SUPERIOR COURT OF JUSTICE - ONTARIO

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 deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.-(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.

85.-(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.: C 952/10

DATE: 2014/06/17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children’s Aid Society of Hamilton, Applicant

AND:

K.L. and T.M., Respondents

BEFORE: The Honourable Madam Justice Deborah L. Chappel

COUNSEL: John Bland, Counsel, for the Applicant

Susan Sullivan, Counsel, for the Respondent K.L.

Amy Katz, Counsel for the Respondent T.M.

COSTS ENDORSEMENT

I. INTRODUCTION

[1] These are my Reasons for Judgment on the issue of costs in relation to a motion which I heard on March 3, 2014 (“the motion”). The Society brought the motion, requesting an order pursuant to section 54 of the Child and Family Services Act[^1] requiring the Respondents to undergo a risk assessment to be carried out by Dr. Kimberly Harris of the London Family Court Clinic. I dismissed the motion, and invited the parties to file written submissions with respect to costs if they wished to pursue a costs claim. The Respondent K.L. (“the mother”) seeks costs against the Society. The Respondent T.M. (“the father”) did not appear on the motion, and his counsel has not advanced a claim for costs on his behalf. The Society opposes the request for costs. For the reasons set out below, I decline to make an order for costs against the Society.

II. BACKGROUND

[2] By way of background, the Respondents are the parents of three children, namely T.M., born […], 2006, W.M., born […], 2011, and M.M., born […], 2013. The Society has a history of involvement with the family dating from shortly after the birth of T.M. The Society commenced a Protection Application in 2010 due to concerns regarding the mother’s history of involvement in abusive relationships and the existence of significant domestic conflict between the Respondents. From 2006 until 2010, police responded to twelve domestic incidents involving the Respondents. The Society eventually terminated its court intervention with the family in September 2011 in favour of a Voluntary Services Agreement.

[3] The Society initiated a second Protection Application on February 22, 2012 due to ongoing concerns regarding the father’s issues with anger and aggression, and a further very serious incident of domestic violence by the father towards the mother on January 25, 2012. The child T.M. witnessed this incident. The father was charged with assault with a weapon, uttering threats to cause death or bodily harm and breach of probation in relation to this incident, and was eventually convicted on all three charges. The children T.M. and W.M. remained in the care of the mother pursuant to a temporary supervision order for approximately one year during the course of the second Protection Application, subject to a number of conditions, including a term that the father was not to be present in the mother’s home. However, T.M. and W.M. were apprehended on February 6, 2013 after the police found the father in the mother’s home. The Society filed an Amended Protection Application, requesting an order for six months society wardship. This was the application before the court at the time of the hearing of the motion. On February 15, 2013, Mazza, J. granted a temporary order following a temporary care hearing, returning the children T.M. and W.M. to the care of the mother subject to Society supervision. The father was granted access in the discretion of the Society, to occur at the Society’s offices. On that date, Mazza, J. also made a restraining order prohibiting the father from having direct or indirect communication with the mother or the children, and from coming within two city blocks of the mother’s residence.

[4] At the hearing of the motion, the Society acknowledged that there was no evidence of any domestic conflict having occurred between the Respondents since February 2012. Furthermore, although it had suspicions that the father may have been present in the mother’s home since February 2013, it acknowledged that there was no clear evidence to support such a finding. In its Notice of Motion, the Society identified the following issues which it wished Dr. Harris to address through the assessment process:

1. Given the absence of evidence of domestic conflicts since February 2012, within the historical context of abuse, what risk does the father currently pose to the mother and the children?

2. Is the Respondent mother able to understand the potential risk which the Respondent father poses to her and the children, and to protect the children accordingly?

3. Are there any services or interventions recommended that would support the father returning to the family home?

[5] I declined to make an order requiring the Respondents to undergo an assessment by Dr. Harris for the following reasons:

1. I was not satisfied based on the evidence before me that Dr. Harris would be able to properly address the first question regarding the risk if any which the father posed, and the assessment as it related to the mother was inextricably linked to that preliminary issue.

2. I was not satisfied that the court required the assistance of an expert to determine whether the mother was able to appreciate the risk which the father may potentially pose for the family and to protect the children from any such risk.

3. With respect to the third question which the Society sought to put to Dr. Harris, I was not satisfied based on the evidence before me that the mother had any current intention of permitting the father to have access to her home.

4. The proposed assessment was very costly and intrusive in nature.

5. The timing of the motion was such that a further delay of the trial of the Amended Protection Application would have been necessary.

6. I had concerns regarding the nature of the consultations which the Society had had with Dr. Harris respecting this case in advance of the motion, and the impact which those consultations could have had on the assessment process.

7. Finally, I had concerns that the Society was seeking the assessment in order to bolster its case in the face of significant positive evidence indicating that there had been no domestic conflict between the Respondents since February 2012, that the father had not had access to the mother’s home since February 2013, and that the mother had been able to protect the children from exposure to domestic conflict since February 2012.

III. POSITIONS OF THE PARTIES RESPECTING COSTS

[6] The mother seeks an order for costs against the Society in the amount of $4,000.00, inclusive of HST and disbursements. She submitted that the Society’s conduct and position in relation to the motion were unreasonable and unfair, and that a costs sanction is therefore appropriate in this case. The mother made the following points in support of her position:

1. She alleged that the Society acted unreasonably in giving limited notice of the motion and pushing to have the motion argued before the Respondents received disclosure from the Society and police disclosure. She argued that Pazaratz, J. agreed that disclosure from the Society and the police was necessary prior to the hearing of the motion, and that he granted an adjournment of the motion on January 24, 2014 to allow for disclosure to occur.

2. She stated that the evidence which the Society relied upon in support of its request for an assessment was woefully insufficient and speculative at best.

3. She submitted that the Society failed to re-assess its position in this matter as time passed and new evidence that was highly favourable to the mother unfolded. In her view, the Society’s request for an assessment amounted to a blatant fishing expedition to obtain evidence to bolster its case.

[7] The Society opposes the request for costs. It denies that its conduct or position in relation to the motion were unreasonable or unfair. Counsel for the Society submitted that the request for an assessment was sound and reasonable having regard for the very significant history of domestic conflict between the Respondents, the mother’s history of becoming involved in abusive relationships and reconciling with the father after domestic incidents and the father’s presence in the home in February 2013 contrary to the terms of the temporary order in effect at that time. He argued that it was not unreasonable for the Society to be skeptical about the mother’s statements that she did not intend to allow the father access to her home or the children, and about the mother’s long-term ability to protect the children from domestic conflict.

IV. THE LAW

A. General Principles

[8] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act[^2], which provides that subject to the provisions of an Act or rules of court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. Rule 24 of the Family Law Rules[^3] sets out a number of principles to guide the court in the exercise of its discretion. The Ontario Court of Appeal has held that although court rules have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion.[^4]

[9] In Serra v. Serra,[^5] the Ontario Court of Appeal noted that modern rules respecting costs have the goal of fostering the following three fundamental purposes:

1. to partially indemnify successful litigants for the cost of litigation;

2. to encourage settlement; and

3. to discourage and sanction inappropriate behaviour by litigants.

[10] In determining how these objectives can be most appropriately achieved, the court must balance the goal of indemnifying the successful litigant for the costs of enforcing or defending their rights with the importance of not unduly deterring potential litigants from pursuing legitimate claims out of fear of overly burdensome cost consequences.[^6]

B. Liability for Costs

[11] As noted above, Rule 24 of the Family Law Rules sets out additional principles and guidelines that apply in determining costs in Family Law proceedings. The Rule sets out a number of factors relevant to the preliminary issue of liability for costs. Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs. However, Rule 24(2) stipulates that this presumption does not apply in a child protection case or to a party that is a government agency. The term “government agency” as defined in Rule 2 includes a Children’s Aid Society. Rule 24(3) provides that the court has the discretion to award costs to or against a party that is a government agency, whether the agency is successful or not.

[12] While success in a proceeding is a major consideration in determining costs, it does not shield a party from costs liability where the party has acted unreasonably. Rule 24(4) stipulates that a successful party who has acted unreasonably during a case may be deprived of all or part of the party’s own costs, or ordered to pay all or part of the unsuccessful party’s costs.

[13] The special approach to costs claims against Children’s Aid Societies recognizes the extremely important and difficult task which those agencies are entrusted with, and the challenging judgment calls which child welfare professionals must make on a regular basis in carrying out their mandate to protect children. Child protection staff must be encouraged to err on the side of caution in favour of protecting children in situations where they have reasonable grounds to do so, without having the added burden whenever they are required to make difficult judgment calls of having to embark upon a taxing cost/benefit analysis as to whether they can financially afford to protect the child in question.[^7]

[14] The following general principles apply when a claim is advanced for costs against a child protection agency:[^8]

1. Child protection agencies do not enjoy immunity from a costs award.

2. However, the starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.

3. The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.

4. The high threshold of “bad faith” is not the standard by which to determine a claim for costs against a child protection agency.

5. Costs will generally only be awarded against a Children’s Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.

6. A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome.

7. Important factors to consider in deciding whether costs against a Society are appropriate include the following:

i. Has the Society conducted a thorough investigation of the issues in question?

ii. Has the Society remained open minded about possible versions of relevant events?

iii. Has the Society reassessed its position as more information became available?

iv. Has the Society been respectful of the rights and dignity of the children and parents involved in the case?

v. In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society’s efforts to diligently carry out its statutory mandate of protecting children.[^9]

C. Quantum of Costs

[15] Once liability for costs has been established, the court must determine the appropriate quantum of costs. In Serra v. Serra,[^10] Boucher v. Public Accountants Council (Ontario),[^11] and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC,[^12] the Ontario Court of Appeal articulated the following general principles relating to quantum of costs:

1. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the litigant should pay.

2. Costs need to be proportional to the issues and amounts in question and the outcome of the case.

3. Amounts actually incurred by the litigant entitled to costs are not determinative.

4. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.[^13]

[16] Rule 24(11) sets out the following factors which the court must consider in setting the amount of costs once liability for costs has been established:

FACTORS IN COSTS

24 (11) A person setting the amount of costs shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[17] Where success in a step in a case is divided, the court may exercise its discretion to apportion costs as appropriate.[^14] Where the court determines that a party has acted in bad faith, Rule 24(8) directs the court to find the offending party liable for costs, and to order costs on a full recovery basis, payable immediately. This costs provision is subject to the general principle that costs claimed must be reasonable.

V. ANALYSIS

[18] I am not satisfied that an order for costs is appropriate in this case. I deal first with the mother’s submission that the Society acted irresponsibly from a procedural standpoint by giving short notice of the motion, pressuring to proceed with the motion despite the fact that disclosure issues remained outstanding, and continuing with the motion notwithstanding that an order for the assessment would have necessitated an adjournment of the trial. I do not agree that the manner in which the Society conducted itself from a procedural perspective warrants an order for costs. The evidence indicates that the Society advised counsel for the mother on December 18, 2013 that it was seeking the assessment. The mother’s counsel responded that she would seek instructions. The Society’s motion was dated January 17, 2014, and was originally returnable on January 24, 2014. As of that date, the mother had been on notice regarding the Society’s request for a month, and there was still a