COURT FILE NO.: FC-18-FO000530-0000
DATE: 2021-03-18
WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — 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.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FAMILY and CHILDREN’S SERVICES OF GUELPH
and WELLINGTON COUNTY, Applicant
- AND -
A.M.P., Respondent
- AND -
K.D.S., Respondent
BEFORE: Madam Justice D. Piccoli
COUNSEL: Antonio Circelli, Counsel for the Applicant
Phaedra Klodner, Counsel for the Respondent, A.M.P.
Patrick Brohman, Counsel for the Respondent, K.D.S.
Diane L. McInnis, Counsel for the children (OCL)
HEARD: March 10, 2021
COSTS ENDORSEMENT
[1] As a result of my decision on a summary judgment motion heard October 7, 2020, the Respondent Mother (“Mother”) seeks costs in the sum of $4,000 from the Respondent Father (“Father”). Her bill of costs is actually $5,281.11, not including her attendance for costs submissions on March 10, 2021. Father does not dispute that the bill of costs is reasonable.
[2] Father’s position is that no costs should be ordered.
[3] At the time of the summary judgment motion, the two children had been in the care of Mother pursuant to an interim supervision order dated October 16, 2018. The Applicant (“CAS”), Mother and OCL sought statutory and protection findings in accordance with CAS’ amended Application and Amended Notice of Motion that the children be placed in the custody of their mother pursuant to s. 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). CAS sought that the children have access with their father on terms determined at Mother’s discretion. Mother and OCL sought that Father’s access to the children be in accordance with their wishes. Father was not in agreement. His position in his amended answer was that the children reside with his sister. He also sought a no contact order between the children and their half-sister, including contact by email, texts or social media. Father’s position was that there were genuine issues for trial.
[4] In my decision following the summary judgment motion, I made a finding that the children were in need of protection pursuant to ss. 74(2)(k) and 74(2)(h) of the CYFSA. I did not make a finding under section 74(2)(d) of the CYFSA on the summary judgment motion as Father, and those persons who have sworn affidavits in support of him, raised sufficient material facts in dispute. I ordered that the children be placed in the custody of their mother pursuant to s.102 of the CYFSA, that they have access with their father in accordance with their wishes and at mother’s discretion and that they have access with their half-sister in accordance with their wishes and at mother’s discretion.
[5] No formal offers to settle were made by either party.
[6] Mother made an informal offer to settle, while self-represented, as part of her settlement conference brief dated May 30, 2019. Her offer was that the children would continue to reside at her residence and be under her full-time care and that access would be based solely and completely on the wishes of the children.
[7] Mother concedes that Father did not act in bad faith. It is her position that Father was extremely unreasonable, as his plan was for the children to live with his sister when the children had been in the consistent care of their Mother. She states that this case, as it evolved, became more about custody and access than about child protection.
[8] Father states that the position taken by CAS, and its failure to withdraw its request for a finding under s.74(2)(d) sexual abuse/exploitation, rendered him unable to resolve the matter with the allegations outstanding – they were serious.
[9] If this were a case under the Children's Law Reform Act, R.S.O. 1990, c. C.12, I would have no difficulty ordering costs against the Father. As it is a case under the CYFSA, for the reasons set out below, I decline to make a costs order against father.
I. THE LAW
[10] The determination of costs is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 and r. 24 of the Family Law Rules, O. Reg. 114/99.
[11] Rule 24(1) of the Family Law Rules provides that the successful party is presumptively entitled to costs. However, Rule 24 (2) of the Family Law Rules provides that this presumption does not apply in child protection cases.
[12] In all other aspects Rule 24 is applicable to a costs’ claim within a protection proceeding: see A.S. v. G.S., 2010 ONSC 1287, 79 R.F.L. (6th) 324, at para. 7.
Costs in Child Protection Proceedings Generally
[13] While the successful party in a child protection proceeding is not presumptively entitled to costs, the courts have held that costs may be ordered between parents in exceptional circumstances where one party has acted extremely unreasonably or in bad faith, or there are other compelling circumstances justifying the order: see, S. (D.), Re (2003), 2003 CanLII 88994 (ON SCDC), 39 R.F.L. (5th) 209 (Ont. Div. Ct.); Children’s Aid Society of Ottawa v. P. (M.), 2014 ONSC 6567.
[14] The rationale underlying r. 24(2) was explained, at paras. 3-5, by the Divisional Court in S. (D.), Re, one of the earliest decisions that considered a claim for costs between parents in a child protection proceeding.
3 The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a children's aid society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations. Parents, on the other hand, are generally insulated from claims for costs in such proceedings because when faced with state intervention in the care and upbringing of their children, they have a right to force the state to prove its case and should not be penalized in costs. See Children's Aid Society of Ottawa-Carleton v. V. and V. (2001), 105 A.C.W.S. (3d) 885, [2001] O.J. No. 2147, [2001] O.T.C. 428, 2001 CarswellOnt 1991 (Ont. Fam. Ct.).
4 In this case, the costs issue is not as between the children's aid society and a parent, but rather as between the two parents. … As between the father and the mother, the mother was "successful" because she supported the disposition of the trial judge which was upheld.
5 However, the wording of subrule 24(2) is clear and unequivocal. The presumptive entitlement to costs "does not apply in a child protection case". The mother is not presumptively entitled to costs. There may be appropriate cases for costs awards as between the parents in a child protection case, but entitlement must be based on something more than merely the outcome of the case.
[15] As the court emphasized, while there may be compelling circumstances that justify a costs order in a child protection case, that entitlement must be based on something more than the outcome of the case.
[16] Subsequent cases have reiterated that parents in child protection proceedings are not ordinary litigants, and their right to oppose a child protection proceeding should not be interfered with lightly. As stated in A.S., at para. 17:
17 … The subject matter of the application, the governing statute and the jurisprudence all speak to the same overriding purpose: the care and protection of children. The fear of a costs sanction ought not to impede a vigorous presentation of any participant’s case provided that one has acted in good faith, and in a manner not excessively unreasonable or disproportionate to the issues involved. The legislature has specifically recognized this approach by eliminating the presumptive entitlement to costs to any successful party.
[17] In P. (M.), the court considered the kinds of circumstances where a costs order would be appropriate, stating at para. 6:
6 … [T]here may be appropriate cases for costs awards to be made between parents in child protection proceedings where the grounds for making such an order are not simply that one parent has been successful. For example, costs may be appropriate where a parent has taken a position that is completely devoid of merit, where a parent has acted unreasonably in his or her capacity as a litigant in the proceeding, or where there are other exceptional circumstances (S. (D.), Re at paras. 5-6).
[18] The court proceeded to canvas the case-law regarding costs awards between parents in child protection matters. In all three cases cited by the court, at paras. 7-10, the parent acted extremely unreasonably and/or in bad faith:
7 In Children's Aid Society of Ottawa v. K., 2005 CanLII 21551 (ON SC), [2005] O.J. No. 2573 (S.C.J.), Linhares de Sousa J. awarded costs against a mother in regard to both child protection proceedings and subsequent custody proceedings due to the mother's "aggressive, negative and uncooperative attitude towards the Society's efforts to assist [the] family" (at para. 3). The judge found particularly troubling the mother's continual attempts to undermine the Society's involvement in the eyes of the children. At para. 5, Linhares de Sousa J. described in some detail the type of behaviour which, in her view, justified a costs award against the mother:
From the commencement of these proceedings and in how the parties have dealt with each other, the conduct of both parties has been less than exemplary for their children and certainly not in the best interests of their children. Their out of control matrimonial conflict created the need to have the involvement of the Children's Aid Society in the first place. Both parties contributed to their sorry matrimonial situation. Nonetheless, for the reasons I gave in both my decisions of April 13, 2005, and September 25, 2003, Ms. K., in the intensity of her conflict with her husband, has consistently conducted herself throughout the child protection proceedings in an uncooperative and obstructionist manner. She has been disrespectful of court orders and has disregarded them if she has not agreed with them. Her behaviour has necessitated the bringing of court proceedings and has prolonged them. More importantly and seriously, she has actively involved her children in the parties' matrimonial conflict and continues to do so. She continues to have very little insight into her own conduct, which can only be described as unreasonable and if not in bad faith certainly bordering on it.
8 In Children's Aid Society of Simcoe (County) v. S. (C.), 2006 CanLII 6688 (ON SC), [2006] O.J. No. 871 (S.C.J.) Olah J. ordered costs against a father who was in contempt of a court order that related to a child in care of the Society and who had, in fact, been the directing mind in his daughter's 12-week absence from the care of the Society, enlisting the support of two of his other children in doing so.
9 In Children & Family Services for York Region v. S. (A.), 2010 ONSC 1287 aff'd 2011 ONSC 1732 (Div. Ct.), McGee J. made two very substantial costs awards against a mother as a result of her conduct during the litigation. The first order was justified due to the court's finding that the mother had acted in bad faith in making unwarranted allegations of a criminal nature against the father. The second order was justified on the basis of the mother having acted unreasonably in continuing to resist the father's unsupervised access to the children and in disregarding the expert testimony at trial. At paras 15-16, McGee J. added a cautionary note regarding those circumstances in which a costs order should be made against a parent in child protection proceedings, emphasizing that parents should be given considerable latitude in defending their case against society intervention. She referred to the following quote from Kenora-Patricia Child & Family Services v. M. (A.) (2005), [2007] W.D.F.L. 1732 (Ont. C.J.):
Unless unreasonable conduct is so excessive as to warrant condemnation, thereby putting the case into the category of one of those "rare" cases warranting a cost consequence, I find that the parent's right to oppose a child protection proceeding should not be lightly interfered with, even in cases where, with the benefit of hindsight, the manner and the nature of the defence presented by parents may be considered to have been excessive and unreasonable.
10 As has been stated in numerous cases, the determination of costs is not a mechanical exercise. The objective of a costs award is to fix an amount that is fair and reasonable for both parties, taking into account the reasonable expectations of the party against whom the order is made and the ability of that party to pay a costs award. A costs award will not necessarily reflect the amount of legal costs actually incurred by the successful party.
[19] As the foregoing passages emphasize, courts are to exercise caution when deciding whether to award costs between parents in child protection proceedings, as parents should be afforded with considerable latitude when faced with state intervention: see also Windsor-Essex Children’s Aid Society v. J.D., 2017 ONCJ 551, at paras. 24-25; Children’s Aid Society of Toronto v. C.B., 2020 ONCJ 369, at para. 21. However, parents are not insulated from costs when they exhibit extremely unreasonable behaviour and/or bad faith throughout the litigation.
[20] More recently, in Children’s Aid Society of Toronto v. R.G., 2019 ONCJ 380, 32 R.F.L. (8th) 249, at para. 20, the court offered a thorough overview of the considerations that govern the imposition of costs in child protection proceedings:
20 The case law supports the following principles:
Parents should be entitled to vigorously oppose and defend themselves in child protection proceedings without the fear of cost sanctions;
Costs should only be awarded against parents in a child protection proceeding in rare and exceptional circumstances;
Courts are more willing to order costs between competing parties (caregivers and parents) in child protection proceedings if they act in bad faith, are unreasonable or act in a manner that is disproportionate to the issues involved;
Courts are more willing to order costs between parties, the closer the child protection proceeding resembles a custody and access proceeding;
Courts have awarded costs against one parent in favour of another parent in circumstances where:
• the parent has filed excessive and repetitive affidavits that the other parent needed to respond to;
• the parent caused the proceedings to be protracted;
• the parent filed and made submissions that were out of proportion to the nature of the relief being sought by the society or the other parent;
• the parent disregarded court orders, behaved in an obstructionist manner, made meritless claims and actively involved the children in the conflict; and
• the parent misled the court, brought frivolous motions or engaged in serious, unjustified behaviour or acted in bad faith. [Emphasis added citations omitted.]
[21] Both parties agree that:
The litigation was not protracted by Father’s actions – the death of his lawyer and the impact of COVID were outside his control.
Any problems with the Father’s affidavit evidence were rectified upon Father hiring his current lawyer.
Father did not behave in bad faith.
Father did not disregard court orders.
Father did not involve the children in the litigation as he had not seen the children in over two years prior to the hearing of the summary judgment motion.
[22] I agree with Mother that this matter evolved into custody and access proceedings, but it did not start that way. I do believe that Father was unreasonable in taking the position that the children reside with his sister (who in her own affidavit did not set out her plan for the children), but it does not reach the level of unreasonableness required for me to order costs in a child protection proceeding on a summary judgment motion. Furthermore, given that CAS did not withdraw the claim for a protection finding under section 74(2)(h), I do agree that Father had to defend the claim.
[23] For these reasons I dismiss Mother’s request for costs.
[24] I wish to thank Ms. Klodner and Mr. Brohman for their reasonable and respectful submissions.
_______________________________ Date: March 18, 2021 D. Piccoli, J.