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.
DATE: June 16, 2025
Court File No. FO-23-00000007-0000
Ontario Court of Justice, Family Court
IN THE MATTER OF the Child, Youth and Family Services Act, 2017
S.O. 2017, c.14
AND IN THE MATTER OF: A.N and C.N.,
children apparently in need of protection.
B E T W E E N:
THE CHILDREN’S AID SOCIETY OF OXFORD COUNTY
Applicant
-and-
J.M.
J.N.
Respondents
Reasons for Judgment
BEFORE THE HONOURABLE JUSTICE S.E.J. PAULL
On June 16, 2025 at WOODSTOCK, Ontario
Appearances:
- J. Hegney, Counsel for the CAS of Oxford County
- E. Quinto, Counsel for J.M.
- S. Bruce, Counsel for J.N.
- S. Gordon, Counsel for Office of the Children’s Lawyer
Reasons for Judgment
PAULL, J. (Orally):
J.N. (the father) claims partial indemnity costs in the amount of $7,136 as against J.M. (the mother) in this protection proceeding. He claims that he has been entirely successful with respect to the result, that he has acted reasonably throughout this matter, including in his efforts to reach a resolution, that the protection concerns which gave rise to this matter related entirely to J.M., and most importantly that J.M. has behaved unreasonably and in doing so has prolonged this matter.
J.M. seeks no order as to costs and indicates she has taken diligent and reasonable steps to resolve this matter and disputes that costs are appropriate in the circumstances.
The CAS and the OCL take no position on the issue of costs.
This matter was scheduled for trial to commence on this day. However, the parties reached a resolution which had the applicant withdraw its protection application on the basis of the parties’ agreement to resolve the decision-making and parenting time issues in an ongoing Superior Court matter.
The status quo prior to the commencement of the protection application was pursuant to a pre-existing Superior Court order where the parties had a shared residency arrangement. Late last week, the parties consented in that proceeding that the children, now 12 and 14, reside primarily with their father and that he have sole decision-making authority and that J.M. have parenting time one weekend per month and other times as agreed, but all parenting times being subject to the children’s views and preferences. Justice Heeney granted that order on consent on June 12, 2025.
On the basis of this agreement, on the day scheduled for this trial to begin, the applicant sought leave to withdraw the protection application and filed an affidavit in support. The affidavit filed with the notice of withdrawal of the worker, Kaitlin Riley, dated June 12, 2025 was the only affidavit filed for the purpose of the withdrawal and the parties consented to the withdrawal except as it related to costs between the parents.
That affidavit included the following information: The Society became involved in January 2023. The Society concluded at that time that the children were in need of protection due to conflict between the parents, J.M.’s mental health and use of alcohol, and her dysregulated behaviour which resulted. On June 16, 2023, the children were moved from the joint and shared care of the parents and placed in their father’s care where they continue to reside.
The Society commenced the protection application, which was issued January 19, 2023, alleging that the children were in need of protection as a result of J.M.’s ongoing use of alcohol and her mental health issues and the resultant emotional outbursts. On July 4, 2023, the court made an interim order on consent, pursuant to minutes of settlement, placing the children with J.N. on a temporary basis with access by J.M. at the discretion of the Society. No findings of fact have been made with respect to the Society’s allegations about risk of harm to the children. The children have not been found in need of protection.
The applicant made the decision to withdraw the protection application because of various factors:
(a) Firstly, two and a half years have passed since this matter began and the children are older.
(b) The children’s primary residence has remained with their father since that time, and they have continued to articulate their wishes to remain in his primary care to both the Society workers and OCL counsel.
(c) The parties have agreed to final parenting arrangements which acknowledge the children’s wishes regarding primary residence and their parenting time with their mother, and signed minutes of settlement which were filed in the Superior Court and resulted in the final consent order in that proceeding of June 12, 2025.
(d) Finally, the affidavit concludes that the Society takes the position that the children are no longer in need of protection and an order is no longer necessary to protect the children in the future.
On the basis of these factors, the Society sought to withdraw its protection application with the consent of the parties and the OCL, save and except for the issue of costs as between the parents.
Both parents provided various offers to settle and correspondence from over the past several months which outlined their efforts to resolve this matter. J.M. ultimately accepted J.N.’s second offer dated June 9, 2025 on the terms proposed and which became the basis for the Superior Court order and the CAS withdrawal, with the issue of costs being severable. She agreed that the children remain residing primarily with J.N. and that any parenting time she has is subject to the children’s wishes.
With respect to the law, courts have generally required a very high threshold before ordering costs between parents in child protection cases. In CAS of Ottawa v. S.(D.), (2003), O.J. 945 (Ont. Div. Ct.), the court wrote at paragraph 19:
There may be appropriate cases for costs awards as between parents in a child protection case, but entitlement must be based on something more than merely the outcome of the case.
In Family and Children Services v. S.(A.), (2010) 2010 ONSC 1287, O.J. 872, Justice McGee found that as a general rule, parents in a protection proceeding should have no less protection against a claim for costs against them by the other parent than they would have against them in a claim brought by the Society. She wrote the following at paragraph 20:
In my view costs as between parents in a protection proceeding ought not to have a different treatment. The subject matter of the application, the governing statute and the jurisprudence all speak to the same overriding purpose: The care and protection of children. The fear of a cost sanction ought not to impede a vigorous presentation of any participant’s case provided that it is acting in good faith and in a manner not excessively unreasonable or disproportionate to the issues involved. The legislature has specifically recognized this approach by eliminating the presumptive entitlement to costs to a successful party.
In Children’s Aid of Toronto v. S.T., (2018) ONCJ 573, Justice Ellen Murray wrote that costs should only be ordered between parents in a child protection case if a parent has exhibited extreme unreasonable conduct. She set out examples of extreme unreasonable conduct as being unreasonable behaviour that harms the children. A parent who heightens and extends the conflict, a parent who repeatedly disobeys court orders, or who misleads the court, and the parent found to be acting in bad faith. However, she observed that even highly unreasonable behaviour by a parent may not result in an award of costs if the behaviour originates from mental illness, not just stubborn rigidity.
Other courts have been willing to order costs to be paid between parents in child protection cases where the parent has acted in bad faith, or in an excessively unreasonable or disproportionate manner, has advanced meritless arguments or has failed to genuinely attempt to resolve matters.
In CAS York Region v. S.(A.), supra, Justice McGee found that father exhibited excessive unreasonable and disproportionate behaviour and ordered him to pay costs of $160,000 to the mother.
In CAS Halton Region v. J.S., (2014) ONCJ 38, Justice Zisman wrote that while parents should be entitled to vigorously oppose and defend themselves in the child protection proceeding without fear of cost sanctions, they 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. In that case the father was ordered to pay mother costs in that proceeding of $18,000.
In Children’s Aid Society of Toronto v. C.B., (2020) ONCJ 369, the court distinguished these cases and ordered $900 costs against the parent who breached an order to give the other parent access. The case involved a motion brought for enforcement. It found that the legal threshold of excessive, unreasonable behaviour was too high when dealing with breach of a court order—unreasonable behaviour in that circumstance was sufficient.
In Catholic Children Aid Society of Toronto v. C.P.I., (2023) ONCJ 293, the court followed C.B. and ordered $1,000 costs against a parent who unreasonably required the other parent to bring a travel consent motion.
In CAS of Peel v. A.W., (2025) ONCJ 130, the court declined to order costs between parents. The mother was disruptive during the trial and did not follow timelines. However, the court noted this was likely the result of an undiagnosed mental health problem. The mother did not act in bad faith. The court also noted that there could be nothing more stressful in our system of justice to a person than facing the prospect of having your child taken from your care or not returned to your care after having been taken previously.
With respect to costs, there are other legal considerations. Pursuant to Rule 24(3) of the Rules of Civil Procedure there is a presumption that the successful party is entitled to costs. However, under Rule 24(5), this presumption does not apply to child protection cases.
As the Court of Appeal in Beaver v. Hill, (2018) ONCA 840 noted, costs awards are discretionary. The two important principles in exercising discretion are reasonableness and proportionality.
An award of costs is subject to the facts outlined in Rule 24 including 24(14) and sub-rule 24(7) pertaining to unreasonable conduct, sub-rule 24(10) pertaining to bad faith, sub-rule 24(12) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party.
In making this decision the court has considered the factors set out in subrule 24(14) of the rules which reads as follows:
24 (14) In setting the amount of costs, the court shall consider,
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.
Section 24(8) provides criteria for determining the reasonableness of the successful party’s behaviour which is a factor to be considered under 24(14)(a)(i).
Family law litigants are also responsible and accountable for the positions they take in litigation. Heuss v. Surkos, 2004 CarswellOnt 3317, 2004 ONCJ 141.
The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of the justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy. Weber v. Weber, 2020 ONSC 6855.
For the following reasons I am not satisfied that J.N. has established entitlement to costs. To be clear, he is only seeking partial indemnity of those costs he incurred with respect to this proceeding and not those which may have resulted from the making of the final order in the Superior Court of Justice.
I accept that J.N. has behaved reasonably throughout this matter, including in his efforts to ultimately resolve this matter, but these are not the only considerations. Neither does entitlement flow only from the result of a protection proceeding despite the fact that he has achieved the result that he offered.
As the court noted in CAS Ottawa v. S.(D.), (2003), O.J. 945,
There may be appropriate cases for a costs award between parents in a protection proceeding, but entitlement must be on something more than merely the outcome of the case.
There is no presumption of costs to a successful party in a protection proceeding.
Until January 2025, J.M. was not prepared to concede primary residence of the children to J.N. In the circumstances of the children’s ages and strongly held views and preferences as reported by OCL counsel throughout this matter, this was not a reasonable position. However, she has behaved reasonably in her efforts since January 2025 and made genuine efforts through counsel to resolve this matter as outlined in the correspondence and the offers to settle, and in ultimately accepting an offer made by J.N.
The cases relied on by J.N. involve matters where findings were made, supervision orders granted or a s.102(1) orders made (which also require a finding), or following contested motions for enforcement, or following a contested hearing or trial. These are distinguishable from the circumstances of this case.
I would note the following:
- No findings of fact have been made in this proceeding.
- The interim order placing the children in J.N.’s care was made on consent.
- The final order resolving the decision-making and parenting time issues was made on consent.
- Despite her position of wanting to return to the prior status quo, J.M. ultimately resolved the matter pursuant to the children’s clear views and preferences which was reasonable in the circumstances and avoided the need for a trial.
- As this is a protection proceeding, she was entitled to challenge the Society’s position that her children were in need of protection. No findings in need of protection have been made and the Society’s current position is that the children are no longer in need of protection. The protection application was withdrawn on consent without the need for a trial.
- All substantive orders made throughout this matter, including the final disposition, were made on consent.
- It has not been established that J.M. breached an order of this court and no motions for enforcement were brought. She made genuine efforts, as did J.N., to resolve this matter in recent months.
- She did not unnecessarily prolong this matter. CAS counsel conceded that some of the delay in getting this matter to trial was the result of CAS counsel’s availability and some challenges with obtaining third-party records and addressing the issues surrounding the children’s statements.
- While it may not have been reasonable for her to maintain her position of returning to the prior status quo for as long as she did, it is not behaviour which amounted to bad faith. Neither does it amount to behaviour which is “excessively unreasonable or disproportionate” when the entirety of the circumstances are considered, particularly the manner in which this matter was ultimately resolved.
There is no presumption of costs and the threshold for costs between parents in a child protection proceeding is high. Considering all these factors, entitlement has not been established.
There shall be no order as to costs.
...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED