Children’s Aid Society of Waterloo Region v. P.D.A.T., 2011 ONCJ 628

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply with subsection 45(8), read as follows: 45.—

(8) 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. 85.—

(3) A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order of prohibiting publication made under clause 45(7)(

c) or subsection 45(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. Kitchener Registry No. 198/09 DATE: 17·III·2011 CITATION: Children’s Aid Society of Waterloo Region v. P.D.A.T. , 2011 ONCJ 628 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF THE REGIONAL MUNICIPALITY OF WATERLOO Applicant, — AND — P.D.A.T. J.C.W. Respondents Before Justice Margaret A.

McSorley Written Submissions re Costs last filed on 24 February 2011 Reasons for Judgment re Costs released on 17 March 2011 John A. Morscher......................................................................................... for the applicant society Walter W. Wintar ....................................................... counsel for the respondent mother, P.D.A.T. Cindy A. Martin-Hrycak ................................................. counsel for the respondent father, J.C.W. Mark M. Maurer............................................................ Office of the Children’s Lawyer for C.J.P.W.

JUSTICE M.A. McSORLEY:—

1: INTRODUCTION [ 1 ] Following an eleven-day trial that ended on 7 December 2010, judgment was rendered on 29 December 2010, placing the child C.J.P.W. with the respondent father under terms of supervision for a period of 9 months. The mother was granted access in the discretion of the society, with such access to occur every alternate weekend, if the society deemed supervision of access to be unnecessary. This was after a finding of protection had been made on 23 September 2010 based on the information contained in a statement of agreed facts, that C.J.P.W. was in need of protection pursuant to subclause 37(2)( b )(ii) and clause 37(2)(

g) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended. [ 2 ] On September 24, 2010, day 7 of the trial, at the end of the father’s evidence in chief, the mother advised that Mr. J.C.W. was not the father of the child and that she would be testifying to that fact and cross examining on that issue. It was determined that the trial would be stopped and that the parties would submit to DNA testing and the mother would provide an affidavit of paternity regarding C.J.P.W.’s father. [ 3 ] Mr.

J.C.W.’s position was that he had no knowledge that he might not be the father of the child; that he was the father of the child; and that although he would pay for the initial costs of testing, he intended to seek costs in the event DNA testing proved he was, in fact, C.J.P.W.’s father . The trial did not continue on the afternoon of September 24 th and was adjourned to November 16, 2010 to be spoken to. On November 16, 2010, the results of the DNA testing were not yet known and the mother was ordered to prepare an affidavit of parentage.

The trial was scheduled to resume on November 22, 2010. [ 4 ] On November 22, 2010, the primary worker in Kitchener, Ms. Slessor and the primary worker in Owen Sound, Ms. Edminson were called along with the MSW student to provide updating information about the mother. None of the information was related to the paternity issue. [ 5 ] On November 23, 2010 the father continued his evidence. He was permitted to reopen his evidence in chief to deal with the paternity issue and to advise the court of his position on disposition, having learned that he was not the biological father of C.J.P.W..

Approximately half an hour of his evidence in chief on that day was related to the paternity issue. The balance of the time was taken up with cross examination. On November 24, 2010 the father’s parents were called to give evidence. While both of them dealt with their knowledge and understanding of the paternity issue, their evidence was also required to indicate their support for the father’s plan to care for C.J.P.W. in their home. [ 6 ] The mother then opened her case on November 24 th calling one witness, Mr. Harrod and then started her evidence in chief.

On November 25 th , the mother called one of C.J.P.W.’s previous teachers and then continued her evidence. The mother’s evidence was completed on December 6, 2010 and closing submissions were made on December 7, 2010. [ 7 ] The breakdown of when the evidence was presented is necessary because the father is claiming costs for 7 days of what he terms was “wasted” court time. 2: ISSUES [ 8 ] The only issue is one of costs. The questions to be ansswered are:

a) Is the respondent father entitled to costs from the mother; and

b) If so, what amount of costs should be awarded to him? 3: POSITION OF THE PARIES [ 9 ] Neither the society nor the OCL made any submissions regarding costs. The father’s position was that 7 days of trial time was wasted as a result of the mother’s surprising statement that Mr. J.C.W. was not the father of C.J.P.W. on day 7 of the trial, and her lengthy evidence in chief attempting to explain her behaviour and rebut the allegation of excessive drinking. Due to the statement regarding C.J.P.W.’s paternity the trial had to be adjourned for DNA testing and preparation of an affidavit of parentage.

The mother’s position was firstly that the father missed the filing deadline for submissions on costs, filing his submissions on January 24, 2010 instead of January 21, 2010, and therefore his submissions should not be considered and in the alternative, the length of trial was not unduly lengthened by the mother’s disclosure and as such he should not be entitled to costs for 7 days.

In response the father’s lawyer indicated that the missed filing deadline was her mistake alone and that her client should not be penalized because the submissions were effectively one day late. 4: THE LAW [ 10 ] Generally, when dealing with the issue of costs in family matters, the two elements for determination of costs are entitlement and quantum. Rule 24 sets out the framework for determining whether costs should be awarded in a family law matter. However, Rule 24(2) provides that there is no presumption that a successful party is entitled to costs in a child protection case.

Clearly, this subsection was enacted to ensure that parents could defend their rights to care for their children without the usual costs deterrent in cases where the state was a litigant. 5: ANALYSIS [ 11 ] Prior to assessing the issue of costs on the merits, it is necessary to deal with the issue of whether the costs should be considered at all as a result of the father’s lawyer missing the filing deadline of Friday, January 21, 2010. Ms.

Martin-Hrycak responded to the information that she had missed the initial filing deadline by indicating that she had noted the date of January 24 th in her day planner in error. She had set aside time to prepare her submissions for costs in time for the date she mistakenly noted and did serve and

file her submissions by Monday January 24 th . Rule 3(5) of the Family Law Rules provides that a court may make an order to lengthen or shorten any time set out in these rules or an order, except with respect to the timelines set out in child protection cases. Although this was a child protection case, the issue of cost submissions is not part of the timelines contemplated by the rule. Had Ms. Martin-Hrycak been aware she was unable to meet a filing deadline and requested additional time to file her submissions, she would have been granted an extension to do so.

It is fairly regular practice to extend timelines for filing material and in this situation, there was no prejudice to the respondent mother in receiving the submissions one day later than ordered. If as a result of receiving the submissions late, the mother needed extra time to file her response, she too would have been granted that relief. Mr. Wintar was able to file his response in time and as such there was no prejudice suffered by the mother.

I am therefore, prepared to deal with the issue of costs on the merits. [ 12 ] The father sought costs in the amount of $13,872.16 comprised of $10,587.50 for counsel fees for 7 days of trial, disbursements for hair follicle testing and DNA testing, travel time and mileage for 7 days and HST. [ 13 ] Initially, the father submitted that it was the untimely disclosure that Mr. J.C.W. was not the father that both halted the trial and lengthened it by 7 days. There is no question that the disclosure did halt the trial at the lunch break on day 7.

I do not accept however, that the disclosure alone lengthened the trial. In reply submissions the father argued that the trial was also lengthened by the amount of evidence led by Ms. Treholm about the father’s behaviour surrounding his use of alcohol notwithstanding a hair follicle test that showed no overt use and about her own use of alcohol notwithstanding a hair follice test that showed an increase of three times the amount of alcohol use since the last test. Both tests put her in the chronic abuser category.

The father argued that in the face of “such a damning alcohol hair follice test” she insisted on conducting the trial to the very end. [ 14 ] The father also argued that the surprise disclosure that he was not the father of the child and the ensuing adjournment and necessity of DNA testing was emotionally difficult on the entire Winter family. Although he argued that the distress was increased due to the failure of Ms.

Treholm to attend in a timely manner to have the test completed, the fact is the allegation alone and subsequent need for the test was stressful to the family and the few days of added uncertainty did nothing to increase his costs or the time of trial. [ 15 ] As noted, this was a child protection case. Initially, the society sought an order of supervision with the mother. They later amended the relief sought and asked for a supervsion order with the father. When the amendment was sought, the society had no information that Mr. J.C.W. might not be C.J.P.W.’s father.

That knowledge might have changed their position, but there is no evidence of that. It was also clear that notwithstanding the confirmation that Mr. J.C.W. was not C.J.P.W.’s father, Mr.

J.C.W. and his parents remained committed to caring for C.J.P.W. indicating clearly he was their son and grandson. [ 16 ] It is important to note that at no time from the commencement of the protection application in June 2009 to the commencement of trial in September 2010, did the society apprehend the child or bring a motion to change his place of residence to his father, including the time after they amended the relief sought to one of supervision with the father. It was the father who brought a motion for a change in the interim care and custody of the child, which the society supported.

There was clear evidence that there were ongoing concerns about the mother’s care of the child. A hair follicle test in December 2009 showed mother to be a chronic abuser of alcohol. Despite this no steps were taken to remove C.J.P.W.. C.J.P.W.. missed a great deal of school while in his mother’s care. Despite this no steps were taken to remove C.J.P.W.. Ms. P.D.A.T.. was involved in a relationship with Scott English, with whom the society had concerns. Yet no steps were taken to remove C.J.P.W..

Finally, it was evident that the worker in Owen Sound was unable to work with the mother or obtain her cooperation in meeting the terms of the interim supervision order. Yet, notwithstanding this non- compliance, C.J.P.W. was not apprehended nor did the society bring a motion to have him moved to his father’s care. [ 17 ] Having regard to these facts, it is not surprising that the mother believed she should pursue an order continuing the placement of C.J.P.W. in her care. C.J.P.W. had lived with his mother all his life.

In child protection proceedings a parent has a right to put the society to the task of proving its case and the right to present all of the evidence necessary to attempt to dispute the claims made against them. I therefore do not attribute any fault or misconduct to the mother in pursuing her right to maintain the care of C.J.P.W. [ 18 ] I also do not find that the mother’s evidence was protracted in any significant way. The trial started on September 7 th . The society’s witnesses were presented on September 7, 8, 9, 10, 22, 23 and November 22, 2010. The society’s case took 6 ½ days to present.

The father’s case was presented on September 23, 24 and November 23 and 24, 2010. His case took approximately 3½ days to present. The mother’s case was presented on November 24, 25, 26 and December 6, 2010. Her case took approximately 4 days to present. Closing arguments were then completed on December 7, 2010. Considering the period of time the evidence had to cover, I do not find the length of time taken by any of the litigants to present their cases to be out of the norm.

I am not prepared to order costs to the father on the basis that the mother unduly lengthened the trial and increased the costs as a result. [ 19 ] The father is entitled however, to costs as a result of the mother’s behaviour in raising the issue of paternity 1½ years after the action was commenced and after submitting both sworn and unsworn documents for filing in the proceeding that clearly stated Mr. J.C.W. was C.J.P.W.’s father. Her actions in raising the issue at the break on the morning when Mr.

J.C.W. finished his evidence in chief had the result of wasting two half days of trial, the first when the matter could not proceed and the second when witnesses had to be recalled to deal with the issue. Therefore, her actions did have the result of lengthening the trial by one day and costing an additional disbursement in travel time for one day. I am also inclined to award Mr. J.C.W. the costs of the paternity testing as a result of Ms. Treholm waiting 8 years to raise the issue notwithstanding she had been involved in court proceedings in the past and was more than willing to have Mr.

J.C.W. named as the father for the purposes of support. This is an issue that either should have been addressed years ago or left undetermined after such a period of time. [ 20 ] For those reasons, I find that Mr. J.C.W. is entitled to costs from Ms. P.D.A.T. payable forthwith, as follows: 1 additional day of trial: $2,000 Travel time and mileage for additional day: $100 DNA test costs: $480.25

HST $335.43 Total $2,915.68 17 March 2011 Justice Margaret A. McSorley