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 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.

2022 ONSC 6582

COURT FILE NO.: FC-21-879-00

DATE: 20221123

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Simcoe Muskoka Child, Youth and Family Services, Applicant

AND:

H.D. and J.D., Respondents

BEFORE: Madam Justice R. S. Jain

COUNSEL: D. Winnitoy, Counsel, for the Applicant

J. O’Byrne, Counsel, for the Respondent H.D.

M. Morningstar, Counsel, for the Respondent J.D.

HEARD: In Writing

Costs ENDORSEMENT

[1] This court heard a motion in this matter on October 6, 2022. The motion was brought by the Respondent parents, H.D. and J.D., as against the Applicant Society. The Endorsement resulting from that motion was released on October 24, 2022. In that decision, the parties were invited to serve and file costs submissions in accordance with certain timelines. Submissions have now been received from all parties and this is my Endorsement in relation to the costs of that motion.

[2] The Applicant seeks costs in the amount of $10,094.86 for the above motion as the Society was successful and obtained an order that matched its Offer to Settle, dated October 3, 2022. The Respondents seek an order that there be no costs of this motion or, in the alternative, that any costs order made should be “symbolic in nature and not a mechanical reimbursement of the Society’s fees.”

[3] As set out in Mattina v. Mattina, 2018 ONCA 867, modern costs rules are designed to foster four fundamental purposes:

(a) To partially indemnify successful litigants;

(b) To encourage settlement;

(c) To discourage and sanction inappropriate behaviour by litigants; and

(d) To ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules.

Costs awards, at the end of the day, should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties.

[4] Rule 24(3) of the Family Law Rules provides that child protection matters are exempt from the presumption that costs ought to be awarded to the successful party. The court has discretion to order costs to or against a government agency pursuant to Rule 24(3). This is done, however, only in extremely rare cases or under very exceptional circumstances. The reasoning for this is because the Society has an obligation through statute “to initiate and pursue proceedings if there is a reason to believe a child is in need of protection”. At the same time, parents “should not be intimidated, through the risk of a cost consequence, from contesting an intervention of the State into their and their children’s lives”. (see: Kenora-Patricia Child and Family Services v. M.(A.), 2005 CarswellOnt 9214).

[5] When analyzing the costs issue and reviewing the fundamental purpose of costs, the court cannot ignore the context of this matter being a child protection proceeding, nor the behaviour of the parties. Child protection matters by their very nature are highly contentious. In my view, the history of this matter has been unusually litigious (on both sides) as there have been numerous court dates and there have been two costs orders issued against the Society.

[6] The Respondents initiated this motion and were not successful. The Respondents submit that they should be insulated from a costs order so that they are not “deterred from vigorously defending themselves when faced with state intervention interfering with the upbringing of their children.” (see: Children’s Aid Society of Toronto v. S.T., 2018 ONCJ 573 at para. 13).

[7] Unfortunately, this argument does not perfectly apply in this situation because although this motion was brought in the context of a child protection proceeding, it was not brought by the Society. The Respondents brought a motion seeking significant relief on the heels of their own inappropriate behaviour (they were in breach an order). Further, the parents’ breach of the order necessitated two court appearances for this motion, (thereby increasing costs). In my view, the Respondents’ motion had no reasonable prospect of success and was ill conceived at this stage of the child protection proceeding.

[8] I do not agree that, under these circumstances, the costs order should be “symbolic in nature” as submitted by the Respondents. In this motion, the parents were not facing the “permanent loss of their child or children to the state”. In my view, the Respondents should pay some costs for their inappropriate behaviour and to encourage settlement and more reasonable conduct in the future. Further, the Respondents should pay some costs for having caused the Society to incur the needless costs of this motion.

[9] At the same time, a costs award (particularly in a child protection proceeding) should not necessarily reflect the amount of legal costs actually incurred by the successful party. To be clear, the court does not find the amount sought to be “grossly disproportionate” nor does it find counsel’s hourly rate or amount of time dedicated to the motion to be unreasonable, (especially given the effectiveness of counsel’s advocacy).

[10] In my view, this is one of those rare and exceptional circumstances where a costs award should be considered against a parent. I find that a fair and reasonable costs award in this situation is $2,500.00, inclusive of HST and disbursements.

[11] Order to go that the Respondents shall pay the Applicant the total amount of $2,500.00 within 60 days of the date of this order.

Jain J.

Released: November 23, 2022