WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deal with the consequences of failure to comply with subsection 45(8), read as follows:
– (8) 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.
– (3) A person who contravenes subsection 45(8) (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.
COURT FILE NO.: FS-12-18055
DATE: 20130201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J. F. C. S.
Applicant/
Respondent in Appeal
- and -
L. K.
Respondent in Appeal
- and -
Lorne Glass, for the Applicant/Respondent in Appeal
Ian Mang, for the Respondent (mother) in Appeal
M. (M) B.
Appellant
Jeffrey Wilson, for the Appellant (father)
Katharina Janczaruk, O.C.L., for the child J.B.
William Sullivan, O.C.L., for the child S.B
HEARD: Written Submissions on Costs
Czutrin J.
[1] While the father’s continuing appeal has been rendered moot by the October 3, 2012 endorsement of Sherr J. of the Ontario Court of Justice (OCJ), the father seeks costs arising from my June 29, 2012 ruling on his first appeal. He also seeks other costs related to a second appeal, never heard, as the OCJ dismissed the child protection application that gave rise to temporary orders by the OCJ that were the subject of both appeals to this court.
[2] My ruling of June 29, 2012 considered the following issues, as raised by the father:
What are the reasonable or legitimate expectations of parties to litigation when they attend a family law settlement conference before a judge in Ontario?
Even if a judge is of the view that a party’s conduct requires sanctioning, censorship or regulation, can the judge rely upon the material filed at the Settlement Conference to make an adjudicative Order that is not on consent?
Can an Order be made at a Settlement Conference without any prior notice to the other parties, and apparently on motion at the judge’s own initiative?
Can a Settlement Conference Judge decide he or she has jurisdiction to extend the prescribed Family Law Rules timetable for the hearing of the trial based upon the events within the Settlement Conference?
Are the materials filed within a Settlement Conference information upon which a judge can rely to make an order without notice?
Can a judge accept materials at a Settlement Conference, not filed as evidence, review them, and then make an Order?
What is the purpose of rules 17(23) and 17(24) (to which the judge did not refer in his “reasons for judgment”) if a Settlement Conference Judge can do so as was done on April 16, 2012?
And having done so, how does the judge then decide to retain jurisdiction as the Case Conference Judge?
[3] In explaining my appeal analysis I specifically stated that I did not intend to address the merits of this case and restricted the issues of the appeal to the question of whether, in this case, the settlement conference judge had the jurisdiction, on the material filed, to extend the time prescribed. At the Settlement Conference the OCJ judge removed the matter from the Trial Assignment Court and, as a result, changed the timetable required under Rule 33 of the Family Law Rules (a trial within 120 days of the commencement of the application). He did so without previous notice of such request being made by any party and in absence of notice or explicit consent. He changed the timetable that was previously set by the judge (not at a conference), based on the contents of a settlement conference brief and what transpired at the conference (para. 17).
[4] I concluded that since there was no notice and no consent, implied or otherwise, there was procedural unfairness that was not cured by application of Rule 2. If the order was necessary to protect the child’s best interests, it remained open to seek an extension of the time table before another judge who would decide without reference to the settlement conference briefs (para. 27). I allowed the appeal and stated that any motion to extend time lines, and the trial, would both be heard by a judge other than myself (paras. 28-29). I held that pending any further order at the OCJ, this case should be placed on the next Assignment Court at the OCJ or such earlier date that may be fixed by an OCJ judge on motion.
[5] In his endorsement of October 3, 2012, Sherr J. had to consider the Society’s motion to extend the timelines as I provided for in my ruling of June 29, 2012.
[6] He found that no one moved to extend the timelines in a timely manner despite my “clear direction.”
[7] At the August 8, 2012 Assignment Court, the father moved to dismiss the protection application as no one moved to extend the timelines. The father’s motion to dismiss was adjourned to September 19, 2012.
[8] The Society served, on a Sunday evening a motion returnable for a Tuesday motion, seeking to extend the timelines as contemplated by my June 29, 2012 ruling.
[9] While recognizing the challenge of the case, Sherr J. concluded that the Society should have brought their extension motion much earlier. He concluded that the court “still has to balance the procedural breaches against the best interests of the children.”
[10] He then reviewed the Society’s material and concluded: “the protection concerns set out in the material did not rise to the level where I would find that it is in the best interests of the children to extend the timelines…”
[11] While I leave his endorsement there for now, when considering the issues of costs, I will return.
The Father’s Position on Costs
[12] The second appeal arose because the same judge whose order I overturned on June 29, 2012 made a second order after conducting a Settlement Conference. Because of Sherr J.’s Ruling of October 3, 2012 dismissing the child protection application and Kiteley J.’s interim ruling granting the father’s request to vary the order of Spence J. of March 14, 2012 (subject of the second appeal), the second appeal became moot.
[13] The father’s counsel’s bill of costs of the first appeal totals $17,994.80 inclusive of disbursements and H.S.T. and for the second appeal the bill totals $8,233.59 inclusive.
[14] The father’s counsel submits that the Society has no protection under rule 24(2) of the Family Law Rules because the costs are entirely a function of procedural failing and therefore the Society is in no different position than any other litigant.
[15] The father relies on a number of cases to support his position.
[16] He submits that I should conclude that the Society conducted itself in an unfair and unreasonable manner and therefore their actions attract costs consequences.
[17] The father submits that the mother argued against his appeals and she has no presumptive protection under rule 24(1). As far as the second appeal, both the Ontario Children’s Lawyer (OCL) and mother have no protection since they both opposed the second appeal.
The Society’s Position on Costs
[17] The Society asserts that there should be no costs awarded.
[18] The Society submits that it should not be penalized for its continued and vigorous investigation and monitoring of the parents and their children, particularly in light of the exceptional pressures and stressors that the therapeutic team had identified in the child J.B. at the time of his apprehension and in the ensuing months.
[19] The conduct and actions of the Society were fair, reasonable, and in accordance with the Society’s responsibility to act in good faith, particularly in light of the exceptionally stressful circumstances of this case and the unreasonable conduct of the Appellant father.
[20] Sherr J.’s dismissal should not be viewed as an automatic success of the father such that it presumptively attracts costs pursuant to Rule 24. Rather, the result should be viewed as mixed or divided success under rule 24(6), leaving each party to deal with their own costs.
[21] The father’s unreasonableness should be considered under rules 24(4) and 24(11).
The Mother’s Position on Costs
[22] The mother submits that there should be no costs except for costs related to costs submissions.
[23] Her costs submissions not only deal with the costs relating to the appeal but also the father’s claim for costs related to the OCJ case where she submits the father is claiming $38,288.49.
[24] The mother claims costs for the costs submissions of $2,000 for the OCJ and $2,000 for the appeal.
[25] The presumption of entitlement to costs does not apply in child protection cases and this also applies to claims between the parents.
[26] The mother refers to an offer she made within the context of the now dismissed child protection application. She claims that ultimately the result is consistent with her offer to settle for a week about arrangement.
[27] The mother submits that the issue of costs continues the litigation.
[28] The mother also submits that costs were not determined at each step as required by rule 24(10) and some of the costs claimed should have been decided at each step. This includes my June 29, 2012 endorsement.
[29] Specifically with respect to the costs of the appeals, she submits that each court (this court and the OCJ) must have a full picture in order to properly evaluate the reasonableness of the parties’ conduct against the result obtained and ultimately the best interests of the children.
[30] Since my June 29, 2012 ruling, there have been two subsequent attendances before this court that I did not have to rule on.
The OCL Position on Costs
[31] The OCL asserts that no costs should be awarded.
The Father’s Reply
[32] The father submits that as of September 27, 2012, he proposed that the appeal be permitted on consent and that, if agreed, he would not seek costs for those who consented respecting both appeals. Those who opposed would face his argument for costs on both appeals.
[33] The father questions the facts as outlined by the Society in its costs submissions. If I were to consider accepting those facts, he seeks to file further evidence and seeks cross examination of a representative of the Society.
[34] The balance of the submissions speaks to how the children were doing on November 29, 2012, at the time of the father’s reply submissions.
[35] Similarly, with respect to the mother’s submissions, the father addresses the mother’s actions including matters resolved by Kiteley J.’s ruling pending the second appeal.
[36] The submissions inform me that to both parents’ credit, since the dismissal by Sherr J. the parents have agreed to a week on/week off arrangement without any further involvement of the courts.
[37] The father goes on to outline the parties’ respective positions not as it relates to the appeals but to the conflict and the reasons that the Society became involved. He claims that his position has been borne out by the results and the reality of the children’s lives as of November 29, 2012.
[38] The position concerning the OCL relates mainly to the second appeal that ultimately became moot.
Disposition
[39] As referred to above, when I disposed of the first appeal I stated the following at para. 17:
I do not intend to address the merits of this case itself, but restrict the issues of this appeal to the question of whether, in this case, the settlement conference judge had the jurisdiction, on the material before him, to extend the time prescribed in absence of notice, explicit consent and, in effect change the timetable that was previously set by the judge based on the contents of a settlement conference brief and what transpired at the conference.
[40] I expected that the issues (extension of timelines and the merits of the protection appeal) would be returned to the OCJ for an ultimate decision.
[41] The other issues giving rise to the second appeal became moot by the ultimate disposition by Sherr J., and the urgency of the second appeal was largely resolved by Kiteley J.’s order.
[42] I did not invite costs submissions and regret now that I was not explicit by my silence and my decision. Given the fact that my ruling was narrow and was based on the ruling of a judge not invited, costs did not appear appropriate.
[43] Given the narrow focus of the appeal I am not in a position to be able to decide costs in a proper assessment of the Rule 24 criteria, particularly when it comes to costs issues that mainly dealt with actions of the Society unrelated to the appeal.
[44] It would be for Sherr J., who ultimately decided to dismiss the application, to consider (if he has not already done so) all the factors that would have costs awarded in a child protection case.
[45] The father’s submissions recognize that for me to consider whether it was appropriate for the Society to have commenced a child protection application in the first place would require me to consider the merits that I did not need to consider for the disposition of the appeal.
[46] In reviewing Sherr J.’s endorsement, I note that he had the benefit of evidence including the Society’s, when they finally sought to extend the timelines that I suggested that they bring at the OCJ when I disposed of the first appeal on June 29, 2012.
[47] Sherr J. noted: “if the society was struggling with the right approach to take with this family moving forward I have some sympathy.”
[48] He also noted that that the latest material filed by the Society in support of the motion to extend “did include evidence of continuing protection concerns.” He continued, “[t]his court is well aware that there is a risk that with the dismissal of the society’s application that the family could revert to past patterns of conflict that will adversely affect the children.”
[49] Sherr J. concluded that a trial would be destructive for this family and particularly the children. “The risk of them being damaged by this process exceeds the benefit of the continued society involvement.”
[50] Finally Sherr J. concluded: “in challenging circumstances the society’s involvement has benefitted the children and they are to be commended for their efforts. They helped stabilize an unstable situation.”
[51] For me to now consider costs and weigh the Rule 24 considerations is to draw conclusions that might run contrary to those of a judge who was in a better position than I was to draw conclusions about the Society’s actions.
[52] It would also lead to also making findings about the parents at a time when they appear to have resolved their issues.
[53] In the end, costs remain in my discretion. I find that this is not a case for costs on the appeal I disposed of on June 29, 2012, or the second appeal that became moot.
Czutrin J.
Released: February 1, 2013
COURT FILE NO.: FS-12-18055
DATE: 20130201
ONTRIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
J. F. C. S.
Applicant/
Respondent in Appeal
- and -
L. K.
Respondent in Appeal
- and -
M. (M) B.
Appellant
REASONS FOR JUDGMENT
CZUTRIN J.
Released: February 1, 2013