ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: AP-32-11
DATE: 20120301

BETWEEN:

The Children’s Aid Society of the Districts of Sudbury and Manitoulin Appellant – and – L.N., V.M. and D.M. Respondents

Dawn V. Dubois, for the Appellant

Lance Carey Talbot, for L.N.
Gerald Brouillette, for V.M.
George H. Fournier, for D.M.

HEARD: In reply to written submissions

DECISION ON COSTS

R, D. GORDON J.:

[ 1 ] On November 10, 2011 I released my decision dismissing the appeal filed by the CAS. I invited the parties to make written submissions with respect to costs in the event no agreement could be reached. I have received written submissions on behalf of the CAS and Ms. N.. Ms. N. has requested costs on a full recovery basis. The CAS has submitted that there should be no order as to costs.

Applicable Rules and Legislation

[ 2 ] The Family Law Rules provide limited guidance in the assessment of costs awards in child protection cases. Although Rule 24(1) provides for the presumption that a successful party is entitled to the costs of an appeal, Rule 24(2) specifically provides that the presumption does not apply in child protection cases. As a result, Ms. N.’s success on the appeal is not sufficient on its own to warrant an order for costs. Her entitlement must be based on something more than the outcome of the appeal alone. Unfortunately, Rule 24 does not go on to set out the criteria upon which such a costs determination is to be made.

[ 3 ] Interestingly, Rule 24(4) provides that where Rule 24(1) applies, a successful party may be deprived of the presumptive entitlement to costs if he or she has behaved unreasonably and may even be ordered to pay the costs of the unsuccessful party. It occurs to me that if the reasonableness of a party’s behaviour is to be assessed in the consideration of costs awards involving a presumptive entitlement, a similar assessment might be undertaken when there is no presumptive entitlement.

[ 4 ] The result would be a determination of costs based upon the reasonableness of the behaviour of the parties. In assessing the reasonableness of the parties’ behaviour, I note that Rule 24(5) requires a consideration of any offers made to settle the matter.

[ 5 ] Rule 1(7) provides that if the Family Law Rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to the rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure .

[ 6 ] As I have noted, drawing an analogy to Family Law Rule 24(4), it is appropriate that a costs determination be made having regard to the reasonableness of the behaviour of the parties.

[ 7 ] Section 131(1) of the Courts of Justice Act leaves the determination of costs to the discretion of the court, both as to entitlement and quantum.

[ 8 ] Rule 57.01 of the Rules of Civil Procedure sets out factors for the court to consider in the exercise of its discretion under section 131, some of which relate to quantum, some of which relate to entitlement, and some of which relate to both. In terms of entitlement, it is my view that the following factors would be considered:

(1) The result of the proceeding;

(2) Any offer to settle made in writing;

(3) The importance of the issues;

(4) The conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(5) Whether any step in the proceeding was improper, vexatious or unnecessary; or taken through negligence, mistake or excessive caution;

(6) A party’s denial or refusal to admit anything that should have been admitted;

(7) The policy consideration that a CAS, which has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection, should not be dissuaded from the pursuit of its mandate by costs considerations.

Framework for Analysis

[ 9 ] Having considered the Family Law Rules , the Courts of Justice Act and the Rules of Civil Procedure , it is clear that the court retains the discretion to award costs in child protection cases. Whether that discretion will be exercised depends on the reasonableness of the behaviour of the parties. In my view, it is appropriate to assess the reasonableness of the behaviour of the parties by considering the seven factors set out above and such other factors as may be identified by the circumstances of a particular case.

Analysis

The Result of the Proceeding

[ 10 ] In the case before me, Ms. N. was successful in having the appeal dismissed. This would favour an award of costs against the CAS.

Any Offer to Settle Made in Writing

[ 11 ] Ms. N. made an offer to settle in writing dated July 21, 2011 in which she offered to settle the proceedings by having the CAS withdraw its appeal without costs if accepted by July 26, 2011 and with costs on a complete recovery basis if accepted thereafter. The offer was never revoked. I was advised of no offer to settle having been made by the CAS. The existence of this offer to settle would also favour an award of costs against the CAS.

The Importance of the Issues

[ 12 ] The issues in this case were of significant importance to both the Appellant and Respondent. From the perspective of the CAS the trial decision resulted in the return of a vulnerable child to a household in which he had previously suffered very significant injury. The desire of the CAS to ensure the correctness of the trial decision is understandable. From the perspective of the Respondent, the appeal represented the potential loss of her children on a permanent basis. In the circumstances of this case, the importance of the issues would not favour an award of costs against either party.

The Conduct of the Parties

[ 13 ] The Respondent suggests that the CAS conducted itself unreasonably in these proceedings. In particular, she argues that the CAS: (1) ought to have conceded the appeal relative to the child K.N.; (2) refused to co nsider any version of events in which Ms. N. could be without blame for her son’s injuries; (3) refused to recommend counselling for Ms. N. that might assist in reduction of risk to the children while in her care; and (4) did not consider other native family members as potential placements for the child. In my view, the CAS was succinct in identifying the issues for the appeal and in having the matter proceed in a timely fashion. They took no steps which might be identified as unfair or oppressive towards the Respondent. The CAS disagreed with certain factual findings made by the trial judge and with the law applied by him. It was entitled to do so. The conduct suggested by the Respondent as warranting a costs award does not, in my view, approach that which would attract an award of costs against the CAS.

Steps in the Proceeding

[ 14 ] I am not persuaded that any step in the proceeding taken by either party was improper, vexatious or unnecessary.

Denial or Refusal To Admit

[ 15 ] I am not persuaded that there were denials or refusals to admit by either party of things that should have been admitted.

Policy Considerations

[ 16 ] As stated by the Ontario Divisional Court in the case of Children’s Aid Society of Ottawa-Carlton v. S.:

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 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 considerations.

[ 17 ] This policy consideration favours an award of no costs.

Other Factors

[ 18 ] Incidental to the filing of this appeal, the CAS moved to stay the order of the trial judge pending disposition of the appeal. The motion was heard by Hennessy J., who found that there were serious issues for appeal. In particular, and although she acknowledged the absence of a transcript of trial for review, she found that the CAS had a good argument that the trial judge misapprehended the evidence of the father and of the mother. Given these comments, it is understandable that the CAS chose to continue through the completion of the appeal process.

Conclusion

[ 19 ] When I consider the above factors, I am of the view that there should be no award of costs. Notwithstanding the success of the Respondent and the offer to settle made by her, it is my view that a children’s aid society which acts reasonably and fairly in the conduct of its statutory obligation should not be exposed to costs. As indicated above, I am satisfied that the CAS in this case acted reasonably and fairly, particularly given the very serious abuse suffered by this child and the initial finding by Hennessy J. that serious issues existed for determination on appeal.

Mr. Justice R.D. Gordon

Released: March 1, 2012

COURT FILE NO.: AP-32-11
DATE: 20120301

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: The Children’s Aid Society of the Districts of Sudbury and Manitoulin Appellant – and – L.N., V.M. and D.M. Respondents DECISION ON COSTS R.D. Gordon J.

Released: March 1, 2012