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 4, 2019

Court File No.: C91203/16

Parties

Between:

Children's Aid Society of Toronto Applicant

— AND —

R.G. (father) M.L. (mother) C.G. (paternal uncle) K.-S.L. (maternal grandmother) Respondents

Before the Court

Before: Justice Roselyn Zisman

Heard by means of: Written submissions

Reasons for Judgment released on: June 4, 2019

Counsel

• Chithika Withange — counsel for the applicant society
• G. Elizabeth Gaudet — counsel for the respondent R.G. (father)
• Sheila MacKinnon — counsel for the respondent C.G. (paternal uncle)
• Mary P. Reilly — counsel for the respondent K.-S.L. (maternal grandmother)
• No appearance by or on behalf of M.L. (mother), even though served with notice.

Cost Decision

Zisman, J.:

1. Introduction and Position of the Parties

[1] The Respondent K.-S.L. ("the maternal grandmother") seeks costs of a motion to terminate overnight access to C.G. ("the paternal uncle") and that he have day access only. The maternal grandmother's motion was supported by the Children's Aid Society but opposed by both the paternal uncle and R.G. ("the father").

[2] At the time the motion was heard, the paternal uncle had access from Friday afternoon to Saturday evening. This access had been in place since mid-October. The father was not permitted to stay overnight in the home of the paternal uncle when the children were present and the father's access was to be supervised by the paternal uncle.

[3] The motion was heard on March 14th and the decision granting the maternal grandmother's motion was released on March 19th. The parties were scheduled to attend Assignment Court on April 10th to set dates for trial in June.

[4] The maternal grandmother seeks total costs of $16,528.92 against the father and the paternal uncle to be equally shared as she was successful on the motion and served an offer to settle. The court order was in the exact terms requested by the maternal grandmother.

[5] It is the position of the father and the paternal uncle that as this is a child protection proceeding there is no presumption that the successful party is entitled to costs.

[6] It is submitted that the father and the paternal uncle acted reasonably as they had previously agreed that the maternal grandmother have custody of the two children. Further, as indicated in the decision on the motion, the court held that a trial was necessary to resolve several credibility issues with respect to possible breaches of the outstanding order.

[7] Further, with respect to the father he did not oppose supervision of his access as he acknowledged that there were legitimate concerns about his drug use and the impact of his addiction on the children.

2. General Principles

[8] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court.

[9] Family Law Rules (FLR) 24 sets out a framework for awarding costs for family law cases.

[10] In the case of Mattina v. Mattina the Ontario Court of Appeal has confirmed that modern family cost rules are designed to foster four fundamental purposes:

1. to partially indemnify successful litigants;
2. to encourage settlement;
3. to discourage and sanction inappropriate behaviour by litigants; and
4. to ensure that cases are dealt with justly pursuant to subrule 2(2) of the FLR.

[11] I am also mindful that the court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Council the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.

[12] FLR 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs.

[13] However, pursuant to FLR 24(2) that presumption does not apply in a child protection case or to a party that is a government agency.

[14] To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. The position each party took at trial should also be examined.

[15] A cost award is subject to the factors listed in FLR 24(12), the directions set out under FLR 24(4) (unreasonable conduct), FLR 24(8) (bad faith) and FLR 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party.

[16] FLR 24(12) which sets out factors relevant to setting the amount of costs, specifically emphasizes "reasonableness and proportionality" in any costs award.

[17] FLR 24(12) provides as follows:

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party's behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[18] FLR 24(5) provides guidance on how to evaluate reasonableness:

In deciding whether a party has behaved reasonably or unreasonably, the court shall examine:

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

3. Application of Legal Principles to the Facts of This Case

[19] Although in child protection cases, there is no presumption that the successful party is presumed to be entitled to costs, there is precedent for costs being awarded in child protection cases.

[20] The case law supports the following principles:

1. Parents should be entitled to vigorously oppose and defend themselves in child protection proceedings without the fear of cost sanctions;

2. Costs should only be awarded against parents in a child protection proceedings in rare and exceptional circumstances;

3. Courts are more willing to order costs between competing parties (caregivers and parents) in child protection proceedings if they act in bad faith, are unreasonable or act in a manner that is disproportionate to the issues involved;

4. Courts are more willing to order costs between parties, the closer the child protection proceeding resembles a custody and access proceeding;

5. Courts have awarded costs against one parent in favour of another parent in circumstances where:

   • the parent has filed excessive and repetitive affidavits that the other parent needed to respond to;

   • the parent caused the proceedings to be protracted;

   • the parent filed and made submissions that were out of proportion to the nature of the relief being sought by the society or the other parent;

   • the parent disregarded court orders, behaved in an obstructionist manner, made meritless claims and actively involved the children in the conflict; and

   • the parent misled the court, brought frivolous motions or engaged in serious, unjustified behaviour or acted in bad faith.

[21] On the motion I found that the maternal grandmother had met her onus to prove that there had been a change in circumstances. I found that there were serious concerns that the paternal uncle had breached the terms of supervision and permitted the father to be present overnight at his home based on the affidavit of a private detective and the children's statements. I also found that there were concerns about the paternal uncle's serious lack of judgement in permitting an all-night party at his home while he was caring for two young children.

[22] However, the decision also stated that the issues of credibility of the various affiants needed to be tested at trial. As the trial was scheduled to be heard shortly, I held that until the trial or resolution access should revert to being day access only.

[23] The maternal grandmother acted reasonably as based on her concerns she could no longer trust the paternal uncle to be a supervisor. She acted reasonably in agreeing that the access by the paternal uncle revert to being day access and that the father's access continue to be supervised by the paternal uncle.

[24] The paternal uncle and father both acted reasonably in disputing the motion as quite naturally they wished to maintain the status quo access. They filed affidavits to dispute the allegations being made by the maternal grandmother. They acted in good faith and the materials filed were proportionate to the allegations being made.

[25] As indicated in the case law, costs in child protection cases should only be ordered in rare and exceptional circumstances. Parents should not be impeded in presenting their case in fear of a cost sanction if they act reasonably and if their submissions and materials relied upon are proportionate to the issues.

4. Conclusion

[26] I find that in the circumstances of this motion as it was in the context of a child protection proceeding, there should be no order for costs. However, if this had been a domestic file I would have ordered costs and I would not have found the costs sought to be overly excessive. Litigants need to appreciate that legal proceedings are time consuming and expensive.

[27] Motion for costs dismissed.

Released: June 4, 2019

Signed: Justice Roselyn Zisman

Footnotes

[1] 2018 ONCA 867 at para. 10 citing with approval Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), at para. 22 and E.H. v. O.K., 2018 ONCJ 578, at para. 8 and Sambasivam v. Pulendrarajah, 2012 ONCJ 711 at para. 37.

[2] , 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont. C.A.); Delellis v. Delellis

[3] Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 94

[4] Sims-Howarth v. Bilcliffe (2000), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.), at para. 1.

[5] Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ)

[6] Mattina v. Mattina, ibid at para 13; Berta v. Berta, ibid.

[7] FLR 24(12) was amended in July 2018

[8] See, for example: Windsor-Essex Children's Aid Society v. J.D., [2017] O.J. No. 4185 (OCJ) at paras. 21-25; Jewish Family and Child Services of Greater Toronto v. Y.B., 2011 ONCJ 633, [2011] O.J. No. 5490 (OCJ) at paras. 18-22; Jewish Family and Child Services of Greater Toronto v. S.K., 2016 ONCJ 165, [2016] O.J. No. 1569 (OCJ) at paras. 45-55 and cases cited therein