COURT FILE NO.: FS-18-0047 DATE: 2018 11 29

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF THE REGION OF PEEL Ely-Anna Hidalgo-Simpson, for the Applicant Applicant/Respondent on Appeal

• and -

L.M. (née L.D.) Jessica Gagné, for the Respondent Respondent/Appellant

HEARD: May 31, 2018, at Brampton, Ontario Price J.

COSTS ENDORSEMENT

OVERVIEW

[1] The Children’s Aid Society of Peel (“CAS”) removed L.M.’s two eldest children from her care on May 20, 2016, following an incident on December 17, 2015, in which L.M., while holding her ten-month-old daughter, S.S., removed a hot pan of baked goods from the oven, accidentally burning S.S. The CAS apprehended her youngest child, E.M., from her care on […], 2016, a day after he was born. The children have been in separate foster homes since then.

[2] On January 30, 2018, Justice Dunn granted summary judgment, making all three children Crown wards with no access by L.M. L.M. appealed from that decision and moved for state-funded counsel to represent her in her appeal. The Children’s Aid Society opposed her motion for state-funded counsel. While acknowledging that she met all the requirements articulated by the Supreme Court of Canada for such motions, the Society argued that she had failed to demonstrate that her appeal had any merit. The Attorney General of Ontario, who would be responsible for funding counsel if L.M.’s motion was successful, and the Office of the Children’s Lawyer took no position on the motion.

[3] In a decision and reasons issued June 11, 2018, this Court allowed L.M.’s motion for state-funded counsel. The parties were unable to agree on the costs of the motion and have filed written submissions on that issue. The Court has reviewed the submissions and this endorsement will address the costs issue.

BACKGROUND FACTS

[4] L.M. is 35 years old and has 3 children, ages 8, 3, and 2. On December 1, 2011, on the application of Toronto CAS, Weagant J. found R.D., L.M.’s eldest child, in need of protection. Two months later, L.M. married E.M.S., whom the Toronto CAS found to be an appropriate caregiver for R.D. and an effective support for L.M. On June 20, 2013, E.R. Murray J. made a Final Order placing R.D., then 3 years old, with L.M. and E.M.S. for six months, subject to supervision by the Toronto CAS. Later Orders in December 2013 and March 2015 confirmed that placement. Each Order provided that R.D. was not be left alone in L.M.’s care for extended periods.

[5] On February 27, 2014, L.M. and E.M.S. moved to Halton Region, and the Halton CAS assumed jurisdiction over the supervision of R.D.’s care. On […], 2015, S.S. was born to L.M. and E.M.S., with no intervention by the CAS. In September 2015, L.M. became pregnant with E.M. By October 2015, the Toronto CAS planned to end the court’s involvement and continue to work voluntarily with L.M. and E.M.S. However, before it could withdraw its Protection Application, E.M.S. died on November 11, 2015.

[6] Following E.M.S.’s death, L.M., with R.D. and S.S., moved to L.M.’s aunt’s home in Peel Region. The Halton CAS continued its court involvement, even though the family now resided in Peel. Halton CAS brought a Protection Application for S.S. and a status review application for R.D., and on December 17, 2015, O’Connell J. granted a temporary Order, placing R.D. and S.S. with L.M. under Halton CAS supervision, on terms requiring L.M. to live with her aunt in Peel and not to be alone with the children for more than five hours per week. Peel CAS assisted Halton CAS in monitoring the household.

[7] From November 2015, when L.M. and the two children moved to Peel Region, until May 2016, L.M.’s aunt grew uncomfortable with R.D.’s disruptiveness, R.D. having been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, autism spectrum disorder, and a learning disability. She asked that another placement be found for L.M. and the children. In the meantime, in early 2016, L.M. met J.M., who is 49 years old, whom she later married.

[8] On April 26, 2016, while L.M. was holding S.S., she removed a hot tray of baked goods from the oven, accidentally burning S.S. She regarded the incident as an accident, but the Peel CAS regarded it as evidence of neglect.

[9] On May 16, 2016, L.M., with R.D. and S.S., moved to a house where J.M. rented the second floor and basement for himself and his three children, Thomas, who is 23, David, who is 19, and A.M., who is 13. The landlords occupy the main floor of the house. On the same day they moved into the home, the Peel CAS apprehended R.D. and S.S. On May 20, 2016, Parent J. varied the December 17, 2015, Order of O’Connell J., and placed R.D. and S.S. in the care of Peel CAS, with access to L.M. twice per week, supervised by the Society. E.M., the child of L.M. and the late E.M.S., was born on […], 2016. Peel CAS apprehended him the following day and placed him in a different foster home from that of his siblings.

[10] L.M., sometimes accompanied by J.M., began exercising access to the three children in June 2016. J.M. and L.M. were married in August of 2016.

[11] In June 2016, when Peel CAS took E.M. into care, it moved for a status review of R.D., who was then 7 years old, seeking an Order that he be made a Crown ward and be placed in the CAS’s custody for adoption. It additionally sought a finding that S.S., then 1.5 years old, and E.M., still a newborn, were in need of protection and for an Order that they also be made Crown wards and be placed the CAS’s custody for adoption. L.M. opposed the CAS’s application and asked that her three children be returned to her and J.M. under the Society’s supervision. J.M. was not a party to the proceeding, but was included in L.M.’s plan for the children.

[12] The CAS noted R.D.’s biological father in default on June 13, 2017. By September 12, 2017, S.S., who was then 2.5 years old, had been in the care of the Peel CAS for over a year since May 16, 2016, when she and R.D. were apprehended, and for a year and nine months since December 17, 2015, when O’Connell J. placed her and R.D. in the care of Peel CAS. E.M. had been in care for a year and three months since his apprehension on June 8, 2016.

[13] Section 70(1) of the Child and Family Services Act, R.S.O. 1990, c. C.11, provides that a child under six years of age may remain in care for a maximum of one year. Peel CAS therefore moved for summary judgment in its application. Dunn J. heard the motion for summary judgment on November 15, 2017. Mr. Baker, on behalf of L.M., consented to the court making statutory and protection findings for S.S. and E.M. Mr. Misheal, of the Office of the Children’s Lawyer, agreed to an Order for Crown wardship, but urged that the children have access to each other.

[14] Justice Dunn noted that Mr. Baker had described a number of positive characteristics of L.M. and her husband. Neither has a criminal record, they have no issues with drugs or alcohol, no domestic violence or history of police intervention, and were available full-time to parent without work or school commitments. Their residence was in a good geographic location, they were committed to employing daycare for the children, were able to work with the Peel CAS and foster parents, and did not ignore the CAS’ concerns about conditions in their residence. On their own, they sought and accepted support from a community wellness coordinator and completed a seven week parenting program recommended by the Peel CAS.

[15] The CAS’s lawyer relied on the CAS workers’ observations of the parents’ interactions with the children. She conceded that some visits went well, and that L.M. adequately met her children’s needs. Sometimes, the notes indicated “overall, a positive visit”. They observed the following strengths in L.M.:

• She arrived on time for visits and was prepared for them;
• She was well-groomed and appropriately dressed;
• She could redirect the children’s behaviour;
• She met the children’s physical needs;
• She engaged with each child;
• She set boundaries for the children’s behaviour;
• She problem-solved;
• She could settle down the children;
• She offered praise to the children;
• She managed safety concerns;
• She received support from J.M. to meet the children’s needs;
• She shared responsibility with J.M. for the children’s care;
• She got along reasonably well with the children’s foster parents and with the Peel CAS personnel.

[16] Following the hearing, Dunn J. reserved his decision on the motion for summary judgment. He released his decision on January 30, 2018, granting the Orders the CAS sought, making all three children Wards of the Crown with no access by J.M. or L.M.

[17] L.M. obtained a Legal Aid Ontario (“LAO”) appeal opinion certificate for three hours, and consulted a lawyer, Jessica Gagné. Ms. Gagné accepted the certificate, wrote an opinion letter to LAO, and requested funding for the appeal. On February 26, 2018, Ms. Gagné filed L.M.’s Notice of Appeal within the 30 day timeline. She followed up with LAO in early March and was told that the funding decision could take up to 20 business days.

[18] On March 22, 2018, Ms. Gagné received the CAS’s motion dated March 19, 2018, to dismiss L.M.’s appeal, which had been served on L.M. herself, as Ms. Gagné was not yet counsel of record. On the same day, Ms. Gagné called LAO’s Lawyer Service Centre to follow up her appeal opinion letter and request for funding. She was advised that the LAO had made a decision on March 16 to deny funding, and had mailed a letter to Ms. Gagné notifying her.

[19] As Ms. Gagne had not yet received the letter notifying L.M. of the decision, LAO faxed a copy to her that day. On the same date, Ms. Gagné appealed the LAO District Office decision to the LAO Provincial Office. On March 22, 2018, Ms. Gagné notified Peel CAS of L.M.’s appeal of LAO’s decision, and they advised her that they could not withdraw their 14B motion to dismiss L.M.’s appeal, which had already been filed. Ms. Gagné, on behalf of L.M., made a cross-motion seeking the dismissal of the CAS’s motion and costs.

[20] On April 13, 2018, L.M. received a letter from the LAO’s Provincial Office denying her appeal of the request for funding. She tried to take photos of the letter and send it to Ms. Gagné, but was unable to do so. Ms. Gagné called the LAO Lawyer Service Centre herself on Monday, April 16, 2018 for a copy of this letter as she had not received it. The letter was faxed to her that day.

[21] Ms. Gagné brought a motion on behalf of L.M. for state-funding on April 18, 2018, within two days of receiving notice that L.M. had exhausted her rights of appeal within LAO. Her motion was initially returnable May 8, 2018, as required by the Courts of Justice Act for Notices of Constitutional Question, and on May 8, 2018, the motion was adjourned on consent to May 31, 2018, as the Office of the Children’s Lawyer had inadvertently not been served.

[22] L.M. moved, pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, for an order staying the CAS’ motion to dismiss L.M.’s appeal until state-funded counsel was provided for L.M. by the Attorney General of Ontario (“A.G.”), a declaration that L.M.’s s. 7 rights would be violated by denying her such funding, and an Order for state-funded counsel for her appeal, at LAO rates, including funding for the transcript and other disbursements associated with her appeal or, in the alternative, an order appointing Ms. Gagné as Amicus Curiae to assist the court in the matter, to be paid at LAO, and an order for directions as to the hearing of the motion.

[23] The parties agreed that the only issue the Court needed to address was whether there was sufficient merit in L.M.’s appeal to justify state-funded counsel. L.M. submits that there are 13 appealable errors on the face of Dunn J.’s reasons; the Peel CAS submitted that none of the alleged errors have merit. The non-party A.G. and Office of the Children’s Lawyer took no position on the motion, and participated only to assist the court in applying the relevant legal test.

[24] Counsel agreed, and this Court found, that L.M. had satisfied all four requirements that the Supreme Court of Canada had articulated in New Brunswick (Minister of Health and Community Services) v. G.(J.), (1999), for motions for state-funded counsel at first instance. [1] That is, she had demonstrated that the interests at stake in the proceeding engaged L.M.’s s. 7 rights, that L.M. could not receive a fair hearing without counsel, that she had applied for legal aid and exhausted all avenues for otherwise obtaining legal assistance, and that she was unable to afford a lawyer.

[25] Counsel agreed that at the appellate level, the test for receiving state-funded counsel was varied slightly pursuant to the unreported decision of Children’s Aid Society of Toronto v. Linda Guest, (2014), in which Backhouse J. had held that when applying the test laid out in G. (J.), the Court must also be satisfied that the appeal has merit. [2] Backhouse J. stated:

5. The merit threshold cannot be a high onus, given that the transcript is not available. In any event, if a detailed review of the transcript were necessary to determine the merits issue, there would be little point in not proceeding with the appeal.

[Emphasis added.]

The addition of a merit consideration to the G.(J.) test at the appellate level mirrors the jurisprudence in other jurisdictions. [3]

[26] In order to establish merit, the applicant did not need to show that she has a strong case. She needed only to demonstrate that her application has at least some chance of success or some basic merit. While the merit consideration is not onerous, it must be sufficient to address the underlying reasons that warrant the addition of a merit consideration to the test, namely:

(a) that having regard to finite judicial resources, maintaining access to justice for litigants with meritorious cases requires that unmeritorious appeals not be funded;

(b) that it is not in the best interests of the children who are the subject of proceedings to have a CAS plan for adoption placement prolonged by an appeal that has little chance of success and that would keep the children in custody, negatively impacting their ability to find a placement;

(c) that accountability for the use of finite public funds requires that such resources be reserved for meritorious cases; and,

(d) that providing funding for an appeal that has no real chance of reuniting parent and child does not further the parents’ or the children’s right to security of the person. [4]

Nevertheless, the Court has noted in previous decisions that the merit requirement imposes a low threshold.

[27] After hearing counsel’s arguments and reviewing their material, this Court held that L.M.’s appeal had sufficient merit to entitle her to state-funded counsel to assist her. In its reasons, the Court focused on four of the errors that Ms. Gagné had argued were evident on the face of Dunn J.’s decision, namely:

a) Failure to conduct a status review in relation to R.D., or to apply the test applicable to such a review, or to make a finding as to whether R.D. was in need of protection.

[28] The Court noted that Dunn J. had made no finding as to whether R.D., who was seven years old when the motion was argued, was still in need of protection. L.M. had consented to such a finding only with regard to the youngest two children.

[29] Dunn J.’s reasons had focused on L.M.’s inability to supervise all three children at the same time. He had not articulated the applicable test or stated that he was engaged in a Status Review, and had not adverted to the statutory objectives of preserving the autonomy and integrity of the family unit, or of providing child protection services in the least restrictive and disruptive manner. His reasons did not disclose that he had sought to strike a balance between R.D.’s best interests and the need to prevent unwarranted state intervention in family life. He had not pointed to evidence that supported a finding that L.M. and her husband were unable to care for R.D. alone. This Court found that it was arguable that Dunn J.’s reasons did not reflect the approach to be taken in a Status Review Application. The Court held that this was necessary, especially because L.M. had cared for R.D. for a substantial period of time, with Society supervision, after the original protection order was made.

b) In finding that L.M.’s children could not remain in care any longer in accordance with s. 70 of the Act, Justice Dunn had failed to consider the option of extending the existing Order for six months.

[30] The Court noted that a six month extension of the period permitted under subsection 70(1), and available under subsection 70(4) of the Child and Family Services Act, R.S.O. 1990, c. C.11, would have been a less onerous disposition in this case, and that Dunn J. had arguably erred in law in failing to consider subsection 70(4) or the option that it afforded to him.

c) Failure to apply properly the test of whether there was a genuine issue for trial as to whether L.M. should have access to the children if they were made Crown wards, by imposing the onus on L.M. that she would have at trial at the stage of the motion for summary judgment.

[31] Justice Dunn correctly articulated that the test to be applied on a motion for summary judgment is whether there is a genuine issue requiring a trial. However, this Court found that after articulating the test, Dunn J. had made his own findings on the access issues, rather than determining whether they raised a genuine issue requiring trial.

[32] This Court found that it was arguable that in making the findings he did, Dunn J. had imposed the onus on L.M. that s. 59(2.1) imposed on her at trial, to prove that an access order would not impair the children’s opportunities for adoption, and had failed to impose the onus on the Society, as was required in a motion for summary judgment, to establish that there was no genuine issue for trial regarding access. The Court noted that this approach ran contrary to the prevailing jurisprudence that in motions for summary judgment granting Crown wardship, orders precluding access are only to be made in rare and exceptional cases

d) Taking judicial notice of the effect that access to the children would have on the children’s opportunities for adoption

[33] This Court noted that Dunn J. based his finding that L.M. had failed to demonstrate that access would not impair the children’s future opportunities for adoption on the fact, as he stated, that “I can take judicial notice that many if not most adoptive parents would not want relations with a birth parent, and would not proceed with an adoption if there was an access order.”

[34] The Court noted that the determination that access would impair the children’s opportunities for adoption must be made based on evidence, as where the biological parents have a record of being difficult to deal with and not supportive of foster placements, and not on speculation. [5]

[35] The Court found that it was arguable that the fact of which Dunn J. stated he was taking judicial notice did not meet the legal test for facts capable of such notice, in that it was not so notorious or generally accepted as not to be the subject of debate among reasonable persons, and was not capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

[36] The Court additionally found that it was arguable that the fact of which Dunn J. took judicial notice did not meet the judicial test to be applied where a fact was close to being determinative of the issue to be decided, especially on a motion for summary judgment.

[37] For these reasons, this Court found that to deny L.M. state-funded counsel for her appeal would be contrary to the principles of fundamental justice and would breach her rights pursuant to s. 7 of the Canadian Charter of Rights and Freedoms. It therefore stayed further proceedings until such time as state funded counsel was provided by the A.G., and ordered the A.G. to provide such counsel, and funding for the transcript and other reasonable disbursements associated with the appeal.

[38] The Court directed that if the parties were unable to agree on the costs of the motion, they could submit written arguments, which they subsequently did.

POSITIONS OF THE PARTIES

[39] L.M. seeks her costs of the motion from March 22 to May 16, 2018, on a partial indemnity scale, in the amount of $6,812.15, and costs from May 17, 2018, onward on a full recovery basis, in the amount of $4,921.15, plus disbursements of $748.85. She relies on the favourable outcome she achieved in her motion for state-funded counsel, on the lack of merit in the CAS’s position in opposing the motion, and on the CAS’ failure to accept an Offer to Settle that L.M. served on May 17, 2018.

[40] The CAS and A.G. oppose L.M.’s claim for costs against the Society and argue that the claim should be dismissed. The CAS relies on the fact that there is no presumptive entitlement to costs based on a favourable outcome in a child protection case. It argues: “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 these professionals exercise good faith, due diligence, and reason in carrying out their statutory mandate.” It submits that the CAS, which has a statutory mandate to protect the interests of children, should not be sanctioned by a costs order for an error in judgment or where the nature of the case makes it difficult to weigh and balance the evidence and predict the legal outcome.

[41] The A.G., although it did not take a position in L.M.’s motion for state-funded counsel, now takes a position that an appropriate costs order should be between $1,635 and $2,180, representing 15-20 billable hours at the LAO rates, in keeping with “the A.G.’s standard procedure for compensating counsel for bringing successful applications for public funding.” In the alternative, the A.G. submits that L.M.’s costs should be significantly reduced. The A.G. relies on the principle, articulated in the context of Rowbotham applications in criminal cases, that while courts can appoint publicly funded counsel, the constitutional separation of powers “suggests that it lacks the jurisdiction to set the rates for such counsel.”

ANALYSIS AND LAW

a) General principles

[42] The authority to award costs in child protection proceedings is derived from s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. It provides:

131(1) Subject to the provisions of an Act or rules of court, the costs of, or incidental to, a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[43] Since 1999 the exercise of that discretion has been guided by the Family Law Rules, O. Reg. 114/99, and specifically Rule 24. In family law cases generally, as in civil cases, a successful party is presumed to be entitled to his or her costs, pursuant to Rule 24(1) of the Family Law Rules. The preferable approach in family law cases is to allow costs on a full recovery basis, provided the successful party acted reasonably and the costs claimed are proportional to the issues and results and were within the range that the opposing party should have expected if unsuccessful in the motions. [6]

[44] A litigant whose conduct was reasonable and who is successful in a proceeding should not be required to bear the costs of having their rights tested. While in civil and family law proceedings generally, a successful party is presumptively entitled to costs, [7] this presumption does not apply to child protection cases and to government agencies. [8] Rule 24(1), (2) and (3) provide that the presumption governing all other cases, that a successful party is entitled to the costs of a court case, does not apply in a child protection case or to a party that is a government agency. The rules define a “government agency” to include a children’s aid society: see subrule 2(1).

[45] Thus, 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. 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 an unfair and indefensible manner. A society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it difficult to weigh and balance the evidence and predict the outcome. That said, the society is not exempt from costs, which may be imposed on it where it has acted unreasonably. [9] If a society acts unreasonably in the conduct of its litigation, it should enjoy no special protection as to costs. [10]

b) Applying the legal principles to the facts of this case

[46] I now turn to consider how the general principles that apply to determining costs in a child protection case apply to the present case, which involved a motion for state funded counsel for an appeal from a summary judgment granted to the CAS in a child protection case.

[47] In Hryniak v. Mauldin, (2014), the Supreme Court of Canada encouraged the use of Ontario’s summary judgment rule to resolve cases in an expeditious manner if doing so could achieve a fair and just adjudication. Speaking for the court, Karakatsanis J. included the following:

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. …

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect the modern reality and recognize that new models of adjudication can be fair and just. … . [11]

[Emphasis added.]

[48] The primary objective of the Family Law Rules is to enable the court to deal with cases “justly”: subrule 2(2). Dealing with a case “justly” has four specifically defined components, set out in subrule 2(3):

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with a case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[49] Historically, costs orders were designed to achieve four principal purposes, namely, (a) to indemnify successful litigants; (b) to encourage settlement; (c) to discourage frivolous actions and defences; and (d) to sanction unreasonable conduct of the litigation. [12]

[50] The Court of Appeal for Ontario has recognized access to justice as a fifth objective that the court should seek to attain when awarding costs, especially in cases involving a Charter claim or other matter of general public importance. In 1465778 Ontario Inc. v. 1122077 Ontario Ltd., (2006), when awarding costs to pro bono counsel, Feldman J.A. stated on behalf of the Court:

[45] I agree with the submission of [Pro Bono Law Ontario] that the list of the purposes of costs awards should now include access to justice as a fifth consideration. It is clear that the profession sees the availability of costs orders in favour of pro bono counsel as a tool to potentially reduce the necessary financial sacrifice associated with taking on pro bono work and to thereby increase the number of counsel who may be willing and able to accept pro bono cases. This will facilitate access to justice.

[46] Because of the discretion accorded to judges to award and fix the quantum of costs (subject to s. 131 of the Courts of Justice Act, the Rules of Civil Procedure and the Supreme Court's decision in Walker), they have the necessary scope to respond to any potential unfairness that may arise as a result of the parties' unequal abilities to pay costs, and the fact that the pro bono party is not paying a lawyer. They also have the flexibility to craft a costs order that addresses the potential unfairness where the circumstances, including all the other relevant factors, call for it.

[47] Where a case is brought to assert a Charter claim or other matter of general public importance, different considerations may apply when deciding whether to award costs in favour of the pro bono party. In those cases, for example, it may be appropriate for the court to consider potentially insulating the pro bono party from exposure to costs, or limiting the party's exposure, in order to facilitate the resolution of an important public interest issue by the court. The principles that will be applied in this type of litigation will also develop as the cases arise.

[48] The legal profession in Ontario has a history of commitment to ensuring access to justice and providing pro bono services through its members. That history is reflected in today's litigation environment where it is both appropriate and necessary that costs awards be available to successful pro bono litigants in ordinary private law cases both at the end of the case and on interlocutory motions. The principles that will guide the exercise of the court's discretion in deciding when such costs will be awarded should be developed over time on a case-by-case basis. [13]

[Emphasis added.]

[51] The courts of other provinces, also, have recognized access to justice as one of the objectives to be served by a costs award. [14]

[52] Access to justice can be served by the use of the summary judgment rule to resolve cases in an expeditious way but the Court must be vigilant in ensuring that it is employed only where it can achieve a fair and just adjudication. Where an appeal from a summary judgment has merit, the Court must ensure that the appeal is conducted fairly. A failure to do so can defeat the very purpose of access to justice that the summary judgment process is designed to achieve.

[53] In a case where a summary judgment discloses arguable errors of law, depriving a litigant of the ability to have her appeal determined fairly would undermine access to justice. In the present case, the CAS and A.G. acknowledged that L.M. could not receive a fair hearing in her appeal without counsel, and that she could not afford counsel without state-funding. In addition, L.M. made a reasonable Offer to Settle before the motion for state-funded counsel was heard.

[54] A failure to accept a reasonable Offer to Settle is, on its face, a form of unreasonable conduct. Rule 18(14) of the Family Law Rules provides, in this regard:

18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[55] In Children’s Aid Society of Hamilton v. Si. R., (2003), the mother served an Offer to Settle within the meaning of Rule 18(14) in that acceptance of it would have resulted in an outcome more favourable to the Society than the outcome of the trial. The Court, upon finding that the child was not in need of protection, stated:

[12] Generally, subrule 18(14) imposes a presumption because of the clear intention of the rule to promote settlement through early and reasonable offers. I am satisfied, as others have been, that the presumption is so strong as to create “near automatic” cost entitlement but it is not an automatic result because of the wording in the subrule – “unless the court otherwise orders.”

[15] Having found the above, what is the result in this case for the mother in fling an offer that was more favourable to the children’s aid society than the outcome of the case? In this case, the onus on the children’s aid society increases. It must satisfy me that the facts uncovered in its investigation compelled it to pursue a finding of protection because of its mandate; otherwise, it will not be protected on the costs pertaining to the determination of substantive issues. [15]

Liability for costs

[56] In the present case, I find that the CAS is liable for L.M.’s costs as she met the four-fold test established in G.(J.) for such a motion and it was patently clear that there was sufficient merit in her appeal to justify permitting it to proceed. It was unreasonable, in those circumstances, for the CAS to oppose her motion for state-funded counsel when it was acknowledged that she could not afford counsel and that, without counsel, her appeal could not be determined fairly.

[57] As noted above, the CAS is not exempt from costs in cases where it has acted unreasonably. This is particularly so in a motion like this one, where the principal issue was not whether a child is in need of protection but whether L.M.’s constitutional right to security of the person would be infringed by depriving her of access to counsel, without which a fair hearing of her appeal was not possible.

[58] The Canadian Charter of Rights and Freedoms provides:

52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [16]

[59] The issue of whether L.M.’s appeal was devoid of merit was a factor to considered in determining whether her appeal should proceed, it having been conceded that she had satisfied the four-part test which the Supreme Court articulated in G.(J.). As noted above, the merits test was introduced to safeguard the public’s access to justice by ensuring that finite public resources were not expended on an appeal that has no merit. It is conceded that the test imposes a low threshold. It was a foregone conclusion that this appeal met that threshold and it was unreasonable for the CAS to argue that it did not.

[60] As noted above, access to justice one of the principal objectives served by a costs order. A claim for costs in a motion for state-funded counsel in a child protection case must be considered in this context; that is, whether it was reasonable for the CAS to have employed scarce public resources to oppose the motion, in the face of facts which the Court has found engaged her constitutionally guaranteed right to state-funded counsel.

[61] The Court has determined that L.M.’s appeal has sufficient merit that providing state-funded counsel to her will not undermine access to justice by employing limited public resources to ensure that the appeal is determined fairly. The CAS has not satisfied the Court that it served the objective of access to justice for it to oppose the motion. As it was not reasonable for it to do so, a costs order against it will serve the objective of preserving access to justice by sanctioning its unreasonable conduct and encouraging settlement of such motions in the future.

[62] This not a case, such as Z.B. v. Children’s Aid Society of Toronto, (2004), that involved novel issues, where, for that reasons, it is not appropriate to order costs. [17] This was a case in which the issue was the same as in other motions for public funding. The CAS and, ultimately, the Court, was called upon to determine whether L.M. met the four-fold requirements set out in G.(J.)., which the CAS acknowledged at the outset that she did, and whether, secondarily, she had met the low threshold of showing that her appeal was not without merit, which this Court found she had done.

[63] The fact that LAO refused funding to L.M. is not evidence that denying her access to state-funded counsel would be reasonable. The correctness or reasonableness of LAO’s decision was not an issue in L.M.’s motion. The tests in G.(J.) required L.M. to establish that she was refused Legal Aid funding and had exhausted her avenues of appeal, not that LAO’s refusal of funding was unreasonable. LAO’s decision was based on its own considerations. Its refusal may not have turned on the merits of L.M.’s appeal, and no inference regarding its merits can be drawn from LAO’s refusal of legal aid.

[64] The CAS argues that costs should not be awarded against it because the Office of the Children’s Lawyer, Legal Aid Ontario, and the Attorneys General of Ontario and of Canada were also parties to the motion. I do not agree. It was the CAS who made the motion for summary judgment and who opposed L.M.’s appeal from the summary judgment. If the CAS did not oppose L.M.’s appeal, L.M. would have no need to apply for state-funded counsel. It is the CAS who opposed L.M.’s motion for funding. The A.G., who would provide the funding if L.M. was successful in her motion, took no position. The CAS did take a position. If its position was unreasonable, as it was, it should be accountable for it in costs.

[65] The CAS takes issue with L.M.’s reliance on the fact that it did not accept her Offer to Settle. It argues that it cannot reasonably be concluded that if it had accepted the Offer, the motion would have proceeded on consent and no motion would have been required. Again, I do not agree. The A.G. did not take a position on the motion. It might have been called on to do so had the CAS accepted the Offer. However, there is no reason to suppose that if the CAS had accepted the Offer, the A.G., having taken no position on the motion to that point, would have changed its position and opposed the motion, since L.M. had satisfied the four-fold test in G.(J.). The only issue that remained was whether there was merit in the appeal. If the CAS had conceded this point, it is highly unlikely that the A.G., who was not the responding party in the appeal, would not have done the same.

[66] The CAS argues that, “An order for costs against the Society would be to ignore the prevailing case law that costs should not be awarded against a Society and to order costs to “incentivize” counsel to take on cases at the appellate stage that have been determined by a state agency to have no merit would be incorrect in law.” I disagree with this argument for two reasons:

(a) No inference should be drawn from a “state agency’s determination that a case has no merit”. To hold otherwise would tilt the scales beyond the onus that any appellant must face in an appeal. To ascribe a presumption of correctness to a determination made by a state agency would be patently unfair to appellants in child protection cases and, indeed, in any case in which a court is called upon to determine a dispute between an individual and a state agency.

(b) L.M.’s lawyer, in arguing in support of an order for costs at her normal hourly rate, and for the number of hours reasonably spent, rather than at the rate LAO sets, and for the number of hours LAO allows, speaks to the issue of “incentivizing lawyers” to undertake such appeals, with the following observation, which I adopt:

As this Honourable Court noted in the June 11, 2018, reasons for judgment, this motion was only the second known motion in the province of Ontario for state-funding of a child protection appeal. This is so despite the fact that it has been over twenty years since G.J. was released by the Supreme Court of Canada. This is a problem. With only the possibility of a favourable costs order, a lawyer who undertakes one of these motions does so at his or her own expense, paying for all disbursements out of his or her own pocket (separate and apart from the number of hours that go into such a motion). The only upside, if the A.G.’s position is adopted, would be the possibility of being paid for the motion at Legal Aid rates (if successful), and for however many hours Legal Aid Ontario chooses to pay the lawyer for. The actual number of hours paid by LAO would never be known by counsel in advance. And if not successful, then the lawyer loses financially. The reality is that, as the past twenty years have shown, it is next to impossible to find a child protection lawyer who will bring a G.J. motion for state funding of an appeal. Judicial recognition that, in appropriate circumstances, counsel may be compensated adequately for their time and effort if successful on the motion could go a long way in incentivizing the bar to advance meritorious cases, which is in the public interest.

The scale of costs to be paid

[67] L.M. seeks her costs to the date of her Offer to Settle on a partial indemnity scale, and her costs from the date of her Offer onward on a substantial indemnity scale. The only issue regarding the scale of costs is therefore the effect of the CAS’ failure to accept L.M.’s Offer.

[68] The Family Law Rules do not explicitly provide for costs on either a partial or substantial indemnity scale. Rule 18(14), dealing with the costs consequences of a failure to accept an Offer to Settle, instead differentiates between “costs” and “full recovery of costs”. In a family law case, the court need not find “special circumstances” before ordering costs on a full recovery basis. [18] It has a range of costs awards open to it, from nominal to just short of full recovery.

[69] In Sims-Howarth v Bilcliffe, (2000), Aston J. held that the two traditional scales of costs are no longer an appropriate way to quantify costs under the Family Law Rules. [19] Aston J stated that, having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery, having regard to the factors set out in Rule 24, without any assumptions about categories of costs. This characterization of costs under the Family Law Rules was approved by the Court of Appeal for Ontario in C.A.M. v D.M. [20]

[70] In Berta v. Berta, (2015), the Court of Appeal stated:

In Biant v. Sagoo (2001), 20 R.F.L. (5th) 284 (Ont. S.C.), the court considered the costs award scheme under the rules and commented, at para. 20:

[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe a discretion under Rule 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.

This court has repeatedly endorsed the Biant court’s approach to the determination of costs in family law disputes. [21]

[Emphasis added, citations omitted.]

[71] Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectations as to what costs they may face if they are unsuccessful. In appropriate circumstances, unreasonable conduct will result in a higher award of costs. In Perri v. Thind et al., (2010), Henderson J. granted leave to appeal to the Divisional Court from a costs award that was a marked departure from the normal or routine costs made in motions court. [22] In doing so, he stated that costs orders are not designed mainly to be a punishment, but acknowledged that costs, when awarded on a higher scale, can serve to express the court’s disapproval of unreasonable conduct. [23]

[72] Failure to accept a reasonable Offer to Settle is, in itself, unreasonable conduct which presumptively entitles the litigant who has achieved a more favourable outcome in the motion to her costs on a higher scale. [24]

The amount of costs to be paid

(i) Factors to be considered

[73] Rule 24(11) of the Family Law Rules lists the factors which a court should consider in quantifying 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.

[74] I will now turn to consider each of these factors in relation to L.M.’s claim for costs.

(a) Importance, Complexity and Difficulty

[75] The motion was of great importance to L.M., as it was acknowledged that her appeal could not be determined fairly unless she had counsel and she had exhausted all other avenues for obtaining counsel. An unfavourable outcome of the motion would have deprived her of a fair hearing of her appeal from the decision to deprive her of access to her children.

[76] The motion was complex, as it required a detailed analysis of Dunn J.’s reasons for granting summary judgment, and the law governing motions for state-funded counsel. Because counsel were able to find only one other opposed motion or state-funded counsel in the context of appeal, they were required to examine the case, in large part, by reference to first principles rather than by applying a well-established body of jurisprudence.

(b) Reasonableness of Each Party’s Behaviour

[77] In the normal course, costs are awarded to a successful litigant on a partial indemnity scale, representing approximately 60% of the successful litigant’s total legal fees and disbursements; however, the court has the discretion to order costs to be paid on a substantial indemnity scale (partial indemnity costs x 1.5 = 90%) [25] or, especially in cases where there has been unreasonable conduct, on a full recovery basis. [26]

[78] Rule 24(11)(b) explicitly recognizes that costs may be used to express the court’s disapproval of a litigant’s unreasonable conduct. In any event, Perkins J. in Biant v. Sagoo, (2001), held that “the preferable approach in family law cases is to have cost recovery generally approach full recovery so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.” [27]

(c) The lawyer’s rates

[79] L.M. claims an hourly rate of $325.00 for her lawyer, Jessica Gagné, who was called to the Bar of Ontario in 2014, and had practiced Family Law for four years when L.M.’s motion was heard.

[80] The “Information for the Profession” bulletin, from the Costs Sub-Committee of the Rules Committee (“the Costs Bulletin”) [28], suggests maximum hourly rates (on a partial indemnity scale) of $225.00 for lawyers, such as Ms. Gagné, with less than 10 years’ experience.

[81] Aitken J., in Geographic Resources Integrated Data Solutions Ltd. v. Peterson, allowed the Defendants/Respondents’ costs of an appeal from a Master’s order on a partial indemnity scale in the amount their lawyer had charged. [29] She rejected the Plaintiffs/Appellants’ argument that the Respondents should be awarded less than they had been charged because the parties had agreed that costs would be paid on a partial indemnity scale. Aitken J. began by considering the Costs Bulletin. She considered adjusting the Costs Subcommittee’s hourly rates for inflation, as Smith J. did in First Capital (Canholdings) Corp. v. North American Property Group, but the unadjusted rates of the lawyers in her case were only slightly less than the actual fees they charged, so she used their unadjusted rates.

[82] Although Geographic Resources Integrated Data Solutions Ltd. v. Peterson was a civil action, the approach that Aitken J. took in that case applies equally in the family law context. The court adjusts the hourly rate, based on the Costs Bulletin, or the resulting fees, to reflect unique features of the case, including the complexity of the proceeding, the importance of the issues, and the other factors set out in Rule 24. If an excessive amount of time was spent, or too many lawyers worked on the file, the court reduces the resulting amount of fees accordingly.

[83] Aitken J. makes it clear that the starting point in arriving at an appropriate hourly rate when fixing costs is the Costs Bulletin, not the actual hourly rate the lawyer charged her client. The actual rate charged is irrelevant, except as a limiting factor, in preventing the costs awarded from exceeding the actual fees charged, in keeping with the principle of indemnification. The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same place.

[84] The Costs Bulletin, published in 2005, is now dated. It is therefore appropriate to make an adjustment to the rates suggested in the Costs Bulletin based on inflation. Smith J. took this approach in First Capital (Canholdings) Corp. v. North American Property Group. [30]

[85] Ms. Gagné’s maximum partial indemnity rate of $225.00 in 2005 was the equivalent of $279.63 in 2018, when the motion was argued, according to the Bank of Canada’s online Inflation Calculator. I round that rate up to $280.00. Ms. Gagne claims an hourly rate of $227.50 (70% of her actual rate of $325) on a partial indemnity scale. This rate is 19% lower than the maximum of $280.00 per hour that she is entitled to claim on a partial indemnity scale. Ms. Gagné’s hourly rate, on a substantial indemnity scale, using the multiple of 1.5 prescribed by Rule 1 of the Rules of Civil Procedure, was $420.00. L.M.’s actual hourly rate of $325.00 is therefore 23% less than the maximum rate she could claim on a substantial indemnity rate, and I find the rate to be reasonable.

[86] In Mantella v. Mantella, (2006), Corbett J. noted that an award of costs is designed to indemnify, and that the amount should therefore not exceed the amount charged to the client. [31] The Divisional Court, in Geographic Resources Integrated Data Solutions Ltd. v. Peterson, adopted Corbett J.’s analysis in Mantella, holding that it was not trumped by earlier jurisprudence from the Court of Appeal. [32] Ms. Gagné’s hourly rate of $325.00, which is less than the maximum rate she could claim on a substantial indemnity scale, is conservative, especially in the present case, where L.M. is arguably entitled to her costs on a full recovery basis.

(d) Time reasonably spent

[87] Ms. Gagné spent a reasonable amount of time in the preparation and presentation of this motion. She spent a total 26.5 hours before serving L.M.’s Offer to Settle and an additional 13.4 hours after serving the Offer. She was required to draft L.M.’s initial Notice of Motion, her supporting affidavit, and her Factum. She corresponded with Legal Aid Ontario and reviewed its file, reviewed Dunn J.’s reasons to identify the grounds of appeal, consulted with trial counsel, drafted and amended L.M.’s Notice of Appeal and Factum and prepared a Brief of Authorities. She amended the Notice of Motion, drafted and served L.M.’s Offer to Settle and Bill of Costs and drafted the Order for state-funded counsel.

[88] While the A.G. argues that the costs claimed by L.M. are excessive, neither the A.G. nor the CAS tendered a Costs Outlines of their own, or a Bill of Costs setting out the time their lawyers spent on the motions. This Court has held, on more than one occasion, that when one party attacks another’s costs as excessive, but does not put its own dockets before the court, the attack “is no more than an attack in the air.” [33]

[89] Based on my observation of the oral argument and motion material, I find that the time spent on behalf of L.M. was reasonable and necessary.

(e) Expenses properly payable

[90] The disbursements claimed by L.M., in the amount of $662.70, were conventional ones that were necessarily made. They consisted of the fees of process servers and amounts spent for printing/binding and transportation. The disbursements are not challenged and will be allowed at the amounts claimed.

(f) Other Relevant Matters - proportionality

[91] I have considered the proportionality of the costs that L.M. has claimed. The principle of proportionality was added to the Rules of Civil Procedure by the amendment of Rule 1.04, which I apply by analogy to the present motion as there is no equivalent provision in the Family Law Rules. Rule 1.04 directs that the Rules be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Subrule 1.1 provides:

c) Proportionality

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[92] Ms. Gagné did not “over-lawyer” the motion. The time she spent was reasonably necessary to prosecute the motion and to assert L.M.’s right to state-funded counsel. The costs claimed are proportional to the interests that were at stake in the motion, which were substantial.

(c) What is fair and reasonable

[93] I must, at this point, step back and examine the overall award with a view to determining whether it is ‘fair and reasonable’ for the kind of matter involved. In making this determination, I take into account the reasonable expectation of the parties concerning the amount of costs.

[94] The A.G. argues that L.M. should not be permitted to recover her costs based on Ms. Gagné’s actual hourly rate, having regard to the fact that she seeks funding for the appeal itself on Legal Aid rates. I disagree. A Legal Aid client "stands before the court in exactly the same position as any other litigant". [34]

[95] With their recognition of the multiple objectives served by costs awards, and the making of such awards in favour of litigants represented by pro bono counsel and legally aided clients, courts in Canada have abandoned their restriction of costs awards to the fees actually paid to a lawyer in cases where the lawyer is paid at Legal Aid or other discounted rates.

[96] The Legal Aid Services Act, 1998, S.O. 1998, c. 26 provides:

46(1) The costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services.

[97] Wein J. reviewed the jurisprudence in Ramcharitar v. Ramcharitar, (2002). Justice Wein stated:

There is no punitive aspect in such an award of costs; the party paying the costs simply pays the same amount as they would if the client were not legally aided. In fact, to hold otherwise would grant an inadvertent windfall to the party fortunate enough to only have to pay costs to an opposing party on Legal Aid, since the rate would be accordingly reduced. [35]

[98] Henderson J. recognized this implication of the broadening of the objectives of costs awards in Zeleny v. Zeleny. [36] I agree with Henderson J. that imposing an upper limit on the costs a client can recover in a case where a lawyer is acting pro bono, or at a Legal Aid or other discounted rate, would reduce the opposing party’s incentive to settle.

[99] There is, finally, an element of behaviour modification to a costs order serving to encourage a change in attitude from a “litigate with impunity” mindset. [37] In Mooney v. Fast, Curtis J. made the following observations, which I adopt:

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Heuss v. Sarkos, 2004, Ont. Ct., supra, para. 20.

Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour: Heuss v. Sarkos, 2004, Ont. Ct., supra, para. 20.

One of the purposes of costs is to change behaviour. The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2.

Unless courts discourage this behaviour, it will continue and increase. Orders for costs are one way to discourage this behaviour. [38]

CONCLUSION AND ORDER

[100] For the foregoing reasons, it is ordered that:

1. The Children’s Aid Society of the Region of Peel shall pay L.M.’s costs of the motion, fixed in the amount of $12,482.49, consisting of the following:

Fee Period	Time Billed	Hourly Rate	Fees
March 22 to May 16, 2018	26.5 hours	$227.50	$6,028.75
May 17, 2018 onward	13.4 hours	$325.00	$4,355.00
SUBTOTAL			$10,383.75
H.S.T (Fees)			$1,349.89
Disbursements			$662.70
H.S.T. (Disbursements)			$86.15
TOTAL			$12,482.49

2. These costs shall be payable forthwith, with 3% post-judgment interest from today’s date.

Price J.

Released: November 29, 2018