Superior Court of Justice – Ontario

Family Court

Court File No.: C1511/96-21
Date: July 4, 2013

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant

AND:

T.S.-V. and H.A.J., respondents

BEFORE: VOGELSANG J.

COUNSEL:
Michael Cormier for the Society

Holly Watson for the respondent, T.S.-V.

No one for the respondent, H.A.J.

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[1] This endorsement deals with the issue of costs arising from a temporary care and custody motion April 19, 2013. Written submissions were received from the Children’s Aid Society and on behalf of the mother, the respondent T.S.-V. The respondent H.A.J. took no part in the motion.

[2] The nub of the issue before me on the motion was the propriety of the Society apprehending six children without a warrant immediately after a Justice of the Peace had dismissed an application for a warrant to apprehend five of the children. In brief oral reasons, I found that the Society was wrong in attempting to employ s. 40(7) to justify its action and that an application should have been brought under s. 64(2)(c). I was quite critical of the Society’s disregard for the decision of a judicial officer and its determination to apprehend in any event.

[3] As I have set out, Ms. Watson’s client was certainly successful on the motion and, in the usual case, would be presumptively entitled to costs; however, this is a child protection matter and r. 24(2) of the Family Law Rules, O. Reg. 114/99 specifically removes the presumption.

[4] The issue of costs being awarded against a Children’s Aid Society has been discussed in a number of cases, and many judges have wrestled with the tension between the accepted notion of successful litigants being at least partially compensated for their legal costs and an understandable reluctance to deter a Society from carrying out its statutory mandate in the diligent protection of children. See, for example, Children’s Aid Society of Algoma v. M.(R.) (2001), 2001 25594 (ON CJ), 18 R.F.L. (5th) 36 (Ont. C.J.) per Kukurin J.; Children’s Aid Society of Waterloo (Regional Municipality) v. C.(Z.B.), 1996 4742 (ON CJ), [1996] O.J. No. 4245 (Ont. Prov. Div.) per Katarynych J.; Children’s Aid Society of Niagara (Region) v. B.(C.) (2005), 2005 32915 (ON SC), 20 R.F.L. (6th) 50 (Ont. Sup. Ct.) per J.W. Quinn J.

[5] Recent cases, however, seem to distinguish between claims for costs against a Society where there has been a legitimate, objectively reasonable attempt to ensure a child’s safety and protection and a costs claim where there has been procedural misconduct or irregularity which has led to the incurring of additional litigation and extra expense for respondents. In the former, the rationale for the exemption from the presumptive entitlement to costs, in the words of the Divisional Court in S.(D.), Re, 2003 88994 (ON SCDC), [2003] O.J. No. 945:

… 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.

[6] With respect to the second class of circumstances, where proper procedure is disregarded or breached, as Kukurin J. observed in Children’s Aid Society of Algoma v. M.(R.):

41 Implied and suggested in this relevant body of case law is the principle which Justice Agro refers to very specifically and clearly in Children's Aid Society of Brant v. C.(D.M.) and C.(J.) (1997), 1997 9575 (ON CJ), 27 R.F.L. (4th) 123, [1997] O.J. No. 3145 (Ont. Prov. Div.). This is the principle of accountability of a litigant for the manner in which he, she or it presents its case and expedites a reasonable resolution. For a society, this extends to how it investigates its case and presents it to the court, always measured against the background of the statutory requirements of the Child and Family Services Act. To quote Provincial Judge P.H. Marjoh Agro:

Without the possibility of an award of costs, what accountability can there be?

[7] Procedural impropriety has led to societies being found responsible for costs in a number of cases, among them: Children’s Aid Society of Hamilton-Wentworth v. A.F., [2001] O.J. No. 119 (Sup. Ct.) (society brought an untimely “irresponsible” motion to remove a parent’s counsel) and Children’s Aid Society of Hamilton-Wentworth v. R.(S.) (2003), 2003 2004 (ON SC), 39 R.F.L. (5th) 252, leave to appeal refused 2003 CarswellOnt 2952 (Div. Ct.) (society’s failure to comply with court ordered timelines caused extra costs to the mother before and during trial, and society “must be censured”).

[8] In this case, the wrongful apprehension of the five children immediately after the warrant refusal by the Justice of the Peace led directly to Ms. Watson’s motion for a declaration that the taking of the children was not lawful, and the incurring of significant additional legal fees by Ms. S.-V. To my mind, there is no merit to the Society submission that the facts in this matter raised a novel legal issue and should attract either no award of costs or a minimal award: see Magder v. Ford, [2013] O.J. No. 1489 (Div. Ct.). Here, however, the misuse of s. 40(7) was egregious. The Society cannot escape accountability because no one has tried to misuse it before.

[9] Some of the legal work and disbursements set out in Ms. Watson’s draft Bill of Costs may not relate to this particular motion exclusively. As well, I am mindful of the factors concerning quantum of a costs award set out in r. 24(11). In my view, a fair, appropriate and proportional award of costs against the Society – and one in the range an unsuccessful litigant could reasonably expect to pay – is $3,250 inclusive of recoverable disbursements and HST. The costs award is payable in 30 days.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: July 4, 2013