ONTARIO
SUPERIOR COURT OF JUSTICE
LINDSAY COURT FILE NO.: 239/11
DATE: 20120914
B E T W E E N:
Kawartha-Haliburton Children’s Aid Society
Paul Lesarge, for the Applicant
Applicant
- and -
K.H. and T.C.
Gene C. Colman, for the Respondents; Anna Friend for the Office of the Children’s Lawyer
Respondents
HEARD: August 28 th , 2012
Gunsolus, J.
Supplementary Reasons for Costs Ordered 28 August 2012
WARNING
This is a case under Part III — Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:
45(8) PROHIBITION: 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.
76(11) PUBLICATION — No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.
85(3) OFFENCES — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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.
[1] On August 28 th , 2012, a motion was brought by the parents’ counsel, seeking disclosure, amongst other things as follows:
- Documentary Disclosure:
a. The C.A.S. and the Child’s Lawyer shall each forthwith produce to parents’ counsel (Mr. Gene C. Colman) their entire files (to the extent not protected by solicitor-client privilege and to the extent that Mr. Colman does not already have the documents) including documents received from any outside sources such as hospitals, physicians and other agencies [ Family Law Rules , R. 19(2), 19&7)]
b. The C.A.S. and the Child’s Lawyer shall each produce to parents’ counsel an Affidavit of Documents [ Family Law Rules , R. 19(6.1)]
Response to Request for Information : The C.A.S. shall forthwith provide parents’ counsel with an Affidavit in response to the Request for Information Form served on C.A.S. on August 10, 2012. [ Family Law Rules , R. 20(3)(b)]
Costs : The C.A.S. and Office of the Children’s Lawyer shall pay full indemnity costs for the preparation of this Motion and parents’ counsel’s attendance if this motion is defended. [ Family Law Rules, R. 2493)]
Other : Such further and other relief as this Honourable Court may deem just.
[2] The motion relates to a child protection proceeding concerning the child, N.D.C, who was born on the }[…], 2011, and has been in the care of the Society since August. 2011, over one year.
[3] In again reviewing the case management justice’s endorsements, it would appear that disclosure has, in fact, been raised as an issue since the commencement of these proceedings.
[4] The matter was scheduled to be heard during the May 2012 sittings, but could not proceed as the Children's Aid Society had not yet served and produced an expert’s report upon which they intended to rely at trial. It would appear that that report became available, but not soon enough such that the matter could not proceed at the May 2012 sittings. The matter is now to proceed at the November 2012 sittings.
[5] Concerned that the parents had not received full disclosure from the Society, counsel on behalf of the parents brought the motion as set out in paragraph 1, above.
[6] As a result of counsel for the parents bringing this motion, and after the commencement of court, a consent to disclosure was indicated by counsel for the Children's Aid Society. Counsel for the parents related to the court that he was required to bring the motion, travel from Toronto to Lindsay, Ontario to argue the motion, only to determine that there was consent to the disclosure being sought.
[7] Counsel for the parents expressed concern as to the costs that his clients were forced to incur, and the time required for him to bring the motion, prepare for argument and travel to Lindsay prepared, and expecting to, argue the motion.
[8] I was satisfied that as a result of bringing this motion, full disclosure finally will occur. I expressed my dismay that all too often, child protection trials are commenced, only to be delayed for days or to another sitting, because of lack of disclosure. In this case, it would appear that disclosure has come, in a haphazard, piecemeal and delayed basis.
[9] I ultimately made a costs order, cognizant of the law in relation to costs involving child protection proceedings. There is no presumption entitling costs against a child protection agency, however, the court may award costs where a Society does not conduct itself fairly in carrying out its statutory responsibilities. [^1] Indeed, the modern approach is to regard a Society as having no immunity from costs awards, however, neither should a Society be punished by costs, but should be held accountable . [^2]
[10] The general test for ordering costs against a Children's Aid Society is that a Society must have conducted itself in a manner that was unfair. To attract an award of costs, there is no need to determine that a Society has acted in bad faith. Indeed, a Society should not be punished for a mere judgment in error in carrying out its difficult and important statutory function.
[11] While there is no presumption in child protection cases such that a successful party is deemed entitled to costs of a motion, Rule 24(2) does not save a Society on procedural issues where costs are created by a procedural failing of a Society. [^3]
[12] Modern disclosure rules in both criminal and civil proceedings provide that a party should give early, comprehensive and ongoing disclosure information or documents in that party’s possession or control that are relevant in the case. Disclosure standards that are expected in child protection hearings, at least from a state agency requesting a termination of a child and parent relationship, may indeed be higher than those in other civil matters. Our Supreme Court has recognized that protection proceedings engage the section 7 Charter rights of parents and has held that Charter protection is not restricted to cases of physical restraint, but include any situation “where state compulsions or prohibitions affect important and fundamental life choices, including child protection matters.” [^4]
[13] Indeed the court has held that procedural fairness in a child protection case requires that parents be accorded a process that enables them to prepare their case effectively. [^5]
[14] The Child and Family Services Act , RSO 1990, c. C-11 provides that its paramount purpose is to “promote the best interests, protection and well being of children”. It is in the interests of both children and parents in protection proceedings that disclosure obligations exist that ensure that the parties and the court have not only complete but early disclosure of relevant information and documents. The primary objective of the Family Law Rules is to enable the court “to deal with cases justly” which includes “ensuring a process that is fair to all parties”. [^6]
[15] In protection proceedings, there is no presumption that success leads to a costs award. Indeed case law has recognized that a Society should not be penalized in costs when it is attempting to carry out its statutory mandate to protect children. It is however, appropriate to award costs against a Society when the Society has acted in a manner that an ordinary person would perceive as “unfair”. [^7]
[16] In my view, in this case, an ordinary person would find the requirement for the parents to bring a disclosure motion, over one year after their infant was apprehended to be “unfair”. Indeed, submissions by the Society on the day in question caused the court to believe that there cannot possibly be a policy or process in place whereby the Society ensures that it is giving timely, ongoing disclosure in this or perhaps, any other case. Disclosure is not a luxury, it is a necessity. Timely disclosure is required to ensure that the court is able to meet its obligations concerning statutory timelines imposed by the CFSA and so that an infant, such as NDC, is not left in limbo. He has been in care for over a year. This matter had been scheduled for trial in May of 2012, and is now scheduled for the November 2012 sittings. As a result of this motion brought by parents’ counsel, it was determined and admitted by the Society that some disclosure remained unfulfilled. While indeed the Society ultimately consented to the relief sought by the parents’ counsel, that consent did not come until they had been served with this Notice of Motion and, according to counsel for the parents, was not conveyed to him, until after motions had begun on the 28 th of August 2012.
[17] It was clear to me that but for this motion, the trial of this matter could well have commenced in November of 2012 only to be delayed once again, when it was determined that disclosure remained outstanding. How can a fair trial be conducted for the benefit of the Society, the parents and the child in such circumstances? N.D.C has been in care for over a year and a decision, based upon all available evidence, needs to be made in order to determine an outcome that is in his best interests. N.D.C deserves certainty and he deserves permanency. Had the parents’ counsel not brought this motion, the trial would have commenced with disclosure outstanding in November 2012, and could well have been delayed again.
[18] As I indicated orally on the day I heard this motion, the request for costs on a substantial indemnification basis was not made out, as I do not believe that the Society acted in bad faith. On the other hand, it was not necessary for me to determine that the Society had acted in bad faith to order costs. Rather, I considered that the Society had not acted fairly in this matter in relation to ongoing and timely disclosure, and thus the partial indemnity costs that were ordered.
“The Honourable Mr. Justice D.S. Gunsolus”
DATE RELEASED: September 14, 2012
[^1]: See Children's Aid Society of the Districts of Sudbury and Manitoulin v. H. (J.) , [2005] O.J. No. 5780 (Ont. C.J.)
[^2]: See Children's Aid Society of Algoma v. M. (R.) , 2001 25594 (ON CJ) , [2001] O.J. No, 2441, 18 R.F.L. (5 th ) 36 (Ont. C.J.) . See also Children's Aid Society of Waterloo (Regional Municipality) v. C. (Z.B.) , 1996 4742 (ON CJ) , [1996] O.J. No. 4245 (Ont. Prov. Div.)
[^3]: See Children's Aid Society of Hamilton v. R. (S.) 2003 2004 (ON SC) , [2003] O.J. No. 1312, 39 R.F.L. (5 th ) 252 (Ont. S.C.J.); leave to appeal refused 2003 88989 (ON SCDC) , [2003] O.J. No. 3075, 42 R.F.L. (5 th ) 264 (Ont. S.C.J.). See also Children's Aid Society of Hamilton -Wentworth v. F., [2001] O.J. No. 119 (Ont. S.C.J.)
[^4]: Blencoe v. British Columbia (Human Rights Commission) , 2000 SCC 44 () , 2000 S.C.C. 44, [2000] 2 S.C.R. 307, 260 N.R. 1, 141 B.C.A.C. 161, 81 B.C.L.R. (3d) 1, 231 W.A.C. 161, [2000] 10 W.W.R. 567, 190 D.L.R. (4 th ) 513, 77 C.R.R. (2d) 189, 23 Admin.L.R. (3d) 175, 3 C.C.E.L. (3d) 165, [2000] S.C.J. No. 43, 2000 CarswellBC 1860
[^5]: New Brunswick (Minister of Health and Community Services) v. G.(J.) , [1999] 3 S.C.R. 46, 244 N.R. 276, 216 N.B.R. (2d) 25, 552 A.P.R. 25, 177 D.L.R (4 th ) 124, 50 R.F.L. (4 th ) 63, 26 C.R. (5th) 203, 1999 653 , [1999] S.C.J. No. 47, 1999 CarswellNB 305.
[^6]: See Catholic Children’s Aid Society of Toronto v. A.S. [2007] O.J. No. 5006, 2007 ONCJ 596 , 47 R.F.L. (6 th ) 208, 2007 CarswellOnt 8280, 172 A.C.W.S. (3d) 961
[^7]: See Children's Aid Society of Algoma v. Robert M. et al. (2001), 2001 25594 (ON CJ) , 18 R.F.L. (5 th ) 36, 2001 CanLII25594, [2001] O.J. No. 2441, 2001 CarswellOnt2204 (Ont. C.J.)