COURT FILE NO.: C849/10-01

DATE: April 9, 2014

SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

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:

C.D.B. and L.D.B., Respondents

BEFORE: HARPER J.

COUNSEL:
Tim Price for the Society

Hamoody Hassan for C.D.B.

Lisa Walters for L.D.B.

Salim Khot, Donald Kilpatrick and Barbara Hoover for the Office of the Children’s Lawyer

HEARD: Written submissions filed

ENDORSEMENT on costs

Issues

[1] The father, C.D.B., seeks costs on a full indemnity basis for this extraordinarily lengthy trial and pre-trial process. In his submissions, C.D.B. claims the following:

An order for costs on a full recovery basis, payable forthwith and jointly and severally payable by the applicant/respondent, L.D.B., the applicant, Children’s Aid Society of London and Middlesex and the Office of the Children’s Lawyer in respect to their agents, Barbara Hoover and Salim Khot, in the following amounts:

Fees $2,642,406.50 (tab 2 of cost submissions brief)

H.S.T. @ 13% $343,512.85 (tab 3 of cost submissions brief)

Recoverable Disbursements $141,469.97

Including H.S.T.

Total Full Recovery Costs $3,127,389.32

[2] In my mid-trial ruling of October 1, 2012 on the issue of whether or not to allow Mr. Kilpatrick to withdraw as solicitor for the child MDB, I set out the history of this matter up to the commencement of the trial. I repeat this summary in order to give some background to the complexity and extent of the conflict that eventually struggled its way through a trial that lasted a shocking 154 days:

[1] The Children's Aid Society of London and Middlesex brought an application on September 10, 2010, pursuant to s. 37 of the CFSA, for a finding that the three children of C.D.B. and L.D.B were in need of protection. At the time, the children were the following ages: MDB, born […], 1994, was 15 years old (one day before his 16th birthday); RB, born […], 1997, was 12 years old; and MXB, born […], 2005, was 5 years of age. […]

[7] The father and mother physically separated at or about the end of May 2010. From that point until August 30, 2010, the children, MDB, RB and MXB resided with the father in the matrimonial home in Strathroy, Ontario. They had some access to their mother. This access was resisted by the two older children.

[8] At the time of the Application, MDB was criminally charged with, among other things, assault causing bodily harm to his mother and assault with a weapon. He was placed on strict conditions of bail that prohibited him from having any contact with his mother and restricted his ability to see his siblings unless certain conditions were met. After the criminal charges were brought against the child MDB, he was required to live with a surety outside of the father's home where his brothers continued to reside.

[9] On October 29, 2010, Vogelsang J. issued an order granting the temporary custody of the child MXB to the mother. The mother represented that she was residing with her parents in Chatham at the time. Temporary custody of the child RB was to be with the father and access between MXB and his father and siblings was also detailed, but continued to be difficult to arrange. MDB could no longer communicate with the mother and RB became increasingly resistant to seeing his mother.

[10] The child MXB was moved to Chatham to live with his mother, however this arrangement did not last long. The father appealed the order of October 29th and Hockin J. granted a stay pending the appeal to the Divisional Court. The child MXB was returned to live with the father pursuant to this order of Hockin J. dated November 19, 2010. From November 19, 2010 until April 1, 2011, MXB and RB continued to reside with the father and see their brother MDB within the complicated weave of the bail conditions and access orders of the Family Court. MXB continued to see his mother pursuant to the Family Court order and RB did not see his mother.

[11] In the first part of February 2011, the criminal charges against MDB were upgraded to include attempted murder of his mother. He was re-arrested and went through a bail hearing that spanned 18 days in the month of September. He was incarcerated throughout that period and eventually released on stricter bail conditions.

[12] On April 1, 2011, Bryant J. granted the Children's Aid Society's motion dismissing the father's appeal of Vogelsang J.'s order of October 29, 2010. He also removed the stay and the child MXB was moved, yet again, to reside with his mother in Chatham, Ontario. The access between the children has continued to be a struggle. RB has rarely seen his mother and MDB continues to be unable to communicate with his mother due to the bail conditions.

[13] At the time this trial started on October 13, 2011, the child MDB was still living with a surety. That changed in January of 2012 as a result of a consent order between Crown and criminal defence counsel that amended his bail conditions to allow him to reside with his father. Since then, the children MDB and RB have resided with their father. The child MXB has resided with his mother.

[14] An assessment pursuant to s. 54 of the CFSA was completed and filed shortly before the trial started.

[3] In my final reasons, I commented at para. 4:

The complexities and issues in this trial are at the far end of anyone's definition of extreme. It is helpful to detail at least some of the complex issues this trial has dealt with. From the outset of the filing of the protection application until the receipt of written submissions this matter took extraordinary twists and turns. The polarization of the parties, lawyers and other significant players helped explode this matter into one of the longest trials that spanned over 154 days of evidence. At stake in the matter before me is the future relationship between parents and their three children, and between the three children. The child protection issues were always the core issues in this trial but the focus of some of the significant players became crime, punishment and retribution. Allegations of domestic violence grew as time went on. Assertions that the father was coercive, controlling and abusive went from emotional abuse, to as far as him being a murderer who should be feared by all who opposed him, to him being someone who used his eldest son as a gun in his hands to try to kill the mother of these three children.

[4] It is not surprising to me that the polarization of the parties, lawyers and other significant players continues to push this matter into the extremes. To my knowledge, the costs of this matter are far in excess of any child protection/custody matter that has ever been reported.

... (continues verbatim exactly as in the source decision through paragraph [88]) ...

Justice R.J. Harper

Date: April 9, 2014