Mother seeks costs in particular of the wasted conference on July 27, 2017 which led to two further appearances, including the assignment of trial dates, and a production of police records motion, before father finally agreed to a finding on September 7, 2017.

Legal Framework for Costs Between Parents in Child Protection Proceedings

[8] All cost orders are exercises of judicial discretion pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, s.131.

[9] The discretion is exercised within the parameters set out in section 24 of the Family Law Rules (FLR).

[10] Unlike ordinary family and civil matters, there is no presumption of costs in child protection proceedings according to subrule 24(2), FLR.

[11] There is a high threshold to overcome if a party is seeking costs against a children's aid society, because the society is not an ordinary litigant. There are a host of inexhaustive factors to be considered in examining the role of the society.

[12] The principles that have developed with respect to cost awards against a parent in a child protection proceeding are along these lines:

• Parents should be entitled to vigorously oppose and defend themselves in a child protection proceeding without the fear of cost sanctions.

• Parents will not be insulated from a claim of costs if they act in bad faith, are unreasonable or act in a manner that is disproportionate to the issues involved. See Children's Aid Society of Halton Region v. J.S., 2014 ONCJ 38; Children's Aid Society of Ottawa-Carlton v. S..

• Courts should be very cautious about awarding costs against parents in CAS matters – Kenora-Patricia v. A.M., [2005] O.J. No. 5305 (OCJ).

• Parents are to be given latitude in defending their case and in putting the society to the strict proof of its case.

• Even in the face of difficult conduct on the part of parents, costs should not be awarded against them except in exceptional or unusual cases. (Child and Family Services for York Region v. A.S., 2010 ONSC 1287; Jewish Family and Child Service of Greater Toronto v. Y.B., 2011 ONCJ 633).

• In particular, courts have found that to lower the exceptionality standard for costs against parents in child protection proceedings could have adverse and unfair consequences; such that, parents are reluctant to advocate fully for their case against a large seemingly well-resourced institutional litigant.

• Parents will not be insulated from a claim of costs if they act in bad faith, are unreasonable or act in a manner that is disproportionate to the issues involved. See Children's Aid Society of Halton Region v. J.S., 2014 ONCJ 38; Children's Aid Society of Ottawa-Carlton v. S..

• The closer the case resembles a custody and access proceeding, the more likely the court will order costs between the parties. See Jewish Child and Family Services of Greater Toronto v. Y.B.; and Children and Family Services for York Region v. A.S..

• Courts have been more willing to order costs between competing caregivers/parents in child protection cases where one party incurs significant costs due to the bad faith or seriously unreasonable behavior of the other, or behavior of the other that prolongs the proceeding. See Children's Aid Society of Ottawa v. K..

• Examples of conduct that resulted in cost awards against a parent in a child protection proceedings are:

  • Filing excessive and repetitive affidavits
  • Causing the proceedings to be protracted
  • Filing materials and making submissions that were out of proportion to the nature of the relief being requested
  • Making meritless claims
  • Behaving in an obstructionist manner

• Offers to settle, further to Rule 18 (FLR), are to be interpreted differently in the context of child protection proceedings, in that the outcome can be less favourable than the offer without attracting cost consequences as long as the position was reasonable. See Children's Aid Society of Hamilton v. S.R..

• If liability for costs is found, the appropriate quantum is found by reference to Rule 24 and the general costs principles set out in the case law. See: Children's Aid Society of Hamilton v. K.L., 2014 ONSC 3679.

• Subrule 24(8) of the rules states that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. Persistent refusal by a party to make accurate financial disclosure and reveal their true income may rise to the level of bad faith. See: DePace v. Michienzi; Kardaras v. Kardaras, 2008 ONCJ 616. A bad faith finding on some specific issue does not necessarily have a spill-over effect to other issues. Hunt v. Hunt, [2001] O.J. No. 5111 (SCJ).

• Subrule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ). There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See: S. (C.) v. S. (M.). Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation. See: Scipione, supra.

These Proceedings

[13] On February 16, 2017, the matter came before the court for the first time and was adjourned with a "temporary without prejudice" order made placing both boys in mother's custody under the supervision of the society, with conditions attached, including conditions relating to father's access. A consent was filed with the court for this order.

[14] On March 28, 2017, the matter was again adjourned. Each parent had counsel present and mother's Answer had been filed. Counsel for father disputed the finding and submitted that the conflict was now over as the parents had separated and mother and the children were back in the home. Counsel for mother disagreed and wanted father to refrain from talking about his own views on the child's treatment with the child.

[15] On June 1, 2017, the matter was again adjourned to a motion date on June 7, 2017 for a consent to surgery issue. A separate date and time was also scheduled for the finding hearing on July 4, 2017 with filing timelines. There was no agreement on the surgery. Mother and the society were consenting but Father was opposed and seeking unsupervised access. Counsel for the children indicated that the hospital was afraid to move forward in the face of threats by the father. A specific order relating to who holds the authority to consent to the surgery was necessary.

[16] The June 7, 2017 motion date was vacated at the last minute when father consented to the surgery, as recommended by the child's treating physician.

[17] On June 7, 2017, I set the matter for a "finding hearing" to July 4, 2017, to be argued on affidavits. Further to section 52 of the Act, the court must set a date for a hearing if a finding has not been determined within 3 months of the court application. July 4th would be almost 5 months after the Protection Application was filed.

[18] On June 26, 2017, father's counsel was replaced by another counsel.

[19] On July 4, 2017, the parties attempted to adjourn the finding hearing for two and a half months. I asked counsel and parties to attend and explain this serious delay. I directed that the case be ready for trial assignment court on August 12, 2017 on both the finding and disposition issues. Trial plans were to be filed and discussed at a conference on July 27, 2017. The issue in dispute was clearly the finding in need of protection. I heard from all counsel on this issue. Counsel of record for father sent an agent. This agent/counsel attempted to argue that a finding in need of protection was not necessary as a precondition to a custody order being made under section 57.1 of the Act. The possible custody order was a disposition option being discussed by the parties.

[20] A plain reading of subsection 57(1) and 57.1 and a review of the case law interpreting this precise issue indicate that this argument was meritless. See Children's Aid Society of Toronto v. R.(M.), [2015] OJ No. 6930 (OCJ); Family and Children Services of Frontenac, Lennox, and Addington v. B.(B.), [2013] OJ No. 2032 (SCJ). All counsel except counsel for father understood this legislation and case law. When this jurisprudence was pointed out to agent/counsel for father, he proceeded to grandstand in a rather preposterous manner indicating that his principal had often obtained such orders. Sadly, the case had to proceed down the dispute path, even though the conflict between the parents was clearly causing the children serious emotional harm.

[21] On July 20, 2017, counsel for father filed his trial management conference brief and witness list, including letters from 10 character witnesses for him. Many of the character letters were from professional colleagues from as far away as Texas and California, with views on father's parenting. Father also filed an 89 paragraph affidavit. The affidavit was not attached to a motion or in aid of any motion before the court. This material from father was a waste of mother's time to review and address.

[22] On July 27, 2017, the trial management conference was held. Again, the principal counsel sent his junior counsel/agent to participate in the trial management conference. The discussion again centred on the one issue of the finding and the agent/counsel maintained his position. The matter could have easily settled that day. The facts to support a 37(2)(g) finding, agreed upon by all parties except father, were simply: the "impact of the high conflict between the parents". As the principal counsel was not in attendance, the discussion could not be advanced in any real way. Other counsel and I requested that he be reached by phone but he was not available. Further, agent/counsel for the father indicated that their retainer was not firm for the trial. Once the matter had been referred on July 4th to the Assignment court for trial, essentially at the insistence of father, trial dates are publicly available and all counsel are expected to ensure their retainers are in place and the dates are kept clear. Counsel for mother sought costs of this wasted appearance and costs were accordingly reserved until the issue was resolved.

[23] On August 10th, 2017, this matter was assigned as a stand by trial for 6 days beginning September 25, 2017.

[24] On August 14, 2017, a records application by the society for production of Toronto Police Services records was granted, on consent of all parties.

[25] On August 29, 2017 counsel for father brought a motion to be removed from the record, despite trial dates being assigned. Rule 4(10.1) (FLR) was brought to counsel's attention by the court—a rule that specifically requires leave of the court for counsel to be removed when a child protection case has been scheduled for trial or placed on a trial list. Factors to consider on hearing such a motion include delay, bona fides, and the interests of justice. See Children's Aid Society of Niagara Region v. R. (L.J.), [2005] O.J. No. 478 (OCJ). Father was not in attendance and the matter had to be adjourned in order for the court to hear from father that he was prepared to proceed on the trial dates without counsel.

[26] On August 31, 2017, counsel for father was removed from the record.

[27] On September 7, 2017, father agreed, with the assistance of duty counsel, that there could be a finding in need of protection under clause 37(2)(g), based on the agreed upon fact that exposure to the conflict between the parents was causing the children emotional harm at the time of the Protection Application. A five part clinical plan for the next steps was also agreed upon. The trial dates were vacated.

Position of the Parties

[28] Counsel for mother is seeking full indemnity of $27,386, inclusive of disbursements and HST and is alleging bad faith on the part of father.

[29] The arguments put forward by counsel for mother include:

(1) It took 6 court appearances for a finding that her client agreed to all along;

(2) Father fired two lawyers, unnecessarily delaying the matter and incurring additional costs for mother;

(3) Mother had been working cooperatively and voluntarily with the society from the beginning and the only reason for the Protection Application was the father's refusal to consent to the recommended surgery;

(4) On August 9, 2017, she served an Offer to Settle, in consultation with the society, and this offer included the same facts that ultimately were agreed upon for the finding on September 7, 2017;

(5) The senior counsel on record for the father should have attended the July 27, 2017 trial management conference, as it became a wasted appearance without his involvement.

(6) Every appearance required several hours of constant negotiation. Mother missed work on several occasions in order to attend at court.

(7) Father can afford to pay a costs order, as his income is $113,000 a year and each party recovered $60,000 from insurance when their cottage burned down.

[30] Counsel for mother filed a detailed Bill of Costs, a copy of father's most recent Financial Statement from August, 2017, as filed in the Superior Court, a copy of her Offer to Settle, and the proposed Voluntary Agreement offered by the society.

[31] Father filed a subsequent affidavit to dispute the costs request. He argues that:

(1) The society and the mother have collaborated against him in this proceeding;

(2) He has paid $53,971 for his own legal costs and mother should pay her own;

(3) He attributes the delays to the lack of agreement by mother and the society to his persistent request for unsupervised access.

(4) He was trying to negotiate a change in his access and he made his agreement to the finding conditional on obtaining the access he wanted.

[32] Counsel for mother argues that father has conducted himself in an unreasonable manner and has shown bad faith, based on:

(1) Father's affidavit material disputed all of mother's facts and essentially agreed that the conflict was hurting the children;

(2) Father escalated the dispute by constantly disputing every fact alleged by mother and the society;

(3) Father used the court appearances as an opportunity to attempt to pursue his position on the child's medical issues and his own access requests; as opposed to reaching a reasonable agreement on the finding issue;

(4) Father had to give up his opposition to the medical procedure when he had no evidence to support his views; his current commentary about EC's medication is not consistent with the mother's understanding of the medical advice; and

(5) Prior to the most recent court appearance, which was scheduled for the costs argument, father texted mother to cancel the next access visit until he saw how court went. He declined to confirm a make-up visit. The text indicated: "Court is not fair to me. If there were no indefinite court issues against me, I'd be a lot more clear and straightforward about financial things and the kids…"

Liability for Costs

[33] It is unusual for one parent to claim costs against another parent in child protection proceedings. The usual presumptions do not apply.

[34] The court wants parents to have every opportunity to defend allegations and propose plans, without the fear of cost consequences. Difficult behaviour or aggressive conduct does not, by itself, attract cost consequences in child protection proceedings.

[35] However, there must be reasonable limits on the expense that one parent can cause another parent. The limits must relate to the proportionality of the litigation response and the ultimate outcome being sought. Parents who act unreasonably or in bad faith must be held accountable for that behaviour; otherwise, the system becomes virtually inaccessible to the other parent.

[36] This was a case of an extremely high conflict separation. The conflict had serious negative impacts on the children. Mental health and medical professionals were forced to become involved with the children. The society attempted for some time to work voluntarily but without any apparent success with the father. Father would not agree to a voluntary agreement.

[37] Every court appearance was used by the father to further argue every fact with the mother and to constantly negotiate for his increased and varied access position.

[38] The June 7, 2017 medical consent for surgery motion was settled at the last minute. Father's position up to this point can viewed as a parent's entitlement to vigorously test the society position. No costs are liable up to this point.

[39] Thereafter, however, father became increasingly unreasonable:

(1) The finding hearing with affidavit evidence was to be held on July 4, 2017. Father did not file any material and obtained the consent adjournment from the other parties. When the court disagreed, based on the statutory timeframes, the matter was moved to trial. On July 20, 2017, the father then filed a lengthy affidavit with 10 character letters—all in aid of no motion before the court. Much of the affidavit argued the couple's conflicted history. The character letters were almost completely irrelevant to the issues before the court. They were from friends and relatives, some who lived as far away as California. At that point, I stress there was no motion before the court.

(2) The appearance on July 27, 2017 was a complete waste of time, despite efforts from counsel for the other parties and the court attempting to resolve the finding issues. It eventually became clear that without the senior counsel present, nothing could be accomplished.

(3) The mother's written Offer to Settle of August 9, 2017, before the Assignment court date, was completely appropriate. The Offer is a mirror image of the order finally made in this matter on September 7, 2017. Father should have accepted it.

(4) The August 10, 2017, appearance at assignment court became moot after father later agreed to the finding on September 7, 2017 and the August 14, 2017 records production motion also became unnecessary. I should add that after August 10, 2017, all counsel were expected to hold the 6 trial dates available.

(5) The agreement on the finding on September 7, 2017 was based on facts that were clearly supportable from the beginning of the case.

(6) Father's persistent objection to the finding was completely unreasonable. On July 4, 2017, father wanted the case transferred back to the Superior Court of Justice.

(7) Father's text messaging to the mother in a clear attempt to intimidate her and knowing that her court costs were mounting was conduct in bad faith.

(8) When so many of father's tactics related to his perceived lack of access and lack of unsupervised access, it was unconscionable to use the children's time with him as a maneuver in the costs' argument. The criteria for a finding in need of protection is very different from the criteria for access. This is precisely the type of behaviour that has led to the very rare occasions of costs being awarded against a parent in child protection proceedings.

[40] Mother's conduct was reasonable throughout. Despite the constant battering from both father and his counsel, mother remained calm and her counsel continued to try to negotiate in good faith and in a respectful and professional manner.

[41] In conclusion, I find the conduct of the father in this case to be persistently and extraordinarily unreasonable. As well, I find that his conduct in negotiating constantly for access in exchange for a finding and texting mother that his transparency and cooperation were dependent on the costs outcome reached the high standard required for a finding of bad faith.

Quantum of Costs

[42] Quantum must be decided by reference to the usual cost principles and to Rule 24 (FLR).

Importance, Complexity, or Difficulty of the Issues

[43] Although I have indicated that the father's position regarding the finding was completely unreasonable, it does not follow in child protection proceedings that the issues were uncomplicated. In this case the issues included:

(1) Medical and psychological concerns;

(2) Hospital monitoring, as well as surgery and in-patient records;

(3) Police records;

(4) Complicated access plans; and

(5) Stressful court appearances, as father persisted in his demands and arguments.

Reasonableness of Each Party's Behaviour

[44] Father's conduct became increasingly strident and unreasonable. He continually spoke up in court to dispute any facts being alleged by the society or the mother. These comments were in addition to his counsel of the day's submissions. When the court asked the parties to stand the matter down and attempt to resolve the finding issue in particular, father wasted everyone's time by essentially pretending to negotiate but really just pursuing his own agenda for access. Six appearances for this issue, spread over several months, is not reasonable on the facts of this case.

[45] Both the society and the mother took very reasonable positions and attempted at every appearance to resolve the finding issue. Mother remained calm and child-focused.

Lawyer's Rates and Time Spent

[46] Costs for the original appearance on February 16, 2017 are not available as I was not the judge and costs were not reserved. Costs for the two case conferences on March 28, 2017 and June 1, 2017 are not available as conferences are intended to be solution focused.

[47] Mother's counsel has almost 9 years of experience and bills at a modest $350 an hour.

[48] Costs requested by mother for July 4, July 24, and September 7, 2017 appearances are reasonable amounts and total $5,460. Costs for preparation for the finding hearing are appropriate, as well as preparation of the costs material (which I calculate as two hours to include the additional affidavit material), which totals $2,362.50. Costs for ongoing communication with all counsel and client from July, 2017, I estimate as one third of the total hours, or 20 hours at $350 per hour, totalling $7,000.

[49] Disbursements are fixed at one third of the total or $521.40.

[50] Counsel was also inconvenienced by having to reserve 6 trial dates for almost a month that were completely unnecessary; for this I attribute $1,000.

[51] In total, I would award costs of $16,343.90 plus HST against the father, payable to the mother's counsel within 30 days.

Released: February 13, 2018

Signed: Justice Debra Paulseth