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.

(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.

(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 File and Parties

ONTARIO COURT OF JUSTICE

DATE: May 2, 2023 COURT FILE No.: Toronto C6074913

BETWEEN:

Children’s Aid Society of Toronto Applicant,

— AND —

TM/mother AL/father RR/caregiver Respondents

Before Justice Debra Paulseth

Costs Decision

Counsel: Sherri Smolkin................................................................. counsel for the applicant society Paul Mongenais.......................................................... counsel for the respondent/mother A.L./father...................................................................................................... on his own behalf R.R./Caregiver............................................................................................ on her own behalf, Renatta Austin.................................... counsel for the Office of the Children’s Lawyer, legal representative for the child

Paulseth, J.:

Overview

[1] Counsel for mother is seeking costs from the Children’s Aid Society of Toronto (CAS), on a full recovery basis of $12,577, inclusive of HST.

[2] Counsel for mother argues that:

(1) By serving the first motion materials late, the CAS had “set up” his client; this argument was successful in the SCJ and costs were ordered against the CAST in that court.

(2) The CAS mistakenly pled that a parent had died or was unavailable to parent, when the mother was before the domestic court seeking primary residence.

(3) Mother had radically turned her life around since 2018: caring full time for a new baby born in 2021, maintaining employment with the same employer since February 2021, and living in Brantford where she had a second child who now resides with his paternal grandparents.

(4) The society did not need to bring a Protection Application as they had been offered all of the information in 9 affidavits.

(5) The society acted unfairly and unreasonably as mother cooperated fully and no concerns were noted in the weekend visits.

(6) The society did not operate in a timely manner.

(7) Sub-rules 12(4), 24(3), and 24(8) of the Family Law Rules (FLR) apply.

(8) It is not necessary to find bad faith; unfair and unreasonable conduct will support full recovery of costs against the CAS.

[3] Counsel for the society relies on Subrule 24(2) which specifically refers to costs in child protection cases and argues against costs, as follows:

(1) There had been extensive child protection proceedings with respect to this child from birth through until his placement with family in 2014.

(2) Mother was not parenting her second child full time either. That child was the subject of domestic court orders in Brantford that resulted in the child living with paternal relatives and having contact with mother only in the presence of the grandparents.

(3) Mother began the current domestic proceeding as a Motion to Change the custody order arising from the child protection case. When the child’s longtime caregiver passed away suddenly, the child stayed with the caregiver’s family. The child was most comfortable and familiar with that home and his sister also went to that home. He is very attached to that sister and that family. Mother disagreed and sought primary residence of the child. The court asked the society to check into mother’s circumstances since the last order.

(4) After the society filed its protection application, the court preserved the child’s status quo. This “without prejudice” child protection order along with the “temporary without prejudice” domestic order were each appealed. The temporary care and custody motion under the CYFSA was never argued in the OCJ but a temporary agreement was reached.

(5) The society reviewed its file material and met with the child. The society did not have jurisdiction to meet with the mother in Brantford but asked its local counterpart to do so. This was done. Investigations are not conducted by solely reading affidavits.

(6) The society withdrew very early in the proceeding, before a temporary order was made and before a finding in need of protection.

Legal Framework

[4] Subrule 24 (2) (FLR) provides that in a child protection case there is no presumption that the successful party is entitled to a costs order.

[5] The rationale for making child protection cases an exception to the presumptive entitlement to costs rule stems from the fact that a society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection. It should not be dissuaded from the pursuit of its statutory mandate by costs considerations. See: Children’s Aid Society of Ottawa-Carleton v. S., 2003 ONSC 88994, [2003] O.J. No. 945 (SCJ – Divisional Court).

[6] In Children’s Aid Society of Hamilton v. K.L., 2014 ONSC 3679, 2014 O.J. No. 2860 (SCJ-Family Division) the court reviewed the caselaw and set out the following principles:

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

b) 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.

c) 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.

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

e) 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.

f) 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.

g) 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.

[7] A child protection agency should neither be rewarded nor punished by an order for costs, but rather it should be held accountable. See: Children’s Aid Society of Brant v. D.M.C. and J.C., 1997 ONCJ 9575, [1997] O.J. No. 3145 (OCJ).

[8] The lens through which the society’s conduct is viewed is that of the properly informed, reasonable person, considering the society’s conduct and the prejudice caused to the child or parent by that conduct. See: Catholic Children’s Aid Society of Toronto v. S.V., 2000 ONCJ 20004.

[9] One of the objectives of costs is to discourage and sanction inappropriate behaviour by litigants. See: Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.).

[10] Subrule 2 (2) adds an additional purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711; Children’s Aid Society of Halton v. J.S., 2014 ONCJ 522 and Mattina v. Mattina, 2018 ONCA 867.

Analysis

[11] It is very reasonable and not uncommon to serve the local CAS when a final order made pursuant to child protection legislation is being reviewed in a Motion to Change.

[12] The voice of the child report provided by the Office of the Children’s Lawyer (OCL) in the proceedings under the Children’s Law Reform Act was an important precursor to the child protection proceedings.

[13] No motion was actually argued in this child protection proceeding; therefore, no party was actually successful.

[14] Both the history of child protection proceedings and the child’s recent views in the Motion to Change caused the court to have some concern about the mother’s capabilities.

[15] The caregiver who died suddenly was a psychological “parent” to this child. He called her “mom”. She, in fact, was the only full-time mother he knew, as he was very young when placed with her. If a “parent dies”, this is a common subsection to plead, at least until an investigation is completed.

[16] If there was a misstep by the CAS in the SCJ, that court has dealt with it. By agreement, the CAS has paid costs of $2500.

[17] There was no argument on the temporary order on January 3, 2023 in the OCJ. The parties negotiated an access schedule and, in particular, the court asked them to negotiate a time for visits when the society could be available to observe. All available evidence was filed for that day.

[18] Counsel for mother appeared to have a very aggressive litigation strategy, which included both courts going simultaneously, and overwhelming the self-represented parties with court appearances and material and threats of costs. This sort of affidavit war has been frowned upon by case managed family courts since the Ontario Civil Justice Review of 1994. A child focused, conference based approach is promoted by the FLR.

[19] In his Reply Submissions counsel for mother indicates:

“Please note that the Superior Court is also considering a request for costs based on essentially the same submissions.”

[20] This court is grateful to the two institutional litigants, the CAS and OCL, and the self-represented party/caregiver for keeping the child’s best interests at the forefront for as long as they could.

[21] The CAS complied with its statutory obligations.

[22] A reasonable person would not consider the society’s conduct to be unfair or unreasonable. This court finds no unreasonable or unfair conduct by the CAS. The CAS was thorough and fair.

[23] This court certainly finds no bad faith by the CAS, counsel for the child, or the caregiver.

[24] The court dismisses the claim for costs by mother.

Released: May 2, 2023. Signed: Justice Debra Paulseth