CITATION: Children’s Aid Society of the Region of Peel v. L.M., 2021 ONSC 1699
DIVISIONAL COURT FILE NO.: DC-19-98
DATE: 20210331
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Gordon, Lederer and Favreau JJ
BETWEEN:
The Children’s Aid Society of the Region of Peel
Appellant
– and –
L.M.
Respondent
Laura Shaw, for the Appellant
Andrew Burgess and Jessica Gagné, for the Respondent
Andy Jin, for the Attorney-General for Ontario
HEARD at Brampton (by video-conference): October 28, 2020
Favreau J. (Lederer J. concurring):
Overview
[1] The Children’s Aid Society of the Region of Peel (the “Society”) appeals a costs order made against it by Price J. on November 29, 2018. The motion judge ordered the Society to pay $12,482.49 in costs to the respondent in the context of a motion made by the respondent for state funding for an appeal. The motion judge found that costs against the Society were justified because the Society acted unreasonably in opposing the respondent’s motion for state funding. The motion judge also awarded part of the costs on an elevated scale because the Society did not accept an offer to settle made by the respondent.
[2] The Society argues that the motion judge erred in finding that it had opposed the motion, in finding that the Society acted unreasonably and in giving effect to the offer to settle. The Attorney General initially supported the Society on the appeal but ultimately withdrew its factum and took no position on the appeal.
[3] For the reasons below, the appeal is granted.
Background
[4] On November 15, 2017, the Society brought a motion for summary judgement before Dunn J. of the Ontario Court of Justice for an order placing the respondent’s three children in extended Society Care. On January 30, 2018, Dunn J. granted the motion, and made an order placing the children in extended Society Care without any right of access by the respondent.
[5] The respondent commenced an appeal of Dunn J.’s order. The respondent sought legal aid funding for the appeal, which was denied.
[6] The respondent then brought a motion for state funding. The respondents on the motion were the Ministry of the Attorney General, Legal Aid Ontario and the Society.
[7] In advance of the motion, the respondent’s lawyer served an offer to settle.
[8] The motion for state funding proceeded before the motion judge on May 31, 2018. Counsel for the respondent, the Attorney General and the Society appeared on the hearing. Counsel for the Attorney General advised that her client took no position on the motion. There was a discussion between the motion judge and counsel for the Society reviewed in further detail below over what position, if any, the Society took on the motion. Following this exchange, counsel for the respondent reviewed the grounds on which the appeal was brought. Counsel for the Society then made an argument that there was “no merit” to the appeal.
[9] At the conclusion of the hearing, the motion judge reserved his decision and sought submissions on the costs of the motion. After some discussion, he indicated that costs submissions were to be made in writing after the release of the decision on the merits.
[10] On June 11, 2018, the motion judge released his decision awarding state funding to the respondent.
[11] After receiving written submissions on costs, the motion judge released his costs decision on November 29, 2018. He awarded costs against the Society in the amount of $12,482.49. In his decision, he found that the Society acted unreasonably by opposing the motion for state funding. In addition, he found that costs should be awarded on a substantial indemnity scale from May 17, 2018 forward due to the offer to settle made by the respondent.
[12] The Divisional Court granted leave to appeal from the motion judge’s costs order on October 9, 2019.
Standard of review
[13] The standard of review on an issue of costs is high. The costs award will only be set aside if the motion judge made an error in principle or if the costs award is plainly wrong: Goldentuler v. Mercedes-Benz Canada Inc., 2014 ONCA 361, at para. 6.
Analysis
[14] The Society argues that the motion judge made the following errors in his costs decision:
a. He erred in making a finding that the Society opposed the motion;
b. He erred in finding that the Society’s position on the motion was unreasonable; and
c. He erred in taking an offer to settle into consideration in awarding increased costs from the date of the offer.
[15] As with all issues that impact or concern the protection of children, their interest is the underlying concern. The court must be careful before doing anything that would unreasonably qualify, impair, trench on or impede decisions being made by Children’s Aid Societies in furtherance of their responsibilities to protect children. With this overarching principle in mind, while I do not find that the motion judge made a factual error in finding that the Society opposed the motion, I find that his decision to award costs against the Society on the basis of the position taken on the motion and the offer to settle was both wrong in principle and clearly wrong.
Issue 1 – the motion judge did not err in finding that the Society opposed the motion
[16] In New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, the Supreme Court established a four part test for determining whether to order state funding in the context of a child protection case. To receive state funding, the applicant must show that 1) the applicant’s s. 7 Charter rights are engaged, 2) the applicant could not receive a fair hearing without counsel, 3) the applicant applied for legal aid and exhausted all avenues for obtaining legal assistance, and 4) the applicant cannot afford a lawyer.
[17] In Children’s Aid Society of Toronto v. Linda Guest, unreported (2014), the Superior Court held that, in the context of an appeal from a child protection order, the court should also consider the merits of the appeal. The merits test is not a high bar and only requires a finding that the appeal “has at least some chance of success or some basic merit”. The rationale for considering the merits of an appeal includes concerns over putting an expeditious end to child protection proceedings to allow adoptions to go forward and managing the scarce resources available in the child protection context. Providing state funding for appeals that have no chance of success does not serve the interests of the children involved or of other children waiting for their cases to be adjudicated.
[18] On the motion for state funding in this case, there was no dispute between the parties that the motion judge was to apply the four-part test plus the merits test in deciding whether to grant the motion.
[19] The motion judge’s award of costs against the Society was premised on his factual finding that the Society took the position that the appeal had no merit. The Society argues that he made an error of fact on this issue. Specifically, the Society argues that the only reason the Society took a position on the merits is because the motion judge required the Society to do so. Once the Society was required to take a position, it would have been unreasonable or inappropriate for the Society to take the position that the appeal had merit as this would have been prejudicial to its position on the appeal.
[20] The transcript from the hearing before the motion judge does not support the Society’s position that it only took a position on the merits because its lawyer was compelled to do so by the motion judge at the hearing. While the transcript from the hearing makes clear that the motion judge had difficulty accepting the Society’s submission that it took no position on the first four parts of the test for state funding, it is not possible to conclude that the Society was required by the motion judge to take a position on the merits.
[21] A review of the transcript does not support the Society’s assertion that its initial position was that it took no position on the motion, including on the merits. On the contrary, the exchanges between counsel for the Society and the motion judge strongly suggest that the Society took issue with the merits of the appeal from the outset:
THE COURT: … so let me just ask counsel for the Society. Is there any dispute that the four parts of the test have been met and that the only issue is the merit?
SOCIETY COUNSEL: The Society is not taking a position, Your Honour, with respect to the four part test.
SOCIETY COUNSEL: We’re not taking a position.
THE COURT: You’re not, what do you mean, you’re not…
SOCIETY COUNSEL: With respect to…
THE COURT: …taking a …
SOCIETY COUNSEL: …the four part test.
THE COURT: Well….
SOCIETY COUNSEL: We’re not taking a position on whether it has been met or not. […]
THE COURT: I, I don’t understand, you’re not taking a position? This is an argument of a motion.
SOCIETY COUNSEL: Right. I would need to obtain instructions from my client.
THE COURT: Okay, I’ll stand it down for the purpose. […]
[22] Following the recess, the motion judge and the Society counsel had the following exchange:
SOCIETY COUNSEL: Yes, Your Honour. So the Society would take no issue with the appellant’s position that she’s met the task [sic], that being her section 7 rights are engaged. That she would possibly not receive a fair hearing without counsel during the appeal due to the seriousness of the interest at stake, the complexity of the proceedings and the capacities of the parents. […]
THE COURT: So does the Society concede that the four part test is met and that the only issue on this motion, is the merits of the appeal?
SOCIETY COUNSEL: Yes, I believe I just stated on the record that we take no issue with the four parts.
THE COURT: Well, I, I don’t want – I don’t like the wording we take no issue, I mean, I, I could infer from that…
THE COURT: …that you acknowledge that the four part test is met. And that the only issue on the motion is the merits of the appeal.
SOCIETY COUNSEL: Yes, if you put is that way, Your Honour…
THE COURT: Yes.
THE COURT: Okay.
SOCIETY COUNSEL: The Society does acknowledge.
THE COURT: All right, thank you. All right, back to the merits.
[23] After this exchange, counsel for the respondent made arguments about the merits of the appeal. She reviewed the various grounds on which she intended to bring the appeal on her client’s behalf.
[24] Once the respondent’s arguments on the merits were completed, counsel for the Society made arguments on the merits of the appeal. Her submissions started with the following exchange with the motion judge:
SOCIETY COUNSEL: Well, Your Honour, I might do [sic], but the Society’s position that this appeal has no merit.
THE COURT: The appeal has – oh, I see.
SOCIETY COUNSEL: No merit.
THE COURT: The appeal has no merit and therefore, the motion has no merit?
[Empashis added]
[25] Based on a review of the transcript above, it is clear that the Society took a position on the merits of the motion by taking the position that there was no merit to the appeal. It is also not possible to conclude, as argued by the Society, that the only reason counsel for the Society took a position on the motion is that she was forced to do so by the motion judge. From the transcript, it is evident that she was required to take a position on the four part test but it is also evident that she did not start off saying that the Society took no position on the merits. On the contrary, from the initial exchange, it is evident that she drew a distinction between the four part test and the merits.
[26] Even if the Society was correct in its view that it was forced to take a position on the merits, I do not agree that it would have been prejudicial to concede that there was merit to the appeal for the purpose of the motion for state funding. As reviewed above, the bar is relatively low on the merits test. It was open to counsel for the Society to take the position that, for the purpose of the motion for state funding, the Society accepted that there was merit to the appeal. This does not mean that the Society acted unreasonably, which is a different issue, but I do not accept that, if the Society was forced to take a position, the only position it could take was that there was “no merit” to the appeal.
[27] Therefore, the motion judge did not make an error in principle nor was he clearly wrong when he found that the Society opposed the motion on the basis that the appeal had no merit.
Issue 2 – the motion judge erred in his application of the test for awarding costs against the Society
[28] The Society argues that the motion judge erred in finding that this was an appropriate case for awarding costs against a child protection agency. I agree.
[29] Rule 24(2) of the Family Law Rules provides that the presumption that a successful party to litigation is entitled to costs does not apply in the context of a child protection case. However, this does not mean that a child protection agency, such as the Society in this case, is immune from having to pay costs. As correctly stated by the motion judge:
[T]he 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. 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 an unfair and indefensible manner. A society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it difficult to weigh and balance the evidence and predict the outcome. That said, the society is not exempt from costs, which may be imposed on it where it has acted unreasonably. If a society acts unreasonably in the conduct of its litigation, it should enjoy no special protection as to costs.
[30] After stating the correct legal test for determining whether a costs award should be made against the Society, the motion judge went on to find that the Society acted unreasonably in opposing the motion. The motion judge found that the Society “has not satisfied the Court that it served the objective of access to justice for it to oppose the motion” and that “a costs order against it will serve the objective of preserving access to justice by sanctioning its unreasonable conduct and encouraging settlement of such motions in the future”.
[31] In my view, while the motion judge articulated the correct legal principles, his finding that the Society acted unreasonably is clearly wrong.
[32] The motion judge gave a number of rationales for his finding that the Society acted unreasonably. Essentially, he based his finding on two considerations, namely 1) that the Society acted unreasonably in failing to accept an offer to settle made by the respondent, and 2) that the Society acted unreasonably in taking a position on the merits of the appeal when it was “patently clear” that the appeal had merit and that the appeal engaged the respondent’s Charter rights. In my view, it was an error for the motion judge to consider the offer to settle. In addition, the fact that the Society took a position on the merits of the appeal was insufficient to ground a finding that the Society acted unreasonably on the motion.
[33] In his decision, the motion judge made an explicit finding that it was unreasonable for the Society not to accept the respondent’s offer to settle. The respondent’s offer was that the motion would proceed on consent. However, the issue of state funding for child protection proceedings is not one that the Society can resolve. The Society does not pay the legal fees. These are paid for by the state through Legal Aid Ontario or pursuant to an order made against the state in the context of a motion for state funding. In this case, the state did not oppose the motion, but the court was still required to make a ruling on whether state funding was warranted. At most, if the Society had conceded that the motion had merit, this may have shortened the argument on the motion, but the respondent would still have had to demonstrate that the appeal had merit before the court could make an order for state funding. It was therefore an error in principle for the motion judge to find that the Society acted unreasonably by not accepting the respondent’s offer to settle.
[34] Besides finding that it was unreasonable for the Society not to accept the respondent’s offer to settle, the motion judge found that it was unreasonable for the Society to take a position on the merits of the appeal when, in his view, the appeal was “patently” meritorious. In Guest, referred to above, the Superior Court provided a rationale for adding a merits test to the determination of circumstances in which public funding should be made available in the context of child protection appeals. As reviewed above, the rationale includes consideration that child protection cases should be resolved expeditiously and that there are limited resources available for such cases. Therefore, an assessment of the merits of the appeal is a legitimate and important aspect of the inquiry into whether state funding should be made available for a child protection appeal. It goes without saying that the Society is in a better position to address the merits of an appeal than the state on a motion for state funding. The court may disagree with the position taken by the Society. The Court may even find that the Society took a misguided position or too stringent an approach to the merits test. However, at most, this amounts to an error of judgment. Parsing the reasonableness of the Society’s position on the issue of merits for the purpose of addressing the issue of costs in my view is wrong in principle.
[35] In Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679, at para. 14, the Superior Court stated that “[i]n 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”. In this case, while the motion for state funding was procedural in nature, taking a position on the merits of the appeal falls within the Society’s mandate given the rationale for including a merits component to the test for state funding on an appeal. This is not a case, such as some of the cases relied on by the respondent, where the Society withheld relevant documents or was slow to disclose relevant information. Taking a position on the merits, even an overly stringent position, is consistent with the Society’s statutory role of protecting children.
[36] Looked at in isolation or in combination, the factors that led the motion judge in this case to find that the Society acted unreasonably did not support his finding. He should not have taken the offer to settle into consideration. In addition, all motions for state funding engage issues of access to justice and section 7 Charter rights as well as requiring an assessment of the merits of the appeal. Again, it may have been an error in judgment for the Society to take the position that this appeal had no merit given the low bar for the merits test. However, taking an ill-advised or overly stringent position on a legitimate legal issue cannot be sufficient to ground a costs order against the Society. Something more is required. There was no basis in this case for finding that the Society’s conduct was unreasonable or unfair, and the motion judge’s decision was therefore clearly wrong.
[37] To award costs against the Society in a context such as this one compels the Society to consider the risk of costs when making a judgment on whether to take a position on the merits of a motion for state funding. Access to justice, a principle relied on by the judge, needs to be considered in the context of its impact on the children, not just the respondent.
Conclusion
[38] For the reasons above, the appeal is granted and the motion judge’s costs award against the Society is set aside.
[39] No costs are awarded on the appeal.
Favreau J.
I agree _______________________________
Lederer J.
GORDON J. (Dissenting):
[40] Section 131(1) of the Courts of Justice Act R.S.O. 1990, Chap. C. 43, provides that the costs of and incidental to 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. A costs award made by the court will only be set aside if there has been an error in principle or if the award is plainly wrong.
[41] A child protection agency, such as the Children’s Aid Society in this case, is not immune from costs. Although, as pointed out by the judge, such an agency should not be sanctioned through costs for an error in judgment or in cases where the nature of the case makes it difficult to weigh and balance the evidence and predict the outcome, if the agency acts unreasonably in the conduct of its litigation it should enjoy no special protection as to costs.
[42] In this case, the Society apprehended the Respondent’s children. On its motion for summary judgment the court determined that the children would be removed from the Respondent’s care on a permanent basis and she would have no right of access. The effect of the order is that she would not be allowed to see her children and her children would not be allowed to see her. There are few more drastic orders made by a court.
[43] The Respondent appealed the summary judgment decision and brought a motion asking that the Province be required to fund counsel to represent her on the appeal.
[44] Whether or not the motion was granted was of little consequence to the agency. It would not be ordered to fund counsel for the mother. If the relief was not granted there is nothing to suggest the appeal would not have proceeded in any event. And yet it contested the motion and did so by arguing the appeal was without merit. The motions judge, in his discretion, found it was unreasonable for the Society to have done so. One may agree or disagree with that decision, but it is not plainly wrong.
[45] Rule 24(5) provides that in determining whether a party has behaved unreasonably or reasonably the court shall examine any offer the party withdrew or failed to accept. In this instance the Respondent had served an offer to have the motion proceed on consent. Although I acknowledge this motion was not one that could proceed without the court exercising its discretion to grant the relief, the essence of the offer was that the motion be put before the court with all parties agreeing that the test for relief was met. The Society determined it would not do so when it clearly ought to have. In my view the offer was properly considered by the motion judge in determining the reasonableness of the Society’s behavior.
[46] The motion judge also determined the Society to have been unreasonable because it was patently clear that the test for merit had been met. He was right. The merit test requires a finding that the appeal has at least some chance of success or some basic merit. Another way to say it might be that the appeal must not be entirely meritless. However it is termed, it was obvious the mother’s appeal had some merit. Indeed she was eventually successful before the Court of Appeal which itself granted costs against the Society.
[47] In brief, the Society elected to take a contrary position on a motion of obvious importance to the Respondent and in which the relief sought would have no direct impact on it or its position in the main proceeding. It did so notwithstanding it being obvious the relief would be granted and in the face of an offer to settle that invited it to have the materials put before the court without contest. As I indicated above, one may or may not agree with the motion judge, but it cannot be said that he was plainly wrong.
[48] That said, it is my view that the motion judge was plainly wrong in the amount awarded. For the relief to be granted the motion had to be brought and an appearance before the court was required. The actions of the Society resulted in additional preparation time and additional time for argument, but otherwise did not increase the costs of the motion. Accordingly, I would reduce the amount of the award to $2,500.00.
Gordon J.
Released: March 31, 2021
CITATION: Children’s Aid Society of the Region of Peel v. L.M., 2021 ONSC 1699
DIVISIONAL COURT FILE NO.: DC-19-98
DATE: 20210331
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Gordon, Lederer and Favreau JJ
BETWEEN:
The Children’s Aid Society of the Region of Peel
Appellant
– and –
L.M.
Respondent
REASONS FOR JUDGMENT
LEDERER, FAVREAU JJ. and
GORDON J. (Dissenting)
RELEASED: March 31, 2021