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.
Grenville v. A.B. and R.R. 2021 ONSC 5368
COURT FILE NO.: FC19-0293
DATE: August 4, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FAMILY AND CHILDREN’S SERVICES OF LANARK, LEEDS AND GRENVILLE
Applicant
– and –
A.B.
Respondent
R.R.
Respondent
Heather Morrison, for the Applicant
Francis Aheto-Tsegah, for the Respondent Mother, A.B.
Jessica Brant, for the Respondent Father, R.R.
Ruling on motion
ABRAMS, J
Overview
[1] This amended protection proceeding was initiated by the Society as a result of the Respondent mother’s request to introduce her children from her relationship with the Respondent father (“the children”) to her current spouse, Mr. W.L. (“Mr. W.L.”), a former federal inmate who served a sentence in relation to the violent death of a four year old child.
[2] On May 11, 2021, the Court endorsed that the parties had resolved the child protection issues and were in the process of finalizing matters by way of a statement of agreed facts and draft order, with the expectation that the children would remain in the primary care of the Respondent father.
[3] Counsel for the Society confirmed today that the child protection issues are resolved on a final basis. The children shall remain in the primary care of the Respondent father, with parenting time to the Respondent mother, pursuant to a section 102 custody order. Further, the order provides that Mr. W.L. is prohibited from having any contact with the children and shall not be within 500 meters of the Respondent mother’s residence when she is exercising parenting time with the children.
[4] That leaves only the issue of costs as between the Respondent father and the Respondent mother.
[5] The matter was adjourned to today for a costs motion. The parties filed materials in accordance with a litigation timetable, which the Court had the benefit of reviewing.
Parties Positions:
[6] The Respondent father contends that he is entitled to costs of $13,041.29, inclusive of all fees, disbursements and HST, on account of delay occasioned by the Respondent mother in respect of the proceeding.
[7] The Respondent mother argues that she caused no delay. Rather, she asserts that she was co-operative throughout the Society’s investigation and complied with every order made by the Court. In the circumstances, she contends that no order for costs should be made.
Issue:
[8] Should costs be awarded to the Respondent father payable by the Respondent mother?
Law:
[9] Pursuant to Rule 24(1) Family Law Rules, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal, but not in respect of Child Protection Cases: Rule 24(2).
[10] The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection. It should not be dissuaded from the pursuit of its statutory mandate by costs considerations: Children’s Aid Society of Ottawa- Carleton v. S. 2003 CanLII 88994 (ON SCDC), [2003] O.J. No. 945 (SCJ Div. Ct.).
[11] Rule 24(2), which provides protection against costs in a child protection case, protects both societies and parents involved, not just the societies: Children’s Aid Society of Ottawa v. S.(D.), 2003 CanLII 88994 (ON SCDC), [2003] O.J. No. 945).
[12] The case law supports the proposition that parents should be entitled to vigorously oppose and defend themselves in a child protection proceeding without the fear of cost sanctions. However, parents will not be insulated from a claim of costs if they act in bad faith, are unreasonable or act in a manner that is disproportionate to the issues involved.
[13] Examples of extreme unreasonable conduct include: unreasonable behaviour that harms the children involved by heightening and extending conflict between the parents, a parent who repeatedly disobeys court orders and misleads the court and a parent found to be acting in bad faith.
[14] As Agro J. said in Children's Aid Society of Brant v. D.M.C., 1997 CanLII 9575 (ON CJ)]
Costs are neither reward nor punishment. In my view, it is not fairness that is the issue in the exercise of discretion under section 131 of the Courts of Justice Act. Rather it is the accountability for the manner in which any litigant presents its case and expedites a reasonable resolution, whether by settlement or at trial.
[15] Even in the face of difficult conduct on the part of parents, costs should not be awarded against them except in exceptional or unusual cases: Child and Family Services for York Region v. A.S., 2010 ONSC 1287, [2010] O.J. No. 872 (SCJ); Jewish Family and Child Service of Greater Toronto v. Y.B. 2011 ONCJ 633, [2011] OJ No. 5490 (OCJ).
Analysis and Conclusions:
[16] The Respondent mother argues that she has been resolution oriented throughout the proceeding. She willingly worked voluntarily with the Society from the beginning when she initiated contact to inquire regarding how best to re-integrate her children, including the children with the Respondent father, with Mr. W.L., following his release from a federal institution. It was her view that Mr. W.L. posed no risk of harm to any of her children that could not be mitigated, beginning with supervised visits. All of that said, she concedes that, in the result, she consented to a final resolution that effectively serves as a restraining order between the children and Mr. W.L.. In the circumstances, she contends that this is not the exceptional or unusual case where costs should be ordered against her. I do not see it that way.
[17] In my view, it ought to have been patently obvious to the Respondent mother that nothing short of a complete prohibition of contact between Mr. W.L. and the children would be a reasonable outcome in this proceeding. I say that for the following reasons.
[18] Mr. W.L. is responsible for the death of a four-year-old stepdaughter who was left in his care. It is uncontested that he spanked the child on the buttocks with such force that she was propelled forward striking her head on a bunk bed, following which she fell to the floor and died.
[19] Mr. W.L. is a recidivist. After being granted full parole, he was arrested and convicted of impaired driving, which resulted in his parole being revoked.
[20] Mr. W.L. has little, if any, regard for court orders. In January 2020, Mr. W.L. and the Respondent mother engaged in a scheme to organize a conjugal visit in a Hamilton, Ontario hotel room, with their children present in an adjoining room, which was in contravention of Mr. W.L.’s parole condition not to be in the presence of anyone 16 years of age or younger. An arrest warrant was issued for Mr. W.L., which resulted in him being arrested after being on the run from the authorities for approximately 24 hours.
[21] The right of access, or parenting time, with a child is not absolute and must be of benefit to the child. To that end, a starting point to assess a child’s best interests when making a custody or access [parenting time] order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe: I.A. v. M.Z., 2016 ONCJ 615.
[22] Against the facts set out above regarding Mr. W.L.’s violent, criminal, recidivist conduct, query: What parent acting reasonably would expose their child, particularly a child from another relationship, to Mr. W.L. in good conscience and in keeping with the child’s best interests, believing that the access or parenting time would be of benefit to the child? In my view, no parent acting reasonably would do that, which should have been obvious to the Respondent mother from the outset of the proceeding, not three years later.
[23] In my view, the conundrum that the Respondent mother finds herself in is of her own making. She placed her own interests in pursuing a relationship with Mr. W.L. ahead of the children’s best interests. Thereafter, and throughout this proceeding, she has attempted to justify, legitimize, and normalize her decision by contending that the children should have a relationship with Mr. W.L.. She finally acquiesced to a final order of no contact between the children and Mr. W.L., but far too late, in my view, and at considerable, unnecessary expense to the Respondent father.
[24] For all of these reasons, I am of the view that this is not merely a case of difficult conduct on the part of the Respondent mother in which she was asserting a vigorous defence of her rights. Rather, this is an exceptional or unusual case wherein she unreasonably and unsuccessfully argued for access or parenting time between Mr. W.L. and the children, which was not in the children’s best interest or for their benefit, but simply to appease her guilt of having chosen Mr. W.L. over them.
[25] In the result, there shall be an order for costs payable by the Respondent mother to the Respondent father in the sum of $7,800.00 inclusive of fees, disbursements and HST, marked payable forthwith and enforceable in any event as child support by the Family Responsibility Office.
The Honourable Mr. Justice B. W. Abrams
Released: August 4, 2021
Grenville v. A.B. and R.R. 2021 ONSC 5368
COURT FILE NO.: FC19-0293
DATE: August 4, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FAMILY AND CHILDREN’S SERVICES OF LANARK, LEEDS AND GRENVILLE
Applicant
– and –
A.B.
Respondent
- and -
R.R.
Respondent
RULING ON MOTION
Abrams, J.
Released: August 4, 2021