WARNING

The court hearing this matter directs that the following notice should 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: August 9, 2019

Court File No.: Brampton 16-20108

Parties

Between:

The Children's Aid Society of the Region of Peel Applicant

— AND —

P.D. Respondent/Mother

— AND —

K.D. Respondent/Father

Before: Justice Lise S. Parent

Costs Decision released on: August 9, 2019

Counsel

• A. Rozario — counsel for the applicant society
• P.D. — self-represented party
• Lorne Levine — agent for the respondent/father

Decision

PARENT J.:

The Issue

[1] On May 30, 2019, I released my decision denying the Society's request to grant an order, as requested in their Amended Amended Protection Application filed March 19, 2019, on a summary judgment basis.

[2] At the court appearance on June 12, 2019, counsel and the mother, P.D. agreed to timelines to provide written submissions on the issue of costs as requested by P.D. and the father, K.D.

[3] All parties provided their submissions in accordance with my endorsement dated June 12, 2019.

[4] My endorsement dated June 12, 2019 also provided timelines for the filing of materials regarding a motion scheduled to be heard on August 21, 2019. Unfortunately, there was some confusion at the administrative level which has resulted in the cost submissions only being brought to my attention on August 6, 2019.

Position of the Parties

[5] Submissions provided on behalf of the father, K.D., seek costs, inclusive of fees, disbursements and HST, on a full recovery basis in the amount of $8,060.00.

[6] Submissions provided by the mother, P.D., seek costs, inclusive of fees, disbursements and HST, on a full recovery basis in the amount of $5,376.00 payable within 30 days.

[7] Submissions filed on behalf of P.D. and K.D. both allege that the Society's conduct and position throughout the litigation and in bringing the summary judgment motion were unreasonable and unfair, and therefore, a cost sanction is appropriate in these circumstances.

[8] In the submissions filed in support of his request for costs, counsel for K.D. indicated as follows:

(a) that the commencement of protection proceedings in 2016 resulted in an automatic stay of the domestic matter thereby preventing the parties from addressing the custody/access issues before the court;

(b) the Society's involvement was based on unfounded allegations by P.D. that K.D. had sexually and physically abused their child;

(c) despite K.D. fully co-operating with the Society and police, which included voluntarily restricting his access to his child pending the completion of the various investigations by third parties which ultimately led to an absence of criminal charges being laid and his access restored, the Society continued their involvement with him, the mother and the child;

(d) despite being aware of the animosity of P.D. toward him and the detrimental effect of this behaviour on his child, the Society has taken no steps to remedy the problem;

(e) the summary judgment motion was a late change in position of the Society and only requested while the parents were in the process of preparing for trial; and

(f) the summary judgment motion prolonged the litigation between the parents thereby increasing their legal costs, and also resulting in a detrimental effect on the child.

[9] In her submissions P.D. indicated as follows:

(a) the Society changed its position without any merit and served an amended Protection Application seeking to withdraw;

(b) the Society was aware of the potential cost consequences should they be unsuccessful in their motion for summary judgment;

(c) the notice of motion served by the Society sought relief other than granted by the court at the time the motion was scheduled;

(d) the motion for summary judgment was without merit;

(e) the Society did not withdraw their summary judgment motion;

(f) the Society failed to comply with disclosure timelines ordered by the court thereby increasing her costs; and

(g) the motion delayed the matter proceeding to trial.

[10] The Society opposes the request for costs. It denies that its conduct or position in relation to the Protection Application and/or the motion were unreasonable or unfair.

[11] Counsel for the Society submitted that:

(a) The Society commenced a Protection Application involving this family on September 7, 2016 due to concerns for the child stemming from the parents' high conflict issues and their seemingly inability to resolve these issues without impacting their child;

(b) At the time of the Society's involvement, the child was undergoing invasive therapy and not having any contact with K.D.;

(c) The Society undertook and participated in various investigations and examinations regarding this protection concerns in this matter. The Society never received information confirming the allegations of P.D. that K.D. had sexually and/or physically abused their child;

(d) The Society's involvement facilitated and supported contact between K.D. and the child;

(e) The Society supervised this family, including the placement of the child in the care of P.D. and access by K.D., for almost two and a half years; and

(f) The parents' high conflict relationship prevented them from agreeing to terms of custody and access despite, from the Society's perspective, that a stabilization of the circumstances that supported the Society's involvement with this family initially.

[12] Counsel for the Society submitted that their initial and continued involvement was warranted given the very significant history of domestic conflict between the parents and their pattern of being unable and/or unwilling to shield their child from this high conflict.

Authorities and Analysis

[13] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, set out that modern costs rules are designed to encourage three fundamental purposes, namely:

(a) to partially indemnify successful litigants;

(b) to encourage settlement; and

(c) to discourage and sanction inappropriate behaviour by litigants.

[14] Rule 2(2) of the Family Law Rules (FLR) adds a fourth fundamental purpose, namely to ensure that cases are dealt with justly.

[15] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as am. provides that cost orders are in the discretion of the court. Rule 24 of the FLR provides a framework for awarding costs.

[16] An award of costs is subject to the factors listed in Rule 24(12), Rule 24(4) relating to unreasonable conduct of the successful party, Rule 24(8) relating to bad faith, Rule 18(14) relating to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, para. 94.

[17] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs. These are:

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] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion.

[19] Rule 24(2) of the FLR provides that the presumption under Rule 24(1) does not apply in child protection matters. This limitation has been acknowledged by all parties in their submissions. Rule 24(2) however does not eliminate the court's discretion to order costs in child protection matters.

[20] The question in this case therefore is has the Children's Aid Society of the Region of Peel, by being involved with this family through a court proceeding and by bringing a summary judgment motion, acted in such a manner so as to warrant a costs order to be made against them?

[21] At paragraph 14 of her decision in Children's Aid Society of Hamilton v. K.L., 2014 ONSC 3679, Chappel, J. details the factors the court must consider when determining whether to award costs against a child protection agency. These factors are as follows:

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.

[22] The determination of reasonableness is an objective one, namely whether the society's conduct can be seen, through the eyes of a properly informed, reasonable person, as being reasonable, fair and appropriate given their statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection. See: Catholic Children's Aid Society of Toronto v. S.V., 2000 O.J. No. 5866 (OCJ); Children's Aid Society of Niagara Region v. W.D., 1 R.F.L. (6th) 84 (Ont. Div. Ct.); Children's Aid Society of Ottawa-Carleton v. S..

[23] In Children's Aid Society of Toronto v. S.W., 2018 ONCJ 772, Justice Melanie Sager ordered costs against a child protection agency. Justice Sager stated at paragraph 59 of her decision as follows:

"This costs order is designed not to deter the society from carrying out their duties but rather to deter it from doing so in a manner that brings the society and the administration of justice into disrepute."

Order

[24] There is no dispute between the parties that this matter is one of longstanding litigation, in both the domestic and child protection forums, and characterized with high conflict, animosity and mistrust between the parents and at times, by the parents towards the Society.

[25] A summary judgment motion does allow for the resolution of a matter in a process other than a trial. Rule 16(2) of the FLR is clear that such a motion is available in the context of a child protection case.

[26] On the motion, I found that the Society did not meet the legal onus permitting me to grant the order requested summarily. My Reasons for Judgment were critical of the evidence as presented and relied upon by the Society in support of their request.

[27] Given the historical litigation and high conflict nature of this matter, I do not find that the Society's decision to be proceed summarily, rather than by trial, can be accepted as the Society acting in bad faith, unreasonably or in such a manner as to negatively impact the administration of justice.

[28] I further do not accept that the mere fact of being the unsuccessful party in a child protection matter supports an award of costs against that party.

[29] For these reasons, I do not find that the higher threshold needed to be met when a party seeks costs in a child protection matter has been met. Accordingly, the requests for costs by the Respondents, K.D. and P.D., are dismissed.

Released: August 9, 2019

Justice Lise S. Parent