COURT FILE NO.: FS-18-5789
DATE: 2023-12-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kenora-Rainy River Districts Child and Family Services
Appellant (Respondent in this Appeal)
- and -
P. N. R. and K. R.
Respondents (Appellants in this Appeal)
Counsel: Mr. D. Elliott and Ms. J. Clouston for the respondent Society P.N.R. personally and as agent for K.R.
HEARD: via Zoom at Kenora, Ontario on November 23, 2023
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.
Madam Justice H. M Pierce
Costs Endorsement
Background
[1] The appellants, P.N.R. and K.R., appealed the summary judgment of Justice Hoshizaki that found their children in need of protection pursuant to s. 37(2)(a)(i)-(ii) of the Child and Family Services Act, (since repealed). Subsequently, P.N.R. pleaded guilty in criminal court to a charge of assault on the party’s son. The charge that K.R. had assaulted the party’s daughter was withdrawn in mental health court.
[2] The appellants then appealed the summary judgement decision, which was dismissed with reasons and released on June 23, 2023. See: Kenora-Rainy River Districts Child and Family Services v. P.N.R. & K.R., 2023 ONSC 3789.
[3] In this case, the respondent Society claims substantial indemnity costs of the appeal fixed of $44,703.60 inclusive of fees, disbursements, and HST. These costs relate only to Mr. Elliott, whose hourly rate is $325.00 per hour. This is a reasonable rate for counsel of Mr. Elliott’s experience.
[4] The Society does not claim costs for its in-house counsel on the appeal; nor does it claim costs reserved by Justice Fregeau in the motions he previously decided.
[5] The appellants also filed a bill of costs at this hearing. It includes costs claimed for self-representation, administrative costs, transcripts, mileage, and limited retainer costs for the appeal, totalling $44,564.78.
The Legal Framework
[6] Costs are in the discretion of the court and are dealt with in a summary fashion. They do not permit the parties to re-argue the merits of the case. Only costs that are reserved to the appeal judge and the costs of the appeal itself may be determined by the judge who heard the appeal. The appeal court has no jurisdiction to award costs of the summary judgment motion heard in the Ontario Court of Justice.
[7] Costs are dealt with at Rule 24 of the Family Law Rules (FLR). The relevant subrules for this case are as follows.
[8] First, although Rule 24(1) provides that the successful party is entitled to costs, that presumption is qualified by Rule 24(2) which specifies that the presumption does not apply in child protection cases or to a party that is a government agency.
[9] Rule 24(3) gives a court jurisdiction to award costs to or against a government agency, regardless of whether the agency is successful. In this case, the Society was successful in resisting the parents’ appeal.
[10] Rule 24(4) provides that if a successful party has behaved unreasonably, that party may be deprived of its costs or ordered to pay the unsuccessful party’s costs.
[11] Rule 24(5) sets out the following criteria for deciding on the issue of reasonableness:
(5) Decision on Reasonableness: In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour 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.
[12] Rule 24(8), deals with bad faith, which was argued in this case. This section states that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
[13] Rule 24(12) prescribes considerations in fixing the amount of costs:
(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 behaviour,
(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.
[14] Rule 24(12.1) provides that claims for costs shall be supported by documentation satisfactory to the court. Rule 24(12.2) provides that a party opposing a claim for costs shall provide documentation showing the party’s own costs.
The Society’s Position
[15] The Society submits that the appellants engaged in bad faith litigation when they appealed the child welfare finding of physical harm to the children without further disposition when the father had pleaded guilty in criminal court to a charge of assault on the parties’ son.
[16] The Society cites numerous examples of bad faith:
a. In a motion to admit fresh evidence, decided by Justice Fregeau on January 23, 2019, the appellants sought to admit fresh evidence transcripts that they claimed would show that the Society had engaged in perjury and misleading evidence; however, no such evidence was produced.
b. Justice Fregeau dismissed the appellants’ motion to add Thunder Bay C.A.S. as a party and to transfer carriage of the file to it. Justice Fregeau reserved costs of these motions to the appeal judge.
c. As part of their appeal of the child welfare judgment, the appellants initially alleged ineffective assistance of counsel. However, that matter was settled when the appellants signed minutes of settlement that withdrew their allegations and agreed that they would not allege ineffective counsel at the appeal. Nevertheless, they continued to do so during the appeal, alleging they were unaware of the Society’s pleadings in advance of the protection hearing.
d. In a motion on August 28, 2018, P.N.R. sought to adduce evidence that the Society’s counsel colluded in the dismissal of a social worker.
e. P.N.R. alleged in his affidavit sworn August 28, 2018, that the Society’s counsel should be called as a witness due to a conflict of interest.
f. The affidavit of P.N.R. dated August 30, 2018, seeks recusal of the Society and its counsel in the summary judgment motion on the grounds of colluding to file misleading affidavits and to terminate a social worker whom he believed supported the appellants’ position and whose evidence would exonerate them.
g. The appellants filed a complaint to the Office of the Ontario Child Advocate in September 2018 alleging impropriety by the Society, but the investigation did not find impropriety.
h. K.R.’s affidavit, dated July 6, 2018, alleged that a social worker’s affidavit was misleading and erroneous, whereas the appeal court held that the social worker had no obligation to file affidavit material on the parents’ behalf.
i. In an email to Society’s counsel dated March 14, 2023, P.N.R. accused counsel of making false statements on the record, engaging in institutional racism and colluding with Superior Court judiciary. P.N.R. demanded that the appeal not be heard by any Superior Court judge who had ever had dealings with the Kenora Children’s Aid Society.
j. In an email dated March 14, 2023, sent to the Superior Court and Mr. Elliott, P.N.R. complained of a costs order made against him during a contested adjournment, he accused counsel of making false or misleading comments, and he sought the replacement of Justice Fregeau with another judge who was “previously uninvolved with the Society.”
[17] The Society submits that all of these baseless allegations “call into question the legitimacy of the court process and arguably bring the administration of justice and its statutory litigants into disrepute.”
The Appellants’ Position
[18] The appellants submit that the presumption that the successful party should be awarded costs does not apply in a child welfare proceeding, and therefore, no costs should be awarded. Alternatively, they submit that each party should bear their own costs of the appeal.
[19] The appellants submit that a costs award will adversely impact the children, especially A.R. who is two years away from attending university. The appellants’ bill of costs disclosed $43,500 paid to counsel representing them in the child welfare and criminal proceedings and a further $44,564.78 in costs for self-representation and limited retainer counsel to prepare the appeal.
[20] P.N.R. was asked about the parties’ incomes, and he acknowledged that his annual income as a police officer is $100,000, and estimated K.R.’s income as a nurse at $50,000.
[21] The appellants also submit that a costs award will have a chilling effect, discouraging “vigorous presentation” in child protection proceedings by the fear of a costs award.
[22] The appellants’ offer to settle proposed that the Society withdraw its application and they would not seek costs.
[23] The appellants submit that they acted reasonably and in good faith in this proceeding. However, in the costs argument, P.N.R. raised many of the same allegations that were advanced in the appeal. Their arguments can be summarized as follows:
a. that they should have been given the option of avoiding court proceedings and would have agreed to a finding that the children were at risk of harm;
b. that one social worker on the Society’s staff was dismissed because she supported the appellants’ position;
c. that the Society engaged in institutional racism, to the extent that their file should be transferred to the Thunder Bay Children’s Aid Society and alleging that, as a minority family, they were disproportionately impacted;
d. their representation at trial was ineffective, such that they were unaware of the Society’s intention of claiming a declaration based on s. 37(2)(a) grounds;
e. disputing that the corporal punishment resulted in injury, notwithstanding P.N.R.’s guilty plea to a charge of assault;
f. the Society’s social worker filed misleading evidence;
g. the Society’s counsel made false statements; and
h. alleging that Justice Fregeau was not impartial and should recuse himself from hearing the appeal, even though no motion for recusal was brought.
Discussion
[24] Many of the issues raised by the appellants on the costs argument seek to re-litigate arguments made at the appeal.
[25] The appellants refused to accept any blame in the use of corporal punishment against their children and sought to minimize their responsibility for it by shifting responsibility to the Society, its social workers and lawyers, or to the court. They called into question the reports made by their children to the Society and to others about physical assaults. Because some of these incidents were historical in nature, they pointed to a lack of medical evidence documenting the assaults, describing them as trifling.
[26] Although P.N.R. argues that they would have consented to a finding that the children were at risk of harm, no such proposal was included in their offer to settle. The appellants’ offer merely proposed that the Society withdraw its protection application without costs.
[27] The agreed statement of fact filed with the criminal court on P.N.R.’s guilty plea to assault on his son does not negate the seriousness of the impact of this behaviour for the children, which the appellants continue to deny.
[28] The Society is obliged, by its statutory duty, to investigate allegations of child abuse and to take steps to protect children, including steps to prevent future abuse, should it recur. One of the Society’s tools for protection is to seek declaratory relief from the court, where indicated. There is nothing inappropriate about this course of action, mandated by child welfare legislation.
[29] Many of the allegations made by the appellants were not sustained in fact, even though the parties were each represented by counsel at the summary judgment motion. For example, the appellants maintained that a social worker was dismissed because she disagreed with the Society’s position in the appellants’ case. They also alleged that Mr. Elliott was involved in the dismissal. They implied that he attempted to prevent the social worker from testifying in their case.
[30] There was no evidence whatsoever to support this contention; it was simply made up. This allegation served the appellants’ agenda, which was to blame the Society for the investigation against them. Nevertheless, the allegation required the Society to deal with it at trial, on appeal, and again in this costs argument.
[31] The appellants claimed that, as a minority family, they were disproportionately impacted by the Society’s racist approach to their case. They pointed to policy papers published by the Ontario Association of Children’s Aid Societies and the Ontario Human Rights Commission to make their point. This submission was made in the abstract; however, there was no evidence to support it on appeal. Indeed, an investigation by the Office of the Ontario Child Advocate into alleged impropriety by the Society, did not result in a finding of any impropriety.
[32] The appellants blamed their counsel for ineffective representation during the child welfare hearing and sued them. Subsequently, they settled their litigation and undertook not to raise this issue on appeal. However, references were made in their appeal factum to ineffective assistance of counsel during the child welfare proceeding.
[33] P.N.R. submits this was simply a drafting error when the factum was prepared. I do not accept this submission. The appellants took care to include the minutes of settlement ending litigation with their former counsel in the appeal record, implying that there were issues with their legal representation on the summary judgment. This is a further example of the appellants’ efforts to shift blame away from their own conduct.
[34] The appellants allege that a social worker’s affidavit was misleading and erroneous because it did not contain the mother’s position that conflicted with her children’s evidence. There is no foundation for this claim. The social worker reviewed with the children their allegations of abuse before the summary judgment motion was heard to determine whether the children’s accounts had changed since their earlier statements. They had not.
[35] The appellants disputed their children’s account of abuse in the home, but the trial judge found that the children corroborated each other’s accounts and were credible. On appeal, I held that the parents had individual counsel, and the social worker had no obligation to file affidavit material on the parents’ behalf.
[36] The last two submissions of the appellants are the most egregious and demonstrate bad faith.
[37] The appellants repeatedly made allegations that Mr. Elliott made false statements to the court, implicitly accusing him of racism, unprofessional conduct, and colluding with the court. These are very serious allegations indeed because they had no basis in fact.
[38] Beyond that, there is no greater damage to a lawyer’s professional reputation than to accuse him or her, without proof, of unethical conduct. The courts have long recognized that a professional reputation is the work of a lifetime. It is the currency by which lawyers are known. To willfully attempt to destroy a lawyer’s reputation, without grounds, calls for elevated costs sanctions to show the court’s disapproval of such reprehensible conduct. For that reason, substantial indemnity costs are warranted here.
[39] In 1013952 Ont. Inc. et al v Sakinofsky et al, 2010 ONSC 411, substantial indemnity costs were ordered at para. 13, where I discussed the ramifications of maligning a lawyer’s reputation:
[S]currilous allegations against a lawyer affect far more than his ability to earn a living. Allegations of impropriety against one lawyer invariably reflect adversely on all lawyers. Such allegations lessen the dignity of the legal profession in the eyes of the public. By extension, the work of the court is also disrespected.
[40] The court took a similar view that a “robust response” was required in ordering elevated costs when counsel’s reputation was disparaged in a child welfare case, E.K.B. v. Jewish Family and Child Services, S.K.B. and R.G., 2020 ONSC 2924, at para. 14.
[41] Finally, the appellants alleged, without proof, that Justice Fregeau was not impartial and should recuse himself from hearing the appeal, even though no motion for recusal was brought. They also suggested to Society’s counsel that no judge who had previously been involved with the Society should hear the case, implying that the rest of the Superior Court bench was not impartial.
[42] This is perhaps one of the most egregious examples of bad faith because it calls the administration of justice into disrepute. In these circumstances, substantial indemnity costs are warranted to express the court’s disapproval of the appellants’ reprehensible conduct.
The Quantum of Costs
[43] The appellants submit that their children will be harmed if costs are ordered against them. I do not accept this submission. The appellants spent $23,500 for criminal counsel and $20,000 for legal services for one lawyer in the child welfare matter. The appellants do not disclose the fees paid to the other lawyer in the child welfare matter, saying only that the costs were “covered by church.”
[44] The appellants claim to have incurred $44,564.78 for appeal costs, which includes P.N.R.’s costs for self-representation (which he values at $12,800), plus administrative costs, mileage, transcripts and assistance of counsel.
[45] These figures establish the reasonable expectations of the unsuccessful parties with respect to the risk of costs: Rule 57.01(1)(0.b) of the Rules of Civil Procedure, and r. 24(12.2) of the FLR. The appellants have a combined family income of at least $150,000. They are not impecunious.
[46] Although it might do so, the Society has not claimed costs reserved by Justice Fregeau in the interlocutory proceedings prior to the appeal, nor does it claim costs for in-house counsel.
[47] The filings in the appeal were voluminous; the court file alone required three bankers’ boxes and took several days for the court to review. I accept that Mr. Elliott’s bill of costs for the appeal and costs argument, all billed at $325 per hour, are reasonable. The true cost to the Society if the time for in-house counsel were considered, would be much greater.
[48] Accordingly, the appellants shall, jointly and severally, pay to the Society its costs of the appeal fixed at $44,703.60, including disbursements and HST.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: December 18, 2023
COURT FILE NO.: FS-18-5789
DATE: 2023-12-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kenora-Rainy River Districts Child and Family Services
Applicant (Respondent in this Appeal)
- and -
P. N. R. and K. R.
Respondents (Appellants in this Appeal)
COSTS ENDORSEMENT
Pierce J.
Released: December 18, 2023