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.
OSHAWA COURT FILE NO.: FC-21-24-01
DATE: 20231218
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Durham Children’s Aid Society
Clem Nabigon, for the Applicant (“the Society”)
Applicant
- and -
J.S.
On her own behalf, although she did not participate respecting costs
Respondent Mother
- and -
S.M.
On his own behalf
Respondent Father
- and -
C.C.
Cassandra Baars, for the Respondent C.C.
Respondent, Kin Caregiver
HEARD: IN WRITING AND ORALLY ON DECEMBER 12, 2023
REASONS FOR DECISION ON COSTS
JUSTICE ALEX FINLAYSON
PART I: OVERVIEW OF THIS RULING ON COSTS
[1]. On September 27, 2023, this Court heard a motion in a Status Review proceeding. The motion followed the father’s inappropriate departure with the child, A., from Ontario. A. was in the care of the father, but also subject to the Society’s supervision under a Final Supervision Order, when the father left Ontario. Both the mother and C.C. held access orders.
[2]. This Court released its Reasons for Decision on October 16, 2023: see Durham Children’s Aid Society v. J.S., 2023 ONSC 5823. I did not authorize the move. Rather, in addition to ordering the child back to Ontario, I varied the Final Supervision Order and placed the child in the temporary care and custody of C.C.
[3]. This ruling on costs should be read in conjunction with the Court’s Reasons for Decision of October 16, 2023.
[4]. C.C. now seeks her full recovery costs of the motion in the amount of $25,351.55. She argues bad faith. She asks the Court to order these costs against the father and the Society, jointly and severally. She also seeks recovery of the costs she incurred to travel to New Brunswick to retrieve the child following my order for the child’s return to Ontario.
[5]. The father argues an inability to pay.
[6]. The Society disputes any responsibility for costs, except perhaps to the limited extent that it did not file certain evidence that it ought to have. Counsel argues that the Society did not direct the father to leave the province.
[7]. I am not finding the Society acted in bad faith, but that is not the test. I nevertheless agree with C.C. that there should be costs ordered in this case, against both the father and the Society. With the exception of C.C.’s claim for travel costs, I do not agree that the father and the Society should be jointly and severally liable. I find they are each differently responsible.
PART II: C.C.’S CLAIM FOR COSTS AGAINST THE FATHER
[8]. Modern costs rules are designed to foster three fundamental purposes: to partially indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) of the Family Law Rules adds a fourth, to ensure that cases are dealt with justly: see Mattina v. Mattina, 2018 ONCA 867 ¶ 10.
[9]. Rule 24(2) of the Family Law Rules removes the presumption of success in rule 24(1) that normally applies in costs determinations, whereas here, the case is a child protection case. Nevertheless, a parent is not immune from costs in a child protection proceeding in “exceptional and unusual circumstances”.
[10]. In Children’s Aid Society of Halton Region v. J.S., 2014 ONCJ 38, Zisman J. reviewed a number of cases in this regard. At ¶ 27, she wrote that 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 costs 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.
[11]. C.C. is not claiming costs against the father because he was vigorously opposing this protection proceeding. Quite to the contrary, this Court had already ordered the child’s return to the father, under the Final Supervision Order.
[12]. C.C. is claiming costs because the Status Review had just begun. The Court was made aware that the father wished to relocate. The Court set a process to be followed for that to be determined in short order. The father then discharged his counsel and left Ontario in very problematic circumstances. He disrupted the child’s important relationship with C.C. in the process.
[13]. The father did not have a well thought out plan when acting in this fashion. Despite the fact that the Court indicated twice before the motion was argued, that the parties needed to file proper relocation plans, that was not done. Even now, the father has yet to put before the Court a realistic plan to support the child’s relationship with the mother and C.C., where he to be permitted to live in New Brunswick with the child.
[14]. Moreover, the incomplete plan that the father did put together now may be unravelling (or at least it may very well not be as solid as he earlier maintained). For example, the Court was advised on December 12, 2023, that the grandfather, into whose house in New Brunswick the father relocated, and who was supposed to give the father much financial and other support, is now back in Ontario, due to health issues. The father is therefore living with his two other children alone in this house, apparently. Whether this is sustainable in the long term, this Court does not know. In fact, this new development underscores why the father, and the Society for that matter, ought to have proceeded with less haste, when it came to this move. These matters ought to have been better explored.
[15]. Regardless, I do not base my costs decision on these new developments. I find the father’s pre-motion conduct to have been unreasonable, and to have amounted to “exceptional and unusual circumstances” warranting an award of costs against him.
[16]. I recognize that the father is of limited means as he argued. In fact, this was one of his stated reasons for having left Ontario for New Brunswick to avail himself of the support of the grandfather. But those who can least afford to litigate should be incentivized to conduct themselves appropriately in litigation. I find the father would be hard pressed, after having acted in the very inappropriate fashion he behaved, now to argue that he should be insulated from costs consequences related to that very conduct, because of his finances.
PART III: C.C.’s CLAIM FOR COSTS AGAINST THE SOCIETY
[17]. Again, the presumption of success does not apply. At ¶ 13 of Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679, Chappel J. writes:
The special approach to costs claims against Children’s Aid Societies recognizes the extremely important and difficult task which those agencies are entrusted with, and the challenging judgment calls which child welfare professionals must make on a regular basis in carrying out their mandate to protect children. Child protection staff must be encouraged to err on the side of caution in favour of protecting children in situations where they have reasonable grounds to do so, without having the added burden whenever they are required to make difficult judgment calls of having to embark upon a taxing cost/benefit analysis as to whether they can financially afford to protect the child in question.
[18]. But pursuant to rule 24(3) of the Family Law Rules, the Court still has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful. At ¶ 14 of Children’s Aid Society of Hamilton v. K.L. and T.M., Chappel J. lists a number of principles that apply when costs are claimed against a children’s aid society. They are:
(1) Again, child protection agencies do not enjoy immunity from a costs award;
(2) The starting point in analyzing a claim for costs against a child protection agency is that special approach set out in ¶ 13;
(3) A Society should not be sanctioned through 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;
(4) The high threshold of “bad faith” is not the standard by which to determine a claim for costs against a child protection agency;
(5) Costs will generally only be awarded against a Children’s Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner;
(6) Important factors to consider in deciding whether costs against a Society are appropriate include the following:
• Has the Society conducted a thorough investigation of the issues in question?
• Has the Society remained open minded about possible versions of relevant events?
• Has the Society reassessed its position as more information became available?
• Has the Society been respectful of the rights and dignity of the children and parents involved in the case?
• In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society’s efforts to diligently carry out its statutory mandate of protecting children.
[19]. As set out above, C.C. argues that the Society behaved in bad faith. Aspects of C.C.’s submissions in this regard focused on the fact that the Society allegedly failed to act for 8 or 9 days, after C.C. first informed the Society that the father was gone. The Society disagrees that it failed to act. I addressed the debate in the evidence about this, at ¶ 96 of the Reasons for Decision.
[20]. I do not now find this for the purposes of costs, nor do I need to consider further whether the Society acted in bad faith more generally. Bad faith is not the standard.
[21]. I nevertheless find costs against the Society are appropriate in this case because:
(1) It was C.C., and not the Society, who first brought to the Court’s attention the fact that the father intended to move out of the province. The Society made no mention of this in the Status Review Application. C.C. also raised concerns about alleged criminal conduct on the part of the father since the Final Supervision Order. The Society didn’t properly take this into account in its assessments of the situation;
(2) After the Court ordered the child back to Ontario in August on a temporary without prejudice basis on C.C.’s 14B Motion, the Society then made the decision to support the father’s relocation. That was its prerogative. But having chosen to adopt this position, it was incumbent on the Society to undertake a proper assessment of the situation and to place proper evidence before the Court. I repeat again that there were two Endorsements of this Court setting out the kind of evidence needed for this motion. In this respect, the Society mirrored the conduct of the father;
(3) The Society did not comply with other directions the Court set out for the filing of evidence, for that matter either: see for example ¶ 60 to 62 of the Reasons for Decision;
(4) The Society was unprepared for the argument of its own motion. The Society made no submissions on the question of onus, citing an inability to do so. The Society then wanted the Court to allow for more time for a relocation plan and for access to be crafted;
(5) The Society undertook an incomplete assessment of the state of affairs in New Brunswick. Findings in this regard can be found at ¶ 100 to 106 of the Reasons for Decision. The Society itself even acknowledges this. At ¶ 9 of its written submissions on costs, the Society “acknowledges that it should have requested a more comprehensive assessment of the father’s plan in New Brunswick from the local CAS.”;
(6) But the Society also had a responsibility to do make its own assessment. I find it was irresponsible on the part of the Society not to have done so before signing onto the father’s plan. The Court already expressed its concern at ¶ 100 of the Reasons for Decision that the Society was condoning the father’s behaviour; and
(7) The Society was equally irresponsible in failing to recognize potential, ongoing protection concerns relating to family violence: see in particular ¶150 to 161 of the Reasons for Decision.
PART IV: ORDER FOR COSTS
[22]. Although her counsel was very prepared, C.C.’s Bill of Costs is too high for a motion of this nature. Proportionality and reasonableness are core principles when it comes to fixing costs in family law: see Beaver v. Hill, 2018 ONCA 840 ¶ 4 and 19.
[23]. While I would not order in excess of $25,000 in costs for a motion of this nature, I am prepared to accept C.C.’s counsel’s alternative submissions on quantum.
[24]. Taking into account the above, I find it proportionate and reasonable for the father to pay costs of $5,000.00 to C.C.
[25]. I also find it proportionate and reasonable for the Society to pay $5,000.00 to C.C.
[26]. There shall be orders in accordance with paragraphs 24 and 25 of these Reasons accordingly.
PART V: TRAVEL COSTS
[27]. In addition, C.C. should not have had to bear the costs to go and retrieve this child from New Brunswick once the Court ordered her return. Although the father was the one who removed the child from Ontario directly causing these costs to be incurred, this child was subject to the supervision of the Society under the Final Supervision Order. As such, it bears some responsibility for the child’s return to Ontario, but instead it decided to support the move.
[28]. I also note that the Society already consented to fund a trip for the father to come from New Brunswick to Ontario to have a visit with this child, between the date of my without prejudice Order that the child be returned, and the argument of the motion. The father then chose not to come to see the child.
[29]. As asked by C.C., I am prepared to make an order pursuant to rule 24(18), that the father and the Society are jointly and severally liable to reimburse C.C. for her travel costs in the amount of $2,349.15.
Justice Alex Finlayson
Released: December 18, 2023
COURT FILE NO.: FC-21-24-01
DATE: 20231218
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Durham Children’s Aid Society
Applicant
- and –
J.S., S.M., and C.C.
Respondents
REASONS FOR DECISION ON COSTS
Justice Alex Finlayson
Released: December 18, 2023