Jewish Family and Child Services of Toronto v. Y.B., 2011 ONCJ 633

Toronto (North York) Registry No. C4961/09 DATE: 7 April 2011 CITATION: Jewish Family and Child Services of Toronto v. Y.B. , 2011 ONCJ 633 ONTARIO COURT OF JUSTICE TORONTO NORTH FAMILY COURT B E T W E E N: ) ) JEWISH FAMILY AND CHILD SERVICE OF GREATER TORONTO ) ) ) LORNE GLASS , for the APPLICANT ) APPLICANT ) ) - and - ) ) Y.B., C.B., H.S AND S.S RESPONDENTS ) KENNETH A. COLE, for the RESPONDENTS, H.S. and S.S. Y.B and A.S. , acting in person C.B., not appearing A.S. PARTY ON MOTION ) ) ) ) ) ) ) ) HEARD: IN CHAMBERS JUSTICE S.B.

SHERR COSTS ENDORSEMENT Part One - Background [ 1 ] This is a decision on costs requested by the Jewish Family and Child Services of Greater Toronto (the society) against the respondent, Y.B. (the father).

[ 2 ] The father’s two children, Y.B., born on August […], 2009 and S.B., born on November […], 2007 were apprehended from his care on December 8, 2009, after Y.B. presented at the Toronto Hospital for Sick Children with serious injuries that the medical professionals believed were caused non-accidentally. Y.B. has remained in society care since that date. He has intensive special needs which require significant attention by his caregivers. S.B. was placed with her maternal grandparents, the respondents H.S. and S.S on January 29, 2010.

She remains in their temporary care and custody subject to society supervision. The father exercises supervised access to the children. Sadly, the children’s mother, C.B., has been in a vegetative state since suffering complications during Y.B.’s birth. [ 3 ] The society is seeking a finding that both children are in need of protection. They are seeking dispositions of crown wardship with no access for Y.B. and custody of S.B. to the maternal grandparents pursuant to

section 57.1 of the Child and Family Services Act (the Act). The maternal grandparents are not planning for Y.B. due to his intensive special needs. The father opposes a finding that the children are in need of protection, seeks a dismissal of the society’s protection application and asks that both children be returned to his care. [ 4 ] On July 12, 2010, the parties consented to an assessment of the father pursuant to

section 54 of the Act. This was conducted by a psychologist, Dr. Nitza Perlman. Dr. Perlman’s assessment dated September 23, 2010 has been filed with the court. Dr. Perlman was inconclusive about the father’s ability to care for the children. She expressed concerns about his judgment and felt that he would require assistance to care for them. She identified A.S., as an integral part of the father’s plan to care for the children. A.S. was the father’s new partner at the time the assessment was conducted and was being proposed by him as a primary caregiver.

A.S. had been one of two nannies who shared caring for the children at the time Y.B. was injured. The father and A.S. are two of the three persons suspected of causing Y.B.’s injuries (the other person being the second nanny). The police have chosen not to lay criminal charges due to uncertainty as to who caused the injuries. Dr.

Perlman reported that to properly evaluate the father’s plan she would need to assess the father and A.S. together, as well as A.S. separately. [ 5 ] The society indicated that they were prepared to seriously consider the plan of the father to care for the children with A.S., if they both participated in the proposed supplementary assessment with Dr. Perlman, and the results were positive. They viewed this as a potential avenue towards resolution. [ 6 ] At a case conference held before me on November 16, 2010 the parties and A.S. orally indicated their agreement that Dr.

Perlman conduct the supplemental assessment. The questions for Dr. Perlman to address still needed to be agreed upon. I endorsed that these questions could be submitted to me on consent by Form 14B motion for approval. I never received these questions and an order for the assessment was not made. [ 7 ] Shortly after the case conference the father and A.S. notified the society that they would no longer consent to the assessment.

The father became evasive with the society workers about the true nature of his relationship with A.S.; he gave inconsistent information to them as to whether they were planning together or whether they had separated. The father’s counsel did not answer society inquiries about the father’s intentions. [ 8 ] Due to this uncertainty with the father’s plan, the society brought their motion for the

section 54 assessment of A.S. and A.S. together with the father. The society had legitimate concerns about A.S.’s role in the father’s plan due to her possible involvement in Y.B’s injuries and the inconsistent information they were receiving about the nature of her relationship with him. [ 9 ] The father and A.S. would not reveal A.S.’s address to the society which required the society to move for substituted service of the substantive motion upon her. This order was granted. Part Two – The motion [ 10 ] The society’s motion was heard on March 10, 2011.

The father was very emotional at this hearing, frequently interrupting counsel and having to be redirected. It was unclear from his counsel’s initial submission as to whether the father was actually intending to plan with A.S.. I spoke next with A.S. who indicated that if the father consented, she would also consent to participating in the supplemental assessment. The matter was held down for discussions. [ 11 ] On the return of the matter, the father’s counsel advised the court that A.S. was not going to be part of the father’s plan and that he was prepared to be bound at trial by this representation.

He also asked if his client could address the court and this was permitted.

The father confirmed that A.S. would not be part of his plan to care for the children, that she would not live with him if the children werereturned to his care and that he will only ask the court at trial to permit A.S. to have contact with the children. The father was adamantlyopposed to any further assessment or delay in the hearing of the case. On this basis, the society’s motion was dismissed.

I found that theprobative value in assessing A.S., in light of the father’s representation that she would not be part of his plan, did not exceed thedetrimental effect of the further delay that the assessment would cause. Y.B. has already been in the society’s care beyond the 12 monthstatutory time limit that a child is permitted to remain in society care as a society ward as set out in clause 70 (1) (

a) of the Act. [12] I endorsed the record that I would have granted the society’s motion if A.S. was going to be part of the father’s plan to care forthe children. The probative value of obtaining a thorough psychological evaluation of A.S., and an assessment of her relationship with thefather, if she were to be a primary caregiver of the children, would have exceeded the detrimental effect of a delay in the case. [13] The case was placed on the trial assignment court list for April 13, 2011. [14] At the conclusion of the motion the society sought costs from the father.

The society argued that if the father had responded totheir inquiries and clearly stated, as he did at the hearing of the motion, that A.S. would not be part of his plan to care for the children, thesociety could have saved the time and expense of the motion for an assessment. I gave the society the opportunity to make writtensubmissions and set out timelines for these submissions and any written response.

Part Three – The costs submissions [15] The society filed written submissions seeking their full indemnity costs from the father of $7,199.76 arising out of both theassessment motion and the motion for substituted service on A.S.. The maternal grandparents filed submissions taking no position on thecosts issue. They did not seek costs from the father. [16] The father was represented by counsel when the substantive motion was heard on March 10, 2011. He filed a Form 4 Notice ofChange in Representation (to act in person) on March 17, 2011. He has advised the court that he intends to represent himself at trial.

Thefather in his costs submissions opposes any order for costs against him. He claims that he made his position clear to the society inFebruary of 2011 that he was planning alone, and that the society’s motion was unnecessary. [17] Based on my review of the evidence filed on the motion and upon hearing submissions from everyone involved, it was clear thatthe father’s plan, with respect to A.S., remained a moving target up until the hearing of the motion and that the society was justified inbringing it.

Part Four – The Law [18] Sub-rule 24 (2) of the Family Law Rules sets out that in child protection cases there is no presumption that the successful partywill be entitled to costs. The rationale for making child protection cases an exception to the presumptive entitlement to costs stems fromthe fact that a children's aid society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is inneed of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations.

Parents, on the otherhand, are generally insulated from claims for costs in such proceedings because when faced with state intervention in the care andupbringing of their children, they have a right to force the state to prove its case and should not be penalized in costs. See: Children’s AidSociety of Ottawa v. S. (ON SCDC), [2003] O.J. No. 945 (Div. Ct.). [19] The case law has set out that where a society seeks costs from a parent this will only be ordered in exceptional circumstances.See: Children’s Aid Society of Ottawa- Carleton v. V. [2001] O.J.

No. 2147 (SCJ). [20] In Children’s Aid Society of London and Middlesex v. J.B. and B.B. (2000) (ON SC), 11 R.F.L. (5th) 43(SCJ), the court denied a costs request by the society based on the father’s conduct despite the fact that he had ignored all reasonableefforts to settle the matter, took an unreasonable position at trial and insisted that the children be produced to testify about their wishes,notwithstanding medical evidence that testifying would be traumatic for the children.

The court found that parents need to be grantedconsiderable latitude to defend their familial position when they are faced with the possible removal of their children from their care. [21] In Children's Aid Society of the Niagara Region v. L.J.R. (ON SC), [2005] O.J. No. 4455 (SCJ) the court did

not find bad faith on the part of the father and declined to award costs to the mother. At paragraph 9 Scime J. stated that: The father was not an ordinary litigant protecting a property or financial interest. He was faced with state intervention in the care andupbringing of his children and had the right to compel the society to prove its case and he should not be penalized in costs for exercisingthat right. [22] In Children and Family Services for York Region v. A.S., 2010 ONSC 1287 , [2010] O.J.

No. 872 (SCJ), Justice HeatherMcGee wrote at Par. 16: Parents who find themselves adverse in interest to a society are generally insulated from a claim for costs. They are to be givenconsiderable latitude in defending their case and to require the society to prove its case.

Costs are not to be awarded against a parentexcept in unusual or exceptional cases, even in the face of difficult conduct: Unless unreasonable conduct is so excessive as to warrant condemnation, thereby putting the case into the category of one of those "rare"cases warranting a cost consequence, I find that the parent's right to oppose a child protection proceeding should not be lightly interferedwith, even in cases where, with the benefit of hindsight the manner and the nature of the defence presented by parents may be consideredto have been excessive and unreasonable.

Kenora-Patricia Child & Family Services v. (M.A.), [2007] W.D.F.L. 1732. Part Five – The dynamics of a child protection case [23] The “exceptionality” threshold set out in the case law makes sense. In child protection cases the court is often dealing with themost vulnerable people in our community. Many of the parents that the court sees have significant challenges in their lives. Theapprehension of their children is a tremendous blow to their sense of identity.

It is humiliating to be accused in their community as beingeither an abusive parent or so inadequate a parent that their children have to be removed from their care. It is understandable why it isoften difficult for parents to initially accept any responsibility for the apprehension of their child; the alternative is very difficult tocontemplate. Parents in these situations have to deal with difficult emotions such as anger and shame when they are often very ill-equipped to deal with these complicated emotions. These emotions often result in the parent being distrustful of the professionalsinvolved in the case.

If these emotions are not redirected the parent can become difficult and very frustrating to deal with. They oftenbecome paralyzed in taking the positive steps necessary to achieve the return of their children and can present as unfocused, angry anddisorganized. [24] These emotions and their fallout create several challenges for child protection workers, lawyers and courts.

This court dailyobserves the significant skills of society workers, as well as child protection counsel (both society and parents’ counsel) who understandthese complex emotions, build bridges with these parents, provide them with clear direction to address the risk concerns and maximizetheir opportunity to have their families reunified. The court also daily observes parents who faced with these challenges showconsiderable growth and courage in addressing their deficits and who are not only able to reunify their family, but end up as muchstronger parents in the process.

These parents develop the ability to work cooperatively with the society to maximize their opportunity tosucceed. [25] Working cooperatively with a society does not mean that a parent has to admit an allegation if it isn’t true. If necessary, there willbe a trial to decide the issue. However, a parent can significantly improve their chances of success if they work cooperatively with thesociety to mitigate the risks that the society is concerned about; to demonstrate to both the society and the court that they are capable ofsafely parenting the child and that any risk concern has been attenuated.

It is usually the quickest avenue to obtain the return of a child.Most parents take this approach and in child protection court most children who have been apprehended by the society are eventuallyreturned to their families. [26] The reality though is that the parent’s emotional transformation is often a gradual process. There is often a race against time thattakes place. Can the parent establish sufficient insight and growth to be able to address the risk concerns and prove that he or she canadequately parent the child before the statutory timeline in the Act runs out?

The longer the parent remains emotionally frozen, the lesslikely it is that they will succeed. [27] This court encounters multiple circumstances on child protection list days where, if it applied the same standard it uses inordering costs in non-child protection cases, it would order costs against parents for a variety of reasons, such as coming late to court,failure to file or late filing of relevant documents, failure to follow through with directions or supervision terms, or engaging inunreasonable behavior.

The behaviour is usually reflective of the very risk concerns that have brought the parent before the court in thefirst place. This behaviour is usually more prevalent in the initial stages of the case, when the parent is still very angry and unfocused. Ifit is happening later in the case it is usually indicative that the parent’s case is in trouble.

[ 28 ] While one might argue that a reasonable litigant has no reason to fear a costs order, the reality is that lowering the exceptionality standard for costs could have serious adverse and unjust consequences to the child protection process. Parents who are already facing the significant resources of an institutional litigant may become more reluctant to advocate their case. Costs orders, even small ones, could reinforce a parent’s mind-set that the system is punitive, determined to take their children away and not designed to assist their family.

A costs order could have the inadvertent effect of sabotaging the opportunity to work in a more positive manner with that parent. Courts have to be mindful of this when deciding costs issues in child protection cases. Part Six – Analysis of costs claim against the father [ 29 ] The father’s behaviour must be examined in the context of these complicated dynamics. He is clearly an intelligent man who is going through an emotionally difficult period in his life. His wife has been in a vegetative state since Y.B. was born. This left him to care for two young children.

His son was seriously injured and has suffered long-term damage. The evidence at this point is that the child’s injuries were not accidental. The father remains a suspect in causing these injuries. He has been accused of delaying the obtaining of medical treatment for the child and this may have exacerbated his condition. He denies responsibility for the child’s condition. Both of his children were removed from his care, in his mind, unjustifiably. His access remains supervised. [ 30 ] The father presents as angry, frustrated and mistrustful. He has presented his case in a disorganized manner.

He did not seek a temporary care and custody hearing. He has not brought a motion to increase his access. The case has been adjourned several times at his request , yet he expresses frustration with delay. He did not meet the initial deadline to respond to the society’s costs submissions. The extension to file them was granted because I raised this issue at the settlement conference on March 28, 2011; I preferred not to proceed on this important issue without his input. Given this emotional stew it is not surprising that he dealt with the assessment issue in the manner he did.

He appears to trust no one in authority. He does not trust that an assessment will be fair. In his costs submissions he states that he has been the victim of a “witch-hunt”. He has vacillated on what his plan for the children will be and has been reluctant to share his actual intentions with the society, based on the belief that whatever is revealed will somehow be used against him. He has been unable to achieve a level of trust with the professionals in this case which would permit him to move forward in a cooperative manner.

He has placed himself in a difficult position at trial if the children are found to be in need of protection. I do not, at least at this stage, find that his actions are grounded in bad faith, but rather in his emotional turmoil, based on the circumstances surrounding the apprehension of his children. [ 31 ] Undoubtedly the society will be relying on the father’s conduct throughout this process in support of their position that he lacks the necessary judgment and stability for the children to be safely placed in his care.

They will likely argue, if the children are found to be in need of protection, that his secrecy, mistrust and lack of cooperation make him a poor candidate for a supervision order. I find that the trial will be the appropriate forum to thoroughly address his actions. [ 32 ] Put simply, the father behaved poorly, but not poorly enough to meet the exceptionality standard set out in the case law to attract a costs order in favour of the society. [ 33 ] I wish to make it clear to the father that this decision does not give permission to a parent to act unreasonably in a child protection case.

The issue of costs must be decided on a case-by-case basis. Where a court finds that a parent is bringing frivolous motions, or engaging in serious, unjustifiable behavior, exercising bad faith or abusing the process, a costs award will likely follow. For example, in Catholic Children’s Aid Society of Toronto v.

L.D.H ., 2009 ONCJ 677 , Justice Robert Spence ordered costs of $250 against a self- represented parent, where he found that she was intelligent and had intentionally abused the court process. [ 34 ] Courts have also been more willing to award costs as between competing parties (not the society) in child protection cases where one party incurs significant costs due to either the bad faith or seriously unreasonable behaviour of another ( See: Children and Family Services for York Region v.

A.S. , supra , for a thorough review of the law in this area and where the trial judge ordered the mother to pay the father her trial costs of $160,000). I suspect that the closer the protection application resembles a custody/access proceeding, the more willing the court will be to order costs between parties with competing plans to care for a child. The father needs to keep this in mind in deciding how he will conduct himself for the balance of this case, particularly with respect to his competing claim with the maternal grandparents to care for S.B.. [ 35 ] There will be no order for costs.

___________________________ Justice S.B. Sherr Released: 7 April 2011