Court File and Parties

COURT FILE NO.: FS-22-00032561-0000 DATE: 20230913 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

T. M. Appellant – and – CHILDREN’S AID SOCIETY TORONTO (CAS TORONTO), A.L., and R.R. Respondents

Counsel: Paul Mongenais, for the Applicant Sherri Smolkin, for the Respondent CAS Toronto Renatta Austin, for the Respondent A.L. Paul Cooper, for the maternal grandparents

HEARD: IN CHAMBERS

SHORE, J.

Reasons for Costs Endorsement

[1] This case is another example of how the general public would be better served if there was a Unified Family Court ("UFC”) in Toronto, instead of a dual/parallel court system. The shenanigans that went on in this case would not have occurred had there been a UFC in Toronto. Confusion of and stress on the parties could have been avoided. Instead, there were multiple attendances and several orders made in both the Ontario Court of Justice (“OCJ”) and the Superior Court of Justice (“SCJ”), sometimes not in line with one another. There were materials filed in the SCJ not before the court in the OCJ, and vice versa. As set out succinctly by Justice Sager in her December 9, 2022 endorsement in the OCJ proceedings:

This court does not know what evidence the Superior Court of Justice had when the order was made granting the mother parenting time to [the child] every weekend from Friday to Sunday.

[2] Likewise, Justice Diamond expressed similar concerns when making an order on December 13, 2022, in the SCJ:

It appears that CAST [Children’s Aid Society of Toronto] effectively sought and obtained an "end run" around the motions this Court expressly scheduled to be heard on December 13, 2022. Indeed, the Sager Order #2 explicitly granted the relief sought by CAST without Justice Sager knowing what evidence was before this Court leading to my Endorsements dated November 22 and 29, 2022.

[3] Proceedings taking place in two family courts, for the same parties, is a waste of time and money for the court system, and, more importantly, caused the parties and the courts to incur additional and unnecessary costs. For more information on the benefits of UFCs, see the Government of Canada website: https://www.justice.gc.ca/eng/rp-pr/cp-pm/eval/rep-rap/09/ufc-tuf. Other than highlighting the issue, this Court has no jurisdiction to affect this change. I will now turn to the issue before the Court.

[4] The appellant mother is seeking costs against the Children’s Aid Society of Toronto (the “CAS”) for her second appeal to the SCJ. By way of a very brief summary of a convoluted situation, a judge in the OCJ made an interim order regarding the child. The mother appealed that decision to this court. This court made an interim order regarding the child. The CAS then started a protection application in the OCJ and brought an urgent motion under that proceeding, regarding the same child, thereby staying the proceedings in the SCJ. In the protection proceedings, the OCJ made an interim order regarding that same child. The OCJ order from the urgent motion conflicted with the order from the SCJ. The mother appealed the interim decision of the OCJ in the protection application. The CAS ultimately withdrew their protection application in the OCJ, making both appeals in this court moot. The mother is seeking her costs of the appeal in the protection application.

[5] The court must consider:

1. Can costs be ordered against a CAS?
2. If so, is this an appropriate case to order costs against a CAS?
3. If so, what quantum of costs should be ordered?

Can costs be awarded against a CAS?

[6] In specific circumstances, costs can be awarded against a CAS.

[7] Rules 12(3) and (4) of the Family Law Rules (the “FLRs”) provide that a party who withdraws all or part of an application shall pay the cost of the other party unless the court orders or the parties agree otherwise. However, if the party is a government agency, costs are in the court’s discretion.

[8] Rule 24 of the FLRs further provides:

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1). (2) The presumption does not apply in a child protection case or to a party that is a government agency. O. Reg. 114/99, r. 24 (2); O. Reg. 544/99, s. 10 (1). (3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful. O. Reg. 114/99, r. 24 (3); O. Reg. 544/99, s. 10 (2).

[9] The CAS is considered a government agency and therefore, while the presumption does not apply, costs are in the court’s discretion. Have courts exercised this discretion and ordered costs against a CAS? Yes, in specific circumstances.

[10] Both parties provided me with helpful case law on the factors to consider when determining whether to order costs against a government agency, and specifically the CAS. The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that the CAS has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection. In other words, the CAS does not have a choice but to start a proceeding if there is reason to believe a child is in need of protection. The CAS should not be dissuaded from pursuing its statutory mandate because of possible costs consequences: see S. (D.), Re (2003), 39 R.F.L. (5th) 209 (Ont. Div. Ct.).

[11] Further, the CAS should not be sanctioned with 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.

[12] But the CAS is not immune to cost awards.

[13] In Kunuwanimano Child and Family Services, North Eastern Ontario Family and Children’s Services v. S.L., 2018 ONCJ 119, at para. 42, Kukurin J. quoted the following from Agro Prov. J. in Children’s Aid Society of Brant v. C. (D.M.) (1997), 27 R.F.L. (4th) 123 (Ont. C.J. (P.D.)):

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. In the case of a children’s aid society, this accountability is for the manner in which it investigates its case and presents it to the court measured against the background of the statutory requirements of the Child and Family Services Act. In the absence of an award for costs, there is no such accountability.

[14] Cost orders can therefore be made against a CAS, in certain circumstances. Is this an appropriate case to do so?

Should costs be awarded against the CAS in this case?

[15] I find this is an appropriate case to award costs against the CAS. The driving consideration in ordering costs in this case is as set out above: there has to be some accountability for (a) the manner in which the CAS investigates its case, and (b) presents it to the court.

[16] A review of the history of this file is important in understanding my decision.

[17] The mother gave birth to the child in 2013, when the mother was 15 years old. The mother recognizes that she was not equipped to care for the child at that time. The mother was living under horrible conditions. In 2016, the CAS placed the child in the care of a paternal cousin. An agreement had been reached whereby the mother would continue to be involved with the child: a minimum of one visit per month for four hours, plus additional time to attend events for the maternal family. This continued with no incident for many years. The mother’s time with the child was increased to 6 hours. The appellant mother had no involvement with the CAS since 2017.

[18] The mother spent the last several years improving herself and her living conditions. In April 2022, the mother commenced a proceeding in the OCJ, seeking additional parenting time with the child. The paternal cousin was the respondent, not the CAS. Shortly after the commencement of the proceedings, on October 5, 2022, the cousin died. This was a shock to everyone. The mother and father started making plans to care for the child, which included the mother moving in with her parents, who lived in a spacious home, two blocks from the child’s school. The mother had been living in her own accommodations in Brantford, Ontario until that time but was prepared to move in with her parents who lived closer to the child’s school.

[19] The mother and father participated in a case conference along with the sister of the deceased cousin, the respondent R.R., who was not yet a party to the proceedings. On October 13, 2022, an order was made placing the child in R.R.’s care. R.R. was living in Oshawa. The parties were directed to advise the CAS that the cousin had passed away and the court requested that a representative for the CAS attend at the next court attendance, scheduled for November 2022. This is how and when CAS became involved.

[20] The child was relocated to Oshawa as a result of the interim order and all contact between the mother and child was brought to an end. The mother’s lawyer reached out to the CAS, advising that the mother would make herself and her apartment available to the CAS at their request, in anticipation of the return to court. The mother heard nothing from the CAS.

[21] On November 10, 2022, the OCJ made a further order that R.R. was to cooperate in facilitating parenting time with the mother and was to provide the mother with her contact information. The CAS had still not met with the mother.

[22] In the meantime, the mother appealed the October 13, 2022 interim decision of the OCJ (which placed the child in R.R.’s care) to the SCJ.

[23] The grounds for the appeal stemmed from a statement in the OCJ order, that provided that there “shall be no change to [the child’s] current residence with [R.R.] in Oshawa.” The mother alleged that an error was made because the judge incorrectly assumed that R.R. had been living with the deceased and the child. But the deceased and the child were living in Scarborough at the time of the cousin’s death. The mother alleged that the child never resided with R.R., that there was no evidence in front of the judge, and that R.R. was not even a party to the proceedings. These were just allegations at the time but served as the basis of her appeal.

[24] On November 22, 2022, the matter came before Diamond J. in the SCJ by way of a motion. The mother brought a motion seeking a stay of the October 13, 2022 OCJ order pending appeal and an order for parenting time with the child. The mother filed affidavit material which included a detailed plan of care and details of the work she had done over the last few years to improve her circumstances. Justice Diamond made an order giving the mother parenting time with the child over the weekend, with a return date a week later.

[25] That same day, the CAS advised the mother that they would be commencing a protection application and that a notice of motion would “be served at a later date well in advance of the return date.”

[26] When the matter returned before Diamond J. on November 29, 2022, a representative from the CAS attended and advised the court that they would be commencing a protection application in the OCJ. A protection application automatically stays SCJ proceedings, subject to an order lifting the stay. The mother wanted to proceed with a motion to lift the automatic stay. Justice Diamond ordered that both motions would proceed on December 13, 2022, but in the meantime, the mother would have further parenting time with the child the following weekend.

[27] The protection application was issued the next day, on November 30, 2022, with a return date of December 22, 2022. The CAS had still not met with the mother but had met with both R.R. and the father by that time.

[28] The mother served her responding materials for the protection application on December 8, 2022. That same day, two business days before the return of the matter to the SCJ, the CAS served the mother with an urgent motion in the protection application, returnable the next day before the OCJ, asking the court to nullify the parenting time ordered by the SCJ. The motion material was served at the end of the day, after 4 p.m., returnable the next day. The mother received the motion material the night before the motion was to be heard and therefore did not have materials before the court. Further, the CAS did not include any of the evidence that was before the SCJ, or the endorsements made in the SCJ, in the motion material. The CAS’s concern was based on evidence in their file solely related to a time frame that was prior to 2017 (although there is some suggestion that the CAS had information as of 2019 from a different source). An order was made by the OCJ on December 9, 2022 restricting the mother’s time with the child based on the material filed by the CAS. The mother is seeking costs of the appeal of the December 9, 2022 OCJ order.

[29] When the matter returned to the SCJ on December 13, 2022, Diamond J. expressed concerns regarding the manner in which the CAS was proceeding, in his endorsement dated the same day:

It is troubling that CAST [Children’s Aid Society of Toronto] would withhold that evidence from Justice Sager when (a) it was essentially proceeding on ex parte basis and had a clear duty to place all relevant evidence before Justice Sager, including evidence known to CAST from the applicant or any adverse parties, and (b) CAST inserted itself into the within proceeding, unilaterally and without notice, by demanding the issuance of the automatic stay of proceedings. Even though these matters are still live (as the appeal of the Sager Order #1 is still outstanding, and CAST's urgent motion has yet to be decided on a full record), this Court is certainly less than impressed with what it views to be the tactics employed by CAST over the last few weeks.

Given what this Court finds to be questionable tactics on the part of CAST (as detailed above), it is also important to potentially hold CAST accountable if the Sager Order #2 is ultimately varied or set aside by another judge on January 3, 2023. [Emphasis added.]

[30] The CAS agreed to pay the mother costs of $2,500 for the attendance before Diamond J.

[31] The CAS’s first meeting with the mother took place at the start of 2023.

[32] The CAS ultimately withdrew the protection application in the OCJ, and the parties were able to reach an agreement on the outstanding parenting issues.

[33] In March 2023, with the consent of the parties, I vacated the appeal date, subject to a determination of costs. The mother is seeking her costs for the appeal of the order dated December 9, 2022.

[34] As set out above, the court must weigh the manner in which the CAS investigated its case and presented it to the court, against its statutory obligation to do so. In considering the factors set out in Hastings Children’s Aid Society v. J.L., 2012 ONCJ 362, 25 R.F.L. (7th) 240, when considering whether to order costs against the CAS, I find that the CAS fell short of its obligation.

[35] Costs are awarded against a society where a reasonable person would perceive it as having acted unfairly and unreasonably in its conduct of an investigation and application: see Catholic Children's Aid Society of Toronto v. G.B., 2016 ONCJ 57, at para. 49; Children's Aid Society of Halton Region v. H. (K.J.), 2004 ONCJ 119, at para. 14; and Children's Aid Society of Ottawa-Carleton v. D.S., [2002] O.J. No. 146 (S.C.), at para. 4.

[36] “Acting fairly,” includes:

a. Undertaking a thorough investigation before launching proceedings; b. Looking beyond allegations for corroboration; c. Interviewing the person alleged to have created the need for intervention, giving that person an opportunity to reply, and weighing competing versions, before validating allegations and drawing unequivocal conclusions of a need for protection; d. Demonstrating an openness to other versions of the events; e. Being alert to rancour that might explain the allegations; f. Continually reassessing its position and continuing its investigation in a vigorous professional manner; and g. Investigating all relevant information, not just those for which there is proof.

See Children's Aid Society of Waterloo Region v. B.-C.(Z.), 10 O.F.L.R. 124 (C.J. (P.D.)) at para. 7, and Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679, at para. 14.

[37] In considering how the CAS investigated the case that gave rise to the appeal, I find they acted unfairly. When they launched the protection proceedings and brought the urgent motion in 2022, the CAS had had no contact with the mother since 2017. In the material before the SCJ, the mother explained the efforts she made in the last several years to improve her circumstances, including maintaining gainful employment and a stable household, and caring for her two other children (one on a shared parenting basis) with no involvement or concerns by the CAS. The CAS did not appear to consider any of these events, even though they had access to the material. The CAS did not reassess its position based on new information, but rather relied on the information it had from 2017 and despite the mother’s multiple offers and efforts to meet with them. The CAS managed to interview R.R. and the father prior to bringing their urgent motion, but until months after starting the protection application, still had not been in contact with the mother.

[38] The issue of costs before this court is not with respect to the protection application, but with respect to the appeal proceedings before this court. However, the simultaneous actions of the CAS in the OCJ proceedings directly affect the costs incurred in the SCJ proceedings, both with respect to the appeal and the various attendances in the SCJ.

[39] As set out in more detail above, I have concerns about the manner in which the CAS proceeded in court. The CAS started a protection application and later proceeded with an urgent motion (despite previously advising the mother that she would receive plenty advance notice). They served the mother on the eve of the motion, without having met with the mother. They did not provide the OCJ with the mother’s materials or the updated information in the mother’s materials that were before the SCJ. In their cost submissions, the CAS submits that the order must be deemed to be correct. But an order is based on the information placed before the court. Proceeding on an urgent (and essentially ex parte) basis, the CAS had an obligation to ensure that all relevant information was before the court. In their cost submissions, the CAS submits that “[t]he Society’s Motion materials provided a concise summary of all of the evidence it considered relevant to the child protection issues”. Both courts disagreed. The motion material made no reference to the materials in the SCJ and did not provide a copy of the endorsements made in the SCJ.

[40] Sager J. specifically stated:

This court does not know what evidence the Superior Court of Justice had when the order was made granting the mother parenting time to [the child] every weekend from Friday to Sunday.

[41] All of this is considered against the backdrop that the CAS had still not taken steps to meet with the mother. A reasonable person would not view the CAS as acting reasonably or fairly in these circumstances.

[42] When they finally met with the mother and began discussions with her, they withdrew the protection application. Once they withdrew their application, the mother’s appeal became moot.

[43] Having found concerns with the manner in which the CAS proceeded with its investigation and in court, I find this to be an appropriate case to order costs against the CAS. The mother should not have had to incur costs for the appeal in the protection application.

What amount of costs should be ordered in this case?

[44] The mother is seeking costs on a full indemnity basis in the sum of $7,086. For the reasons set out below, the CAS shall pay costs to the mother in the sum of $3,000.

[45] In considering the quantum of costs to be awarded, I have considered the reasonableness and proportionality of each of the factors set out in r. 24(12) of the FLRs, as they relate to the importance and complexity of the issues. I have also considered the purpose of the modern family costs rules: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[46] I find the time spent by the mother’s lawyer to be reasonable and the rate charged is appropriate for the lawyer’s years of experience.

[47] With respect to the CAS’s behaviour, I am not prepared to find that they acted in bad faith and I am not prepared to award costs against them on a full indemnity basis. While I have found costs should be awarded against the CAS, I must also consider the rationale behind why child protection cases are an exception to the presumptive entitlement to costs, as set out above. I do not want to take away from the essential and usually exemplary work done by the agency and their frontline workers for the protection of children. This is not a case to award costs on a full indemnity basis. The mother should be entitled to recover 50 percent of the fees incurred for the appeal.

[48] Order to go as follows:

1. The Children’s Aid Society shall pay the appellant costs in the sum of $3,000.

Shore, J. Released: September 14, 2023

COURT FILE NO.: FS-22-00032561-0000 DATE: 20230914 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

T.M. Applicant – and – CHILDREN’S AID SOCIETY TORONTO (CAS TORONTO), A.L., and R.R. Respondents

REASONS FOR COSTS ENDORSEMENT Shore, J. Released: September 14, 2023