2020 ONSC 5243

COURT FILE NO.: FC-20-429

DATE: 20200901

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dnaagdawenmag Binnoojiiyag Child and Family Services, Applicant

AND:

A.D.-M. and D.W., Respondents

BEFORE: The Honourable Mr. Justice J.P.L. McDermot

COUNSEL: Thomas Milne, for the Applicant

Alayna J. V. Woodley, for the Respondent, A.D.-W.

Matthew A. Giesinger, for the Respondent, D.W.

Christopher Severn, for the Maternal Grandmother, K.D-W.

HEARD: By Written Submissions

COSTS ENDORSEMENT

[1] On June 24, 2020, I heard a motion for the temporary care of the children in this matter, T.W. and A.W. The major participants in this motion were the agency, Dnaagdawenmag Binnoojiiyag Child and Family Services (“Dnaagdawnmag” or “DBCFS”), which sought the children to remain in care, and A.D.-M. who is the mother of the children and K.D.-M. who is the maternal grandmother of the children. In addition, the father of the children, D.W. made submissions that the children should be placed in his care.

[2] Although much of the hearing concerned the issue of whether the children would go into the care of K.D.-M. rather than DBCFS and D.W., K.D.-M. had also brought a motion to be named as a party to the proceedings, in which she was successful.

[3] The result on the latter motion was largely a foregone conclusion because of the set of facts which surrounded the apprehension. At that time, because the children were in K.D.-M.’s care through a Voluntary Service Agreement drafted by DBCFS, K.D.-M. qualified as a parent within the definitions contained in the Child, Youth and Family Services Act[^1] (CYFSA) and that statute requires all “parents” to be named as parties in the proceeding. Notwithstanding this, DBCFS determined that it would backdate the termination of the agreement (which was ineffective in changing the basic facts requiring the maternal grandmother to be named as a party) and then argue that issue without quarter. Effectively, the agency was in breach of the CYFSA by refusing to name K.D.-M. as a party.

[4] Because of all of this, K.D.-M. requests costs of $7,474.95 from DBCFS in respect of the portion of the motion wherein the issue of being added as a party was addressed.

Entitlement to Costs

[5] In a regular proceeding, Rule 24(1) of the Family Law Rules[^2] contains a presumption that a successful party is entitled to the costs of the proceeding. This does not apply, however, where the party against whom costs are claimed is a government agency: see Rule 24(2). The rationale behind this exception, at least in the case of a child welfare agency, is that the agency has a mandate to protect the health and welfare of children and should not be distracted from that goal by the fear of a costs award: see Re S.(D.), 2003 88994 (ON SCDC), [2003] O.J. No. 945 (Div’n’l Ct.).

[6] Unfortunately, Dnaagdawenmag’s resistance to K.D.-M. being named as a party cannot be seen as carrying out the agency’s mandate to protect children. As I mentioned in my endorsement, I was mystified by this worker’s resistance to the maternal grandmother’s involvement in this proceeding. Apart from her failure to avoid conflict with her daughter, there was little evidence that K.D.-M. was a risk to the children who were in issue in this proceeding. It appeared as though the agency had certain goals in mind, which were to either place the children with their mother, A.D.-M., or their father, D.W. The maternal grandmother was not an option, and the agency appears to have seen her addition as a party as an impediment to achieving those goals. That cannot, without further explanation, be seen as achieving the goal of protecting these children from harm.

[7] Under Rule 24(4), apart from the success of the parties, the court is to take into account the “unreasonable behaviour” of the parties in determining the result. That issue is important and this was confirmed in Serra v. Serra, 2009 ONCA 395 wherein the court confirmed:

Modern costs rules are designed to foster 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: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.), at para. 22.

[8] In respect of child protection matters, Chappell J. confirmed in Children's Aid Society of Hamilton v. K.L., 2014 ONSC 3679, [2014] O.J. No. 2860 that bad faith need not be proven to obtain an award of costs against a child protection agency. Instead costs should only be awarded where “the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.” It is to be noted that she excludes an error in judgment from the analysis, stating that “[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.”[^3]

[9] My endorsement makes it clear that there are issues of misconduct on the part of the worker and the agency. The idea of backdating the termination of the agreement was both ineffective and misleading; as mentioned, the backdating of a notice does not change the date that written notice to terminate was actually given as required by the CYFSA. As well, the agency was clearly in breach of the CYFSA in failing to name K.D.-M. as a party. Dnaagdawenmag says that there was a real issue as to whether the grandmother was a “primary” caregiver as opposed to A.D.-M.; however, that is not a factor in the definition of “parent” as set out in the CYFSA. The maternal grandmother had legal custody of the children under a written agreement and was therefore a parent - nothing could be clearer even when the agreement failed after only a week. The agency was therefore obliged to name her as a party but failed to do so.

[10] As well, the conclusion of the worker as to who was the primary caregiver of the child is not necessarily conclusive as to who actually was the primary caregiver. Although the worker clearly took the position that A.D.-M. had been the primary caregiver of the child, the role of the court is to seek the truth as to that position and to circumvent that inquiry by refusing to name the maternal grandmother as a party goes to the issue of unreasonable conduct.

[11] Counsel for DBCFS says that I should take into account the fact that this worker was inexperienced. That may be so; however, the worker has a duty to ensure compliance with the law by the agency and is obviously in a better place to do so than were any of the parties to this proceeding. As well, the worker is the instructing client to counsel in this matter but notwithstanding this, counsel has a duty to ensure compliance with the legislation. The inexperience of the worker is no excuse for questionable litigation conduct.

[12] This issue goes to whether the litigation conduct of the agency can be described as, in the words of Chappell J., “patently unfair” or only an “error in judgment”. As noted above, the latter does not attract costs consequences, while the former would.

[13] In considering the issue of fairness, I note that Chappell J. also stated in K.L. that one of the factors in assessing costs was whether the society “conducted a thorough investigation of the issues in question”; “remained open minded” or was “respectful of the rights and dignity of the children and parents involved in the case”. On all of these issues, I cannot find that the agency fulfilled its mandate of fairness. I had noted that I was mystified as to why the agency was so adamant that K.D.-M. be removed from consideration as a caregiver for these children, and no explanation was ever forthcoming from the agency, neither in argument nor in its materials. This indicates to me that the worker’s mind was very quickly made up, and there was no willingness to consider K.D.-M.’s plan of care or, indeed, even let her into the litigation. The fact that the agency did not follow the clear provisions of the CYFSA which required K.D.-M. to be named as a party indicates to me that the agency did not remain open-minded in its determination of the children’s best interests, or in considering all options which were being placed before the court. In my mind, this goes beyond an error in judgment and moves into the area of procedural unfairness, giving rise to a costs obligation concerning this issue.

[14] On the third issue set out in Serra, the issue of compromise and settlement, the agency did show a bona fide intent in settling the issue as disclosed by the offer of partial participation by the maternal grandmother; that offer showed a willingness to compromise “on the central issue”: see Beaver v. Hill, 2018 ONCA 840 at paragraph 15. However, that offer would only have allowed, under s. 79(3) of the CYFSA, limited participation in the proceedings and the hearing. Although submissions would have been allowed under that section by K.D.-M.’s counsel, the section does not make it clear that she would have been in a position to call evidence, cross-examine witnesses or testify in the proceedings. The limited participation would have only allowed her to take a position in the litigation without being able to call evidence to support that position.

[15] Therefore, I find that the agency is liable to pay the costs of K.D.-M. in respect of the motion that she brought to be added as a party to this proceeding.

Amount of Costs

[16] K.D.-M.’s claim for costs totals $7,474.95 inclusive of HST. Mr. Severn, as counsel for K.D.-M, has carefully gone through his bill of costs and parsed out the portion of the time spent for this motion, and says that, out of the 52 hours he spent on preparing for and arguing this motion, 18.9 hours was attributable to the issue of adding his client as a party to this proceeding.

[17] Mr. Severn claims an hourly rate of $350 per hour based upon his 16 years of litigation experience. Counsel for DBCFS does not take exception to this hourly rate.

[18] Although Mr. Milne states in his costs submissions that the Respondent grandmother is not intent upon collecting full recovery costs, this does not appear to be the case from her costs submissions, which claim full recovery costs of nearly $7,500.

[19] The basis for setting the amount of costs is set out in Rule 24(12) of the Family Law Rules which reads as follows:

(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[20] The major issues raised in this case by Rule 24(12) are proportionality and the time spent by counsel, the offers to settle as well as the behaviour of the parties.

Time Spent and Proportionality

[21] Mr. Severn spent a total of 52 hours in preparation for and argument of the two motions which were before the court.

[22] A temporary care hearing is clearly an important matter. It addresses the care of the children pending trial which may be a lengthy period of time. It also addresses the issue of whether the children should remain in the care of the child protection agency pending trial. Those can raise complicated and difficult issues to resolve and address, especially in the case of a parent who is up against the much greater resources of a Society.

[23] However, the parties agreed that the temporary care hearing would be argued at the same time as K.D.-M.’s motion to be made a party in these proceedings. This was because many of the issues in the case of a temporary care hearing, including the crucial issue of whose care the children were in at the time of the apprehension and the Voluntary Service Agreement, were relevant to both the temporary care hearing and the motion to make K.D.-M. a party to this proceeding. The intent was to reduce the costs and time spent by counsel on the matter.

[24] Notwithstanding this, counsel spent more than 50 hours in total for this motion. I refer to Wildman J.’s statement in in Murphy v. Murphy, 2010 ONSC 6204, 2010 CarswellOnt 8616 (S.C.J.) at para. 20 of the report:

I am assuming that the decision to spend so much money preparing for this motion was Mr. Sapir's rather than his counsel's. Regardless of the outcome of the case, a client is not entitled to direct vast resources to litigation and expect full reimbursement. When the rules use the term "full recovery costs", there is an implied qualification that the costs incurred must be reasonable. There must be some assessment of the most effective use of resources to present the case, and some attempt to approach the matter in a cost-effective manner.

[25] I find that, notwithstanding the importance of the issues before the court, that the total time spent by Mr. Severn in this matter was excessive. He has claimed about a third of that time spent for the motion to add K.D.-M. as a party. Based upon the principles of proportionality, it would have been more reasonable to spend about 30 hours in total on this matter. This would reduce the claim for this motion to about 10 hours under the circumstances, especially when it was clear that K.D.-M. should have been made a party from the beginning according to the provisions of the CYFSA. The claim for costs will be reduced accordingly.

Offers to Settle

[26] Both the Applicant agency and K.D.-M. submitted offers to settle.

[27] K.D.-M.’s offer was simply that she be made a party to the proceeding. This offer reflects the fact that this motion really involved a “yes or no” answer: success or failure left little room in the middle for negotiation. This is similar to the case in Beaver v. Hill, supra, where the court of appeal found that “[t]here was no way of compromising on [the] central issue” and accordingly, this was similarly “not a case where the presence or absence of offers to settle should have played any material role in determining the appropriate quantum of costs.”

[28] I note, however, that these comments in Beaver v. Hill went to the issue of whether the failure to submit an offer was the basis for a finding of unreasonable behaviour under Rule 24(12). That was not the case in the present matter, where both parties submitted an offer. Rule 18 is engaged by the offer of K.D.-M., which complies with Rule 18(14) and was submitted in time. Under Rule 18, the party making the offer is only entitled to full recovery costs from the date that the offer was made. This offer was made on June 15, 2020, and accordingly, based on the Bill of Costs, there is a claim for about 10 hours of lawyer’s time from that date. I note that the claim of the Respondent is for the full amount of time this matter was argued (3 hours) which should be reduced as more than one issue was argued over that 3-hour period of time. As well, I have reduced the time entitlement for this motion by about 2/5ths, which would reduce the total time spent after service of the offer to about 6 hours.

[29] Finally, I note that the offer of the agency was also a bona fide attempt to settle and, although meaningless as it would not have permitted K.D.-M. to submit a plan of care, might have formed the basis for discussions for a compromise solution. It obviously did not, but I also take this into account in setting the amount of costs in this matter.

Parties’ Behaviour

[30] The third issue relevant to this costs award is the behaviour of the parties in this matter.

[31] I have already determined that the agency was guilty of unfair or unreasonable behaviour. This motion should not have been argued as DBCFS should clearly have made K.D.-M. a party to this motion from the beginning when it issued process. The agency engaged in unfair behaviour which, apart from the liability for payment of costs, affects the amount of the cost award in this matter.

[32] We also, however, cannot ignore the behaviour of K.D.-M. Her failure in upholding her end of the Voluntary Care Agreement resulted in this motion. She engaged in bickering and fighting with her daughter in the presence of the children leaving the agency with no alternative but to end that agreement and apprehend the children. A major basis for an order returning the children to K.D.-M. was the fact that the parties would now be kept apart through the criminal recognizance and that the agency could monitor that.

[33] Therefore, there is misbehaviour on both sides which affects the amount of the costs award in this matter.

Conclusion

[34] Mr. Severn requests costs of nearly $7,500 on a full recovery basis.

[35] In light of the fact that I have found the time spent to be excessive on these two motions, that must be reduced even if full recovery costs are awarded. I have made a finding that K.D.-M. can claim about 10 hours for the motion rather than the 18 hours set out in the Bill of Costs.

[36] Although there was an offer to settle that complies with Rule 18, that only affected just over one-half of the time spent on the motion. There is entitlement of full recovery costs for 6 hours for costs of $2,100; the remaining 4 hours would be at a partial recovery rate.

[37] The poor litigation behaviour of the Applicant agency is, to some extent mitigated by the behaviour of the maternal grandmother in this proceeding, which was also not impressive.

[38] Therefore, I find that K.D.-M. is entitled to her costs against DBCFS in the amount of $3,000. Costs to be paid within 60 days.

McDermot J.

Date: September 1, 2020

[^1]: S.O. 2017, c. 14. [^2]: O. Reg. 114/99 [^3]: See Children's Aid Society of Hamilton v. K.L., 2014 ONSC 3679, [2014] O.J. No. 2860 at para. 14.