COURT FILE NO.: FC-17-FO000054-0000
DATE: 2021-04-13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CHILDREN’S AID SOCIETY OF HALDIMAND AND NORFOLK, Applicant
AND:
J. H., Respondent
M. H., Respondent
BEFORE: Justice J.D. Walters
COUNSEL: D. Clarke, Counsel for the Applicant Society C. Hibberd, Counsel for the Respondent Mother E. Kiernan, Counsel for the Respondent Father K. Junger, Counsel for the Office of the Children’s Lawyer
HEARD: January 11 and 12, 2021
C O S T S E N D O R S E M E N T
[1] This child protection matter was before me in 2020 for trial. The trial commenced on January 28, 2020 and approximately 15 days of evidence had been led when the courts were suspended as a result of COVID-19.
[2] On March 20, 2020, the Respondent mother (the “mother”) brought a motion on an urgent basis seeking among other things, the return of the two children to her care pursuant to the existing Order of Gregson J., dated September 18, 2018. The Order provides that the children be placed in the mother’s care subject to the supervision of the Society. The mother brought the motion after the children did not return from an access visit with their father.
[3] The motion was heard on March 27, 2020 and April 8, 2020 by teleconference, due to the suspension of normal court operations as a result of the pandemic. The mother was successful in that motion and the matter was adjourned to June 3, 2020 for the purposes of scheduling the continuation of the trial. On June 3, 2020 the courts remained suspended due to COVID-19. On October 7, 2020, this matter returned to court for scheduling purposes and a further six weeks of trial was scheduled to commence on January 11, 2021.
[4] Piccoli J. held a settlement conference with the parties, the Children’s Aid Society of Haldimand and Norfolk (the “Society”), the Office of the Children’s Lawyer (the “OCL”), the mother, and the Respondent father (the “father”), on December 16, 2020. All issues were resolved that day with the exception of costs.
[5] On January 11 and 12, 2021, the parties attended before me and made submissions on costs. The mother and the father each filed a summary of their position and counsel for the mother also filed a Bill of Costs.
POSITION OF THE PARTIES
[6] The mother seeks costs from the father. Her Bill of Costs sets out costs of $352,066.02 on a substantial indemnity basis and $267,666.32 on a partial indemnity basis. She seeks costs from May 19, 2017, up to and including January 4, 2021. In addition to the costs of the March and April urgent motion before me and the costs of the trial, this includes the costs of a motion heard by Harper J. in October 2019, where it was ordered that there should be no change in the interim parenting arrangements ordered by Gregson J. in September 2018. Harper J. reserved the costs of the motion to the trial judge.
[7] The mother argues that she should be awarded costs for several reasons. First, the mother contends that the father conducted himself in an unreasonable and abusive manner. Second, the mother submits that while there were ongoing protection concerns, this matter was also dominated by facts and issues traditionally the focus of a custody and access proceeding. Third, the mother argues that she was successful in her motion brought at the outset of the pandemic to enforce the existing Order. Finally, it is the mother’s position that she made an offer to settle in accordance with r. 18 of the Family Law Rules, O. Reg. 114/99, which was as or more favourable than the ultimate settlement reached with Piccoli J.
[8] In the mother’s formal offer to settle, made on November 6, 2019, she sought the following:
a) A finding that the children were in need of protection pursuant to ss. 74(2)(b)(i),(ii) and (h) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14;
b) Custody of the children with final decision making on the issues relating to medication and medical issues;
c) Primary residence for the two children; and
d) Access with the children and the Respondent father alternate weeks from Friday to Sunday and Wednesdays overnight until Thursdays each week.
[9] In addition to the foregoing, the offer to settle also set out holiday time as well as prohibitions against exposing the children to conversations about adult issues and a prohibition against making or producing any video recording or photographic image of the children.
[10] The father argues that there should not be a costs order made in this proceeding for three reasons. First, the father states that the parties have been able to resolve the matter. The trial evidence was not concluded and there is no evidence that the father acted extremely unreasonably or in bad faith. Second, the father argues that the mother’s offer to settle was not as good as or better than the settlement achieved. Finally, the father did not have the opportunity to lead his own evidence in the case. He submits that a costs judgment should not be based on mere speculation about whether a litigant would have had greater or lesser success had the whole trial been litigated. Such judgments tend to discourage settlement mid-trial and encourage parties to try their luck with further litigation.
[11] Neither the Society nor the OCL seek costs.
[12] For the reasons set out below, I make an Order that the father shall pay the mother’s costs in the amount of $15,000, inclusive of HST and disbursements. I allocate this costs award for the urgent motion heard before me in March and April of 2020. There shall be no Order for costs for the trial or the motion heard before Harper J. in October 2019.
THE LAW
[13] 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.
[14] Rule 24(1) of the Family Law Rules provides that the successful party is presumptively entitled to costs. However, r. 24(2) of the Family Law Rules states that this presumption does not apply in child protection cases.
[15] In all other aspects, r. 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.
[16] In this case, the following sub-rules are relevant:
24.(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behavior in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
24.(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 behavior,
(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.
[17] 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 where 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.
[18] The rationale underlying r. 24(2) was explained, by the Divisional Court in S.(D.), Re, one of the earliest decisions that considered a claim for costs between parents in child protection proceeding, at paras. 3-5.
3 The rationale for making child protection cases an exception to the presumption 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.
[19] 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.
[20] 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. In A.S. v. G.S., at para. 17, the court stated the following:
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 is acting 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 cost to any successful party.
[21] In P.(M.), the court considered the kinds of circumstances where a costs order would be appropriate, and stated the following 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).
[22] The court in P.(M.) 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 who had costs awarded against them acted extremely unreasonably and/or in bad faith:
7 In Children’s Aid Society of Ottawa v. K., [2005] O.J. No. 2537 (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 behavior 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 behavior 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.), [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.
[23] As the foregoing passages emphasize, the courts should 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 behavior and/or bad faith throughout the litigation.
[24] 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 proceedings [sic] 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 behavior or acted in bad faith.
ANALYSIS
[25] I agree with the mother that the father’s conduct resulted in her having to bring a motion mid-trial to seek enforcement of the existing Order, as the two children, who by court order were placed in her care, did not return from an access visit with their father.
[26] The father’s own evidence in support of the motion acknowledged that the Order was not being followed. He admitted that he is unable to parent the children effectively and indicated that he would not make the children do anything that they did not want to do, including following a court Order. The father submitted that the children were “agents of their own body” and that they can decide where they want to live.
[27] Following argument of that motion, I ordered that the children return to the care of the mother with the assistance of police and that the father’s access be supervised. Costs of that motion were never discussed until final submissions were made regarding costs following the resolution of the case in January 2021.
[28] I do not agree with the mother that the father’s actions were unreasonable to the point where he acted in bad faith and that the total costs the mother has incurred for this matter since the file began in 2017, in the amount of $352,066.02, should be awarded to her.
[29] This matter settled before the applicant Society had finished its evidence. Neither the mother nor the father had an opportunity to put forward any evidence in support of their position. To award substantial costs to one party against another for a trial that was not completed without having heard all of the evidence could have the potential impact of preventing settlement.
[30] The parties were able to settle this matter while waiting for the trial to resume and minutes of settlement were negotiated.
[31] 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 the legal costs actually incurred by the successful party.
[32] I agree that the mother should be awarded costs for the motion brought at the beginning of the pandemic and as a result I award costs in the amount of $15,000, payable by the father to the mother and inclusive of HST and disbursements. I do not agree that the mother should be awarded costs from when the proceeding began up until when the proceeding was resolved. I have not heard all of the evidence and although the father by his own submission was in contempt of a court order, there is no evidence before me that he was so unreasonable or acted in bad faith as to justify a costs order for anything more than the motion brought mid-trial.
ORDER
[33] After reviewing the material filed and hearing submissions of the parties, the court orders as follows:
The father shall pay to the mother $15,000 for costs, inclusive of disbursements and HST for the motion heard on March 27, 2020 and April 8, 2020;
All other claims for costs made by the mother shall be dismissed.
Walters, J.
DATE: April 13, 2021