Windsor-Essex Children’s Aid Society v. J.T. and C.T., 2020 ONSC 3436

CITATION: Windsor-Essex Children’s Aid Society v. J.T. and C.T., 2020 ONSC 3436

DIVISIONAL COURT FILE NO.: DC-20-150

COURT FILE NO.: FS-20-20595

DATE: 20200603

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Windsor-Essex Children’s Aid Society

Applicant

– and –

J.T. and C.T.

Respondents

Ronald Burnett, for the Applicant

Cheryl Hodgkin, for the Respondents

HEARD: Written submissions

costs endorsement

KING j.:

[1] The respondents, J.T. and C.T., seek costs with respect to my decision as a single judge of the Divisional Court issued on March 16, 2020. In that decision (2020 ONSC 1633), I dismissed an application by the Windsor-Essex Children’s Aid Society (“WECAS” or the “Society”) for a stay of the order of the Child and Family Services Review Board (“CFSRB”) made orally on January 7, 2020 (with written reasons released on February 3, 2020), pending their application for judicial review.

[2] At issue is whether costs should be awarded against government agencies who are unsuccessful in legal proceedings pursuant to the Family Law Rules, O. Reg 114/99, particularly, if it is determined that there has been no finding of bad faith.

[3] For the reasons that follow, I have determined that it is appropriate to award the successful respondents’ costs, albeit on a partial indemnity basis.

BACKGROUND

[4] J.T. and C.T. had been the foster parents of S.G. (or “the child”) (d.o.b. […], 2015) from October 16, 2016, when she was one year old.

[5] S.G. was the youngest of four children of the same mother. All of the children have been in the care of WECAS for some time.

[6] In May 2019, WECAS made a decision between competing adoption plans respecting S.G. One of the proposed plans was put forward by J.T. and C.T., the respondents in this matter. The other plan was put forward by R.H. and A.H. They had been the foster parents of the child’s half-brother. The plan of J.T. and C.T. was later amended to include the half-sister of S.G.

[7] Following the removal of S.G. from their care on September 17, 2019, J.T. and C.T. filed an application with the CFSRB for review of the adoption decision. The hearing of the review took place in Windsor on December 10, 11, 18, and 19, 2019 and January 2, 2020. On January 7, 2020, the CFSRB issued an oral decision with written reasons to follow. Those written reasons were released on February 3, 2020.

[8] The January 7, 2020 order directed WECAS to return the child to the home of J.T. and C.T. forthwith and no later than January 14, 2020. The order also rescinded WECAS’s adoption decision and directed the child be placed on adoption probation with J.T. and C.T. as soon as she was returned to their home.

[9] On January 14, 2020, WECAS brought a motion requesting the CFSRB’s January 7, 2020 order be stayed pending receipt of the reasons for decision.

[10] There were two prior appearances in this court before the matter came before me on January 24, 2020. At that time, the written reasons of the CFSRB had not been released. Following the release of the written decision on February 3, 2020, the parties appeared before me again on February 25, 2020. As a result of that appearance, it was determined that the parties would make further written submissions pertaining to the written decision of the CFSRB.

[11] On March 16, 2020, I dismissed the application of WECAS to stay the decision of the CFSRB pending the Divisional Court decision on the application for judicial review. In consequence of that decision, I ordered that the child be returned to the respondents no later than March 19, 2020.

[12] In dismissing the application, I concluded that the standard of review to be applied on a judicial review of a decision of the CFSRB was reasonableness. This conclusion was based on the Supreme Court of Canada decision in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190. At para. 47 of Dunsmuir, the Supreme Court stated:

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[13] I also considered the three-stage test from Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 79 (SCC), [1987] 1 S.C.R. 110, as referred to in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 a p. 334, that courts are to apply when considering an application for either a stay or an interlocutory injunction:

First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[14] In addition to taking into consideration uncertainty with respect to whether the WECAS would be able to demonstrate the Board’s decision was unreasonable, I found that J.T. and C.T. and the child would suffer greater irreparable harm if a stay of the Board’s decision was granted.

POSITIONS OF THE PARTIES

i) Respondent Parents

[15] The respondents assert that as the successful party on the application, they should be awarded costs payable on a full recovery basis by WECAS as follows:

Fees $5,750.00

HST $ 747.50

Disbursements $ 153.85

TOTAL $6,651.35

[16] Full recovery costs should be awarded because WECAS did not act in good faith.

[17] It is noted that if costs are awarded on a substantial basis, the total would be $5,026.97. On a partial indemnity basis, the amount is $3,402.60. Both of these amounts are all-inclusive.

[18] While not specifically referencing Family Law Rule 24(1) in their submissions, the respondents seek an award of costs in consequence of being successful on the application. They submit it would not be appropriate for them to be burdened with the costs of this application as they acted in good faith throughout. They were the successful party at the CFSRB. Rather, it was WECAS that did not act in good faith. In reviewing the various factors to be taken into account when determining costs, counsel notes the matter was complicated and of significant importance to the parties. As well, they make a “David and Goliath” analogy, stating that WECAS had unlimited resources to pursue this matter.

[19] Counsel for the respondents provided a costs outline showing that Ms. Zeran (who was called to the Bar in 2019) spent 24.90 hours on the matter at an hourly rate of $200.00. Ms. Hodgkin worked 2.20 hours at an hourly rate of $350.00. She was called in 1993.

ii) Applicant Society

[20] Principally, WECAS relies on the provision of Family Law Rule 24(2) which stands as an exception to the general presumption prescribed in r. 24(1) and provides as follows:

(2) NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY- The presumption does not apply in a child protection case or to a party that is a government agency.

[21] As well, counsel references r. 24(8) which provides that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

[22] On its interpretation of these rules, counsel submits costs should only be awarded against a government agency such as WECAS when the actions of the agency were unreasonable, or it acted in bad faith. In these circumstances, it cannot be said the Society acted unreasonably, or in bad faith.

[23] In support of its position that it did not act unreasonably or in bad faith, the Society relies on paragraph 61 of the March 16, 2020 decision where, after referencing how fortunate S.G. was to have two sets of parental figures looking to care for her into adulthood, I stated (as an Addendum), as follows:

For this reason, I want to emphasize that nothing in this decision is based on any assessment of the parenting skills, dedication or actions of R.H and A.H. They are to be complemented on their efforts. As WECAS has acknowledged, this was a decision between “two highly committed couples” in which “[t]here is no nice answer.”

[24] WECAS also relies on Children’s Aid Society of Hamilton-Wentworth v. R. (S.), 2003 2004 (ON SC), [2003] O.J. No. 1312 (S.C.), 39 R.F.L. (5th) 25. In that matter, the court addressed the issue of costs after a complex child protection trial that resulted in a finding that the child was not in need of protection and should be returned to her mother. The court considered the impact of r. 24(2) of the Family Law Rules. At para. 13, Justice Genesee agreed with the children’s aid society that, “… in the context of child protection proceedings, it would be dangerous to award costs to a party automatically…” The judge was satisfied that the children’s aid society went to trial with an objectively defensible and fair position after conducting a fair and defensible investigation. Accordingly, costs were not awarded on substantive issues on that basis.[^1]

[25] As well, while WECAS acknowledges that this matter was not technically a child protection proceeding, it did involve a government agency (WECAS) following the statutory mandate.

[26] In summary, there should be no award of costs.

ANALYSIS

[27] I start by noting that a judge who deals with a step in a case proceeding under the Family Law Rules shall promptly decide in a summary manner who, if anyone is entitled to costs and, if so, set the amount of costs: see r. 24(10).

[28] The provisions of s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, have application. That section provides as follows:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

Are there any statutory provisions or rules of court that are relevant?

[29] In making this determination, I have considered a number of Family Law Rules that inform this general proposition that it is appropriate for the court to exercise its discretion in favour of the respondents.

[30] More specifically, I have concluded that it is appropriate for the court to exercise its discretion to award costs as prescribed in r. 24(3). Consistent with the provisions of s. 131 of the Courts of Justice Act, that rule provides that the court has discretion to award costs to or against a party whether it is successful or unsuccessful. This is one such instance.

[31] The circumstances of this proceeding inform this decision. After WECAS made the decision to direct that the child reside with R.H. and A.H., the respondents properly exercised their right to challenge that decision before the CFSRB. After a five-day hearing, the CFSRB determined (for a variety of reasons) that it was in the best interests of the child that she be returned to the care of J.T. and C.T. and that the adoption process should commence. Accordingly, WECAS was directed to return the child to the respondents.

[32] As was also their legal right, WECAS decided to pursue a judicial review of the decision of the CFSRB. At that point, the Society had options. They could have returned S.G. to the respondents, where she had resided since she was one year old, pending the application for judicial review. They did not choose that path, however.

[33] Rather, they brought this motion seeking an interim order that the decision of the CFSRB be stayed for the purpose of having the child remain with R.H. and A.H pending the judicial review application. In that effort they were unsuccessful. Their underlying approach was borne out of confidence in the judicial review process. That is, if they were successful on the judicial review, there would be no shuffling of S.G. to the respondents and then back to R.H. and A.H., as the child would already be with those individuals.

[34] For the purposes of this decision, I have concluded the actions of WECAS were not taken in bad faith. They believed their decision in placing S.G. with R.H. and A.H. was in her best interests. While the respondents are understandably frustrated, and perhaps angry, with the actions of WECAS in seeking to remove S.G. from their care and then seek a stay of the CFSRB decision, those differences of opinion do not lead to the conclusion that the actions of WECAS were unreasonable, or made in bad faith.

[35] WECAS made a determination that it was in the best interests of S.G. that she be adopted by R.H. and A.H. over the respondents. This was done because her siblings also resided there. After a full hearing, the CFSRB held otherwise with respect to the best interests of the child.

[36] I have concluded that the decision and over-arching conduct of the Society was made in what it believed were the best interests of S.G., and those actions were not done in bad faith generally, or with malice towards the respondents. In this respect, that is why I referenced the Society had to make a difficult decision between two sets of highly committed couples. This factual milieu underpins my conclusion that the Society did not act in bad faith.

[37] However, although I have made a finding that WECAS did not act in bad faith, I cannot conclude that the Society is insulated from costs consequences by the operation of r. 24(2), r. 24(8) or the jurisprudence submitted.

[38] Following the release of the decision of the CFSRB and the decision of the Society to seek judicial review of that decision, WECAS could have permitted the child to return to the respondents pending the judicial review without in any way compromising their probability of success in Divisional Court. They did not choose that path.

[39] Rather, by seeking to stay the CFSRB decision, WECAS followed a path that left the respondents in a difficult predicament.

[40] The respondents could have consented to this motion to stay even though they were successful at the CFSRB and S.G. had been ordered returned to them. Had they done so, that would have resulted in S.G. continuing to reside elsewhere pending the completion of the judicial review. At the time the application for a stay was filed, it would have been known to the respondents that the hearing of the judicial review would have been months away.[^2] At five years of age, the child would not be with the respondents during this formative and impressionable period of time had they consented to the motion to stay.

[41] Regardless of how the court characterizes the actions of the Society in seeking the stay, it is irrefutable that the actions of J.T. and C.T. in opposing the stay application were understandable, responsible and appropriate. To that extent, they have been put to legal costs arising out a strategic litigation decision by WECAS.

[42] Whether the approach of WECAS was legally supportable is to be decided by the Divisional Court panel that will hear this matter. At present, my task is to assess the expense to which the respondents have been put to on the stay application as juxtaposed with r. 24(2) that states that there is no presumption of costs when the matter involves a government agency such as a children’s aid society.

[43] I agree with the rationale in Children’s Aid Society of Ottawa v. S. and P., 2003 88994 (ON SCDC), [2003] O.J. No. 945, at para. 3, relied on by Justice Genesee at para. 7 of Hamilton- Wentworth as follows:

The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a Children’s Aid Society has a statutory obligation to initiate and pursue proceedings if there is a reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs in considerations.

[44] While this is not strictly speaking, a child-protection case, I have noted that the issue is the possible adoption of S.G. These issues generally arise from what was initially a child-protection issue and the general statutory mandate of a children’s aid society. This cannot be overlooked. Care must be taken to ensure that there is some recognition of this status and the significant and important community functions served by children’s aid societies.

[45] However, recognition of that statutory status alone is not dispositive of the issue. I have concluded that while it is important to recognize the broader societal purposes government agencies provide, r. 24(2) does not act as a prophylactic shielding them against an award

of costs. Rather, the rule simply conveys that success against a government agency should not act as an automatic conduit to a costs award for the successful party.

[46] Rule 24(3) confirms that government agencies are not so insulated. It references the possibility of costs being awarded against government agencies as follows:

(3) COURTS’S DISCRETION- COSTS FOR OR AGAINST GOVERNMENT AGENCY - The court has the discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful.

[47] Rule 24(8) is not helpful to WECAS either. While it speaks to the recovery of costs on a full recovery basis in the event of bad faith, there is no statutory authority that mandates or directs that costs should only be awarded against a government agency where there has been a finding of bad faith.

[48] Having considered all of these rules, I have concluded that while there is no presumption that costs should be awarded against a government agency, particularly in matters of child protection, the court has jurisdiction to make an award of costs in the reasonable exercise of its discretion. This is one such instance.

[49] As set out at para. 52 of Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, the discretion to award costs is subject to the overriding principle of reasonableness. In these circumstances, it is reasonable that the respondents receive costs on a partial indemnity basis.

[50] The respondents were put to the expense of opposing the motion brought by WECAS to stay a decision of the CFSRB in their favour. Had they not successfully opposed the application, S.G. would have been prevented from residing with them for an extended period. After having succeeded before the CFSRB, the respondents should not have to bear the entire costs of the stay application.

[51] I have taken into account the myriad of considerations prescribed in r. 57.01 when awarding costs. I have determined that the time spent by counsel and the hourly rates are fair and reasonable. I have also considered the facts and circumstance of the case as prescribed by the jurisprudence. In reaching this conclusion and reviewing the criteria in this rule, I have noted in particular the expectations of the losing party (0.b)), the complexity of the proceeding (c), and the importance of the issues (particularly to the respondents).

ORDER

[52] Costs are awarded to the respondents by WECAS in the all-inclusive amount of $3,402.60. This amount is payable within 30 days.

George W. King - Justice

Released: June 3, 2020

CITATION: Windsor-Essex Children’s Aid Society v. J.T. and C.T., 2020 ONSC 3436

DIVISIONAL COURT FILE NO.: DC-20-150

COURT FILE NO.: FS-20-20595

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Windsor-Essex Children’s Aid Society

Applicant

– and –

J.T. and C.T.

Respondents

COSTS ENDORSEMENT

King J.

Released: June 3, 2020

[^1]: Parenthetically, it is noted that regarding Justice Genesee found the Society committed procedural errors that resulted in additional expenses before and during trial for the mother. At para. 20, the judge stated that the “… society, like any other litigant, must be censured for these failings.” The mother was entitled to costs for these procedural failings.

[^2]: While the existence of COVID-19 was known at the time the application was heard, the full scope of the impact of the pandemic on Canada was not fully known until after the decision on the application was made on March 16, 2020. As a result, there will likely be an extraordinary timeline for this matter to be heard by the Divisional Court.