Court File and Parties

Date: July 23, 2024 Court File No.: C129/22 Ontario Court of Justice

B E T W E E N :

CHILD AND FAMILY SERVICES OF GRAND ERIE Applicant

— and —

VT, EH, DT, AT, AH and BH Respondents

Before: Justice K.A. Baker

Submissions on Costs Endorsement released: July 23, 2024

Counsel: Nolan Wilson, counsel for Respondents, DT and AT Birkin Culp, counsel for Respondents, AH and BH

BAKER, J. :

Endorsement on Costs

[1] This is my endorsement on the issue of costs with respect to the trial of this matter.

[2] The trial was held to adjudicate the Child Protection Application commenced by the Applicant agency. The agency sought a deemed custody Order pursuant to s. 102 of the Child, Youth and Family Services Act with respect to the child, MG, born [...], 2021. Somewhat unusually, the agency was indifferent to which set of grandparents – paternal or maternal – was granted custody. The result of this situation was that the trial was, from a practical point of view, a dispute about custody as between the paternal and maternal grandparents.

[3] Ultimately, the court determined that the child would be placed in the deemed custody of the paternal grandparents, A and BH. The issue of costs was left to be determined on the basis of written submissions.

[4] The H’s seek an award of costs against the maternal grandparents, D and AT. In particular, they seek full indemnification of all costs expended in the amount of $32,666.03.

[5] The T’s say that no costs to any party is the appropriate order.

[6] Neither the Applicant agency nor the parents have sought costs nor filed written submissions.

Applicable Statutory and Legal Principles

[7] Subrule 24(2) of the Family Law Rules states that the presumption that a successful party is presumed to be entitled to costs does not apply to the successful party in child protection proceedings.

[8] Most of the jurisprudence on the issue of when costs are payable in a child protection proceeding, other than when costs are sought against the Society, relate to claims as between parents. In Children’s Aid Society of Ottawa-Carleton, v. S., the Divisional Court considered the issue of whether costs could be ordered in favour of one parent against the other in a child protection appeal. The court delineated the rationale for insulating agencies from costs in most circumstances and distinguished it from a claim as between parents, saying,

“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.”

[9] The court went on to say, “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.”

[10] In Children’s Aid Society of Ottawa v. K., 2005 O.J. No 2573, (ON SC), Justice Linhares de Sousa considered the claim for costs by a father against the mother in a child protection proceeding. The court noted that mother had behaved in an obstructionist and uncooperative manner, had been disrespectful of court orders and disregarded them if she had not agreed with them. The mother was ordered to pay costs, based on a finding that her conduct was unreasonable and either constituted bad faith or bordered on it.

[11] In Children’s Aid Society of Simcoe County v. C.S., Justice Olah considered a claim for costs by one parent against the other in the context of a contempt motion in a child protection proceeding. In awarding costs against the father, at paragraph 9, the court held:

“…for one parent to collect costs against the other in a child protection case, there must be some degree of unreasonableness or meritless argument, or some other exceptional element present.”

[12] In Children’s Aid Society of Halton Region v. J.S. 2014 ONCJ 38, Justice Zisman summarized the jurisprudence in relation to cost claims against parents and concluded,

“The case law therefore supports the proposition that parents should be entitled to vigorously oppose and defend themselves in a child protection proceeding without the fear of cost sanctions. However, 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.”

[13] Justice Zisman ultimately found that the father’s conduct was unreasonable, unduly prolonged the proceedings and was entirely disproportionate to the relief sought, which significantly increased the mother’s costs. She found that an award of costs was appropriate to achieve the purposes of costs as articulated by the Ontario Court of Appeal in Serra v. Serra 2009 ONCA 395. In particular, a costs order was required to sanction and discourage some of the father’s conduct.

[14] Finally, in L. (R) v. Children’s Aid Society of Niagara Region (2003), O.J. No 722 (Ont.C.A.), the Ontario Court of Appeal discussed costs in a child protection proceeding. It noted that it is not the norm for costs to be awarded merely because the applicant was unsuccessful. It went on to say that where unsuccessful parties are motivated by the best interests of the children, a “no costs” award may be appropriate.

Analysis

[15] The rationale for generally insulating parents from costs consequences in child protection cases has limited applicability in this case. By the point of trial, this was not a situation of a parent defending themselves against state intrusion into their family. The parents had conceded that they were not in a position to provide primary care of the child. The issue for trial was much closer to a situation of a domestic family law dispute between the respective sets of grandparents.

[16] I accept that each set of grandparents was motivated by their genuine belief that theirs was the superior plan for the child. By the time of trial, M was not quite three years of age. He had been in the care of the maternal grandparents since he was four months of age. There was a legitimate case to make that a disruption to this entrenched status quo would be contrary to his best interests.

[17] The paternal grandparents also had a legitimate case to make that their plan was more likely to meet M’s best interests in the long run. While the paternal grandparents were ultimately successful, there was certainly a genuine issue requiring the trial.

[18] That remained the case despite the fact that the agency, the parents and the maternal grandparents all signed minutes of settlement. Those minutes contemplated placement with the maternal grandparents. Ultimately, that plan was not found to be in M’s best interests.

[19] In deciding to pursue their respective placement proposals, both sets of grandparents acted reasonably.

[20] Had the T’s simply focused on putting their best case before the court on this key issue, the issue of costs would probably not have arisen. But some of their decisions and actions over the course of the proceeding, both leading up to and during the trial, were problematic.

[21] As noted in the trial judgment, Mrs. T had demonstrated a propensity to engage in arbitrary, high-handed and impulsive decisions that effected M’s time with other family members. In the spring of 2023, once the H’s advanced their competing plan for M’s care, Mrs. T became, “outright obstructive to their contact with M”. She retracted consent to a Mother’s Day visit. She refused to allow the previously scheduled visits over the summer of 2023. No meaningful explanation for refusing the visits was provided.

[22] As found in the trial judgment, there are only two logical explanations for this action. One would be retaliation for advancing a competing plan. The other would be to gain strategic advantage. Neither reflected well on the T’s decisions.

[23] This pattern continued after the temporary Order of August 24, 2023 was made, awarding the H’s access with M. Following this Order, the T’s adopted a unilateral approach to the interpretation of the Order. The Order was clear in providing the H’s with three stipulated dates of visits, proceeding to visits, “every fourth weekend”, from Friday until Monday. On the very first “fourth” weekend following the stipulated dates, the T’s refused to produce M for his visit. They insisted that the Order should be interpreted in such a fashion that the H’s’ visits would occur on the fourth weekend of each month. This was an unreasonable approach to the interpretation of the Order.

[24] The H’s also had a stipulated Christmas visit between December 27-31, 2023. The T’s refused to produce M, saying he was ill. No medical note was ever produced. Neither was a make up visit offered. Mrs. T’s ‘explanations’ for these two facts were expressly rejected by the court.

[25] Mrs. T was also found to have made somewhat hyperbolic assertions at any time that she faced opposition to her goals. By way of example, Mrs. T accused the society worker of lying on so many occasions that the worker actually lost count.

[26] Both of these behaviours had the effect of unduly prolonging the trial. The agency had to adduce evidence to counter Mrs. T’s many allegations, as did the H’s. Additional evidence had to be devoted to the instances of the T’s imposing their will on what weekend M was to spend with the H’s.

[27] This behavior prolonged the trial for another reason. The trial initially concluded on April 5, 2024, with judgment reserved and to be released in writing. Precisely a week later, the T’s again refused to release M for his “fourth weekend” with the H’s. This was after the agency and the court had expressly pointed out to the T’s the clear requirements of the Order. This event precipitated the re-opening of the trial on April 19, 2024. It also resulted in an Order specifying the next few weekend visit dates.

[28] The court found that the only conclusion available on the evidence was that the T’s had decided that they would not follow the clear terms of the Order. Rather they had decided that they would dictate the weekend that the H’s spend with M.

[29] This was not the only occasion when Mrs. T in particular breached orders of the court. On November 30, 2023, in a flagrant breach of three different court orders, Mrs. T drove the mother to Belleville with the child in the car.

[30] All of this behavior was unreasonable. The T’s conduct in seeking to dictate the H’s time with M was particularly egregious, continuing to do so even after an Order was granted. This is precisely the sort of conduct that should be discouraged and sanctioned.

[31] While it is not appropriate to visit the H’s entire costs of the trial upon the T’s, it is appropriate to award some costs. Such an award will have the effect not only of sanctioning the unreasonable behaviour, but also to partially indemnify the successful litigants for the cost of unnecessary litigation time.

[32] The need for the trial date of April 19, 2024 was exclusively the result of the T’s unreasonable behaviour. The trial prior to that date required five days. I am satisfied that a rough approximation of the amount of time incurred dealing with the unreasonable aspects of the T’s conduct would be one hour for each of the five days. Obviously, counsel would also have preparation time for trial devoted to addressing the issues arising from the T’s conduct.

[33] On balance, I find that a quantum of $3,000 in costs meets the purposes of an award of costs in these circumstances and is proportionate to the complexity of the matter.

[34] For these reasons:

1. The Respondents D and AT shall pay costs to B and AH in the fixed sum of $3,000.

Dated at Brantford, Ontario this 23rd day of July, 2024

The Honourable Justice K.A. Baker