Jewish Family and Child Services of Greater Toronto v. S.K., 2016 ONCJ 165

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

Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: 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) Idem: order re adult. — 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. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order 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. [ 1 ] COURT FILE NO. C-60417-13 DATE : February 5, 2016 CITATION: Jewish Family and Child Services of Greater Toronto v. S.K. , 2016 ONCJ 165 ONTARIO COURT OF JUSTICE RE: Jewish Family and Child Services of Greater Toronto – Applicant v. S.K. and J.K.- Respondents BEFORE: Justice C.J. Jones COUNSEL: Ms. Haley Gaber-Katz, for the Applicant

Mr. Anthony Macri, for the respondent parents Ms. S. Ahmed, counsel for the child, R.K. HEARD: By way of written costs submissions. Introduction : [ 2 ] This is the decision of the court pertaining to the issue of costs of a number of motions brought by the respondent parents and heard over the autumn of 2014. These motions occurred in the context of a highly contested child protection proceeding commenced by the society, in relation to the child, R.K., who was born in […], 1999.

R.K. was almost sixteen years of age at the date the motions were heard. [ 3 ] The motions of the parents, in respect of which costs are now being sought by the society, include their a motion to vary the temporary care and custody Order granted on May 10, 2014, their motion seeking to remove a medical report of the child’s former psychiatrist, Dr. C. Boucher, from the court record, five contempt motions brought by them against five individual staff members of the applicant society, as well as a further contempt motion made against the agency itself.

Each of their motions was dismissed on the merits. [ 4 ] The applicant society seeks its costs of these motions in the total amount of $14,700.00 for legal fees, plus HST and disbursements. The society has provided a breakdown of its costs claimed for each motion, as set out in its Bill of Costs.

The particulars of the claims for the three individual motions are referred to below. [ 5 ] The position of the parents is that there should be no order for costs, in relation to any of the motions. [ 6 ] The child’s counsel did not make a claim for costs and did not take a position in relation to the issue of costs of these motions, as between the parents and the society. Background and Litigation History : [ 7 ] The child, R.K., has been in the care of the society since February 20, 2013, initially pursuant to a temporary, without prejudice Order granted on that date.

The Order also provided that the parents would have temporary access to the child in the discretion of the society, taking into account both the child’s wishes and her treatment needs. [ 8 ] The child has significant needs and a number of diagnoses. She struggles with mental health issues and as a result, has faced social, academic and behavioural challenges over a long-standing period.

R.K. has a history of high risk behaviour and self-harm gestures, and requires a treatment placement as a result. [ 9 ] There have been ongoing difficulties in the child’s relationship with her parents, which precede the commencement of this application. She has made allegations of mistreatment against both of them.

The society has not verified the child’s allegations of either physical or sexual abuse by the parents. [ 10 ] At the time the protection application was first launched, the child was in a residential placement at Youthdale Treatment Centre (referred to as “Youthdale”) and was rejecting the involvement of her parents in her care and treatment. Accordingly, Youthdale found themselves without a treatment partner. An individual or agency was required, who could direct the child’s treatment while she remained at Youthdale, and who could guide her ongoing care, when she was to be discharged.

Due to the lack of a treatment partner, Youthdale had indicated an intention to discharge the child from its facility. This placed the child at risk, particularly if she was to be discharged from the treatment centre, given her history of self-harm behaviours, her need for ongoing residential treatment and her refusal to accept the oversight of her parents for any ongoing care she required. [ 11 ] Through-out the course of this litigation, the child has articulated an unwillingness to return to the care of her parents, and an opposition to having her parents direct her placement or treatment decisions.

The child has consistently expressed a wish to remain in the care of a child protection agency and has opposed the plans proposed by her parents for her care. The child has expressed that she wishes to have the society oversee her care and treatment. [ 12 ] On June 17, 2013 the society brought a motion seeking to withdraw its protection application. The parents supported this motion, however the child opposed the withdrawal. The child was also strongly opposed to the parents’ plan for her, if the society’s involvement with the family was to end.

The parents’ plan was to transport the child to a treatment placement in the State of Utah, U.S.A. If the child was refusing to go willingly, as she was articulating, the parents proposed that she would be transported there against her will. After receiving medical and other evidence filed on behalf of the child, the society subsequently withdrew its motion, with the result that the child remained in the society’s care. [ 13 ] The withdrawal of the society’s motion resulted in a profound change in the relationship between the society and the parents. The

parents were clearly disappointed and unhappy with the change in position of the society. This spurred a sharp decline in the parents’ level of communication and cooperation with the society, from June, 2013 onward. [ 14 ] In the following months, the parents’ resistance to the society’s involvement with the child and family continued to intensify. A temporary care and custody motion was before the court in April, 2014, and on May 10, 2014 the court released its decision on this motion.

For the reasons set out in the decision, the court granted a temporary Order placing the child in the care and custody of the society, subject to access between the child, her parents and siblings, in the discretion of the society, based on the finding that there was a risk that the child was likely to suffer harm, and that any less-intrusive order would not be adequate to protect the child. The order was no longer a without-prejudice order. [ 15 ] The parents appealed the decision on the temporary care and custody motion to the Superior Court of Justice .

Fresh evidence was filed on the appeal by both the society and the parents, detailing events that had transpired since the May 10, 2014 decision and the role of the parents since that date [1] . In the appeal, the parents were seeking an order placing the child in their care subject to the supervision of the society on terms and conditions. [ 16 ] The appeal was heard by the Honourable Justice F. Kitely on October 6, 2014. In their submissions on the appeal, the parents acknowledged, through their counsel, that they had demonstrated hostility, a lack of cooperation and resistance towards the society.

On October 8, 2014 the decision of the appeal court was released, dismissing the appeal launched by the parents and upholding the decision of this court on the motion .

In her decision, the appeal justice noted that the role that the parents had played was a key element in disposition at the temporary care and custody hearing, as well as a key element to the fresh evidence of what had transpired since that order was granted, up to the date of hearing of the appeal . [ 17 ] While their appeal of the temporary Order of May 10, 2014 to the Superior Court of Justice was pending, on September 12, 2014 the parents launched a further motion in this court, seeking to vary that same Order, such that both the appeal of temporary Order and the motion to vary the temporary Order were both pending at the same time.

In their motion to vary, the parents were seeking to have the child placed in their care unconditionally, with no supervision order. [ 18 ] The parents’ motion to vary was argued on November 25, 2014, only one and a half months after the dismissal of their appeal of the May 10, 2014 Order. The order being sought by the parents was the same order sought by them on the temporary care and custody motion heard in April, 2014.

The parents argued that there had been a material change in circumstances since the granting of the Order of May 10, 2014 and since the hearing of the appeal, which had occurred in the preceding month and on which they had filed fresh evidence. [ 19 ] The contempt motions brought by the parents against the society and its individual workers and the motion made by the parents seeking to have a medical report of the child’s former psychiatrist, removed from the court record, were heard on December 9, 2014.

The decisions on the motions were delivered together. [ 20 ] In its decision on the motion seeking to vary the temporary Order of May 10, 2014, the court found that there would be a real risk of harm to the child, if she were returned to the care of her parents at that time. The court noted that the concerns giving rise to risk to the child, which had existed in April, 2014 when the temporary care and custody motion was argued, continued to be present and had escalated. There had been no material change in circumstances that lessened the risk to the child, were she to be placed under the care of her parents.

The parents had not met the legal test for the variation of a temporary care and custody order. [ 21 ] In their contempt motion, the parents alleged that the society had failed to consult with them concerning the medical treatment of their daughter, notwithstanding the agreement in principle reached between the parents and the society, to the effect that the society would consult with them in advance of making any medical or health care decisions for the child.

The expectation at the time the agreement in principle was reached was that the parties would work together cooperatively, for the benefit of the child. [ 22 ] In its decision on the contempt motion, the court reviewed the legal principles relating to the civil remedy of contempt. The party alleging contempt has the burden of proof and must demonstrate an intentional breach of a term of a court order by the opposing party. The standard of proof is high; the breach must be proven beyond a reasonable doubt. [ 23 ] There are three essential elements to the finding of contempt against a party.

Firstly, the Order that was breached must state clearly and unequivocally what should and should not be done, secondly, the party who disobeys the Order must do so deliberately and willfully, and thirdly, the evidence must show contempt beyond a reasonable doubt. [ 24 ] The jurisprudence has established that the civil contempt power is to be used with restraint and in exceptional circumstances.

In the context of a child protection proceeding, the legal principles confirm that the court should always exercise prudence and restraint before making a finding of contempt against a child protection agency. [ 25 ] As well, the case law establishes that the civil contempt remedy is one of last resort and should be used sparingly in family law cases.

It should not be sought or granted in family law cases where other remedies and remedial options are available to the allegedly aggrieved party and have not been utilized. [ 26 ] In its decision on the contempt motions, the court noted that the parents were often uncooperative with the society, when the society sought to confer with them on matters relating to their daughter. The parents refused to attend any Plan of Care meetings with the society from June, 2013 onward, although the society continued to notify them of these meetings and invite them to attend.

The evidence on the motion confirmed that the child’s health and medical care were always discussed at these meetings. [ 27 ] The parents admitted that their efforts to collaborate with the society ended in June, 2013. The evidence showed that, on a number of occasions the parents did not respond in a timely manner to emails or telephone messages from the society wherein the society sought to share medical information. When they did respond, their communications with the agency were frequently unproductive and unconstructive.

By their counsel’s admission on the appeal, they had frequently been hostile, uncooperative and resistant towards the society. The email communications sent by the parents to the society were often infused with a tone that was reproachful and fractious.

Their criticisms of the society’s case management of their daughter’s care were often unfairly personalized against individual society workers.

In a number of instances, the efforts of the society, the child’s placement or her treatment personnel to provide stability, services and treatment to the child were undermined by the parents. [ 28 ] The court noted that the parents had often been strongly critical of any professionals involved with the child who did not share the parents’ view or perspective of their daughter’s difficulties. [ 29 ] The court found that the agreement in principle, whereby the society agreed to consult with the parents regarding the child’s medical treatment, was not an element of the February 20, 2013 court order.

Further, the court found that the society had made considerable efforts to work collaboratively with the parents and to confer with them pertaining to the medical treatment that was being provided to their daughter. Despite these efforts, a cooperative working relationship did not exist between the parents and the society subsequent to June, 2013, due to the fact the parents had ceased any efforts to collaborate with the society subsequent to that date.

The court noted that the process of consultation between two parties is a bilateral exercise, and requires the reasonable engagement and cooperation of both parties. From June, 2013 onward, this was largely stymied by the parents. [ 30 ] In its decision on the contempt motions, the court considered the allegations made by the parents in relation to the agency and its workers, and carefully considered the evidence filed by the parents in support of their allegations. In a number of instances, in relation to material facts, the court found that the parents had misstated the evidence.

In these instances, the court determined that the allegations of the parents were unfounded, and either unsupported or contradicted by the evidence. [ 31 ] In

summary, the court held that there had been no breach of the terms of the February 20, 2013 Order by either the society or any of its individual workers. [ 32 ] In relation to the motion by the parents to have the report of the child’s former psychiatrist removed from the court record, the court held that there was no basis in law for the motion to be made at that stage in the litigation. The court viewed the parents’ motion as an attempt, by the parents, to re-litigate aspects of their case on the temporary care and custody motion.

The court held that the time for an objection to be raised relating to evidence filed on a motion was at the time of, or prior to, the motion being argued. Further, the court held that even if the objection had been raised at the time the temporary care and custody motion was heard, it was open to the court to admit the medical report, given the credible and trustworthy nature of the evidence.

On that basis, the psychiatrist`s report would have met the standard established in the statute for evidence on a temporary care and custody motion. [ 33 ] A much more detailed overview of the background of the case and the litigation history is contained in the written decision of the court dated March 16, 2015, granted on the motions. The court expressly refers to that decision and the findings of fact in the written decision, as the backdrop for the claim for costs of these motions. Applicable Legal Principles : [ 34 ] Pursuant to

section 131 of the Courts of Justice Act [2] , the court has discretion to determine the issue of costs in a proceeding. This

section reads as follows: Costs 131.

(1) Subject to the provisions of

an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid . [ 35 ] The provisions of Rule 24 of the Family Law Rules [3] (also referred to as “the Rules”) address the issue of costs.

The discretion of the court to grant costs in a family law or child protection proceeding is to be exercised within the parameters established by the Rules [4] . [ 36 ] While there is a general presumption that a successful party is entitled to costs, the presumption does not apply in a child protection case or to a party that is a government agency. However, the court has discretion to award costs in favour of or against a party that is a government agency.

This would include a child protection agency, such as the applicant society. [ 37 ] The relevant provisions of the Rules which articulate these principles are set out in sub-rules 24 (1), (2) and (3), which read as follows: RULE 24: COSTS SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS 24.

(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY

(2) The presumption does not apply in a child protection case or to a party that is a government agency .

COURT’S DISCRETION — COSTS FOR OR AGAINST GOVERNMENT AGENCY

(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful . [ 38 ] As the presumption in sub-rule 24 (1) does not apply to a child protection proceeding, entitlement to costs in a child protection case must be based on something more than merely the outcome of the case [5] . The jurisprudence establishes a number of legal principles that provide guidance to a court in considering a claim for costs made by or against a party in a proceeding brought under the Child and Family Services Act [6] .

These principles are reviewed below. [ 39 ] If a court finds that costs ought to be awarded against a party in a child protection proceeding, the court should proceed to determine the issue of costs by applying the relevant provisions of the Family Law Rules , taking into account the objectives of an order for costs [7] . [ 40 ] Subrule 24 (11) of the Family Law Rules sets out the factors that the court should consider when fixing the amount of costs. These factors include:

a) the importance, complexity or difficulty of the issues;

b) the reasonableness or unreasonableness of each party’s behaviour in the case;

c) the lawyer’s rates;

d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument and preparation and signature of the order;

e) expenses properly paid or payable; and

f) any other relevant matter. [ 41 ] Subrule 24 (8) addresses the issue of bad faith. The subrule 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.

Bad faith can be established by the intentional failure to comply with an agreement in order to achieve an ulterior motive or an intentional breach of a court order with a view to achieving another purpose [8] . [ 42 ] The standard of “bad faith” referred to in subrule 24 (8) has been interpreted to include intentional or deliberate actions to inflict financial or emotional harm on the other party, to conceal relevant information, or some manner of duplicitous or deceitful behaviour [9] . [ 43 ] Unreasonable conduct stemming from bad judgment should not be equated with bad faith.

However, such behaviour may be taken into account in considering the issue of costs, as one of the factors enumerated in sub-rule 24 (11) [10] . [ 44 ] The Ontario Court of Appeal has confirmed that modern costs rules are designed to foster three fundamental purposes: 1. To partially indemnify successful litigants for the cost of litigation; 2. To encourage settlement; 3.

To discourage and sanction inappropriate behaviour by litigants [11] . [ 45 ] In reviewing the jurisprudence pertaining to a claim for costs against a society or a parent in a child protection proceeding, two broad categories of cases can be identified. Firstly, there are cases where the claim for costs arises following the determination by the court of the substantive issues in the proceeding, including the issue of whether the child is in need of protection, and the dispositional order to be made.

Secondly, there is a further group of cases in the child protection realm where the claim for costs arises from the manner in which the litigant has carried on his or her case [12] . [ 46 ] In relation to the first group of cases, there are a number of policy reasons for the principle that costs should be awarded only in an exceptional case. The jurisprudence has held that child protection agencies are not ordinary litigants. They should not be penalized in attempting to carry out their statutory mandate under the applicable child protection legislation.

It would be generally undesirable for a child protection agency to have to be concerned about the costs implications of a course of action that it otherwise believed to be necessary in order to carry out its child protection duties [13] . A child protection agency has a statutory mandate to protect children. The society should not be dissuaded from carrying out its statutory obligations by costs considerations [14] . [ 47 ] The policy reasons are clear. A society should not be placed in the position of having to weigh the possibility of an adverse costs award against its obligation to protect children.

This would place the agency in the position of having to perform a difficult cost-benefit analysis in order to determine whether the agency can financially afford to protect a child [15] .

[ 48 ] Thus, in connection with the steps taken by a society in carrying out its statutory child protection duties, the case law confirms that costs should only be awarded against the agency in exceptional situations; such as those in which an agency has acted negligently or without regard to its statutory mandate [16] . However, the high threshold of bad faith is not required [17] . [ 49 ] Similarly, courts should be very cautious in considering claims for costs against a parent in a child protection case [18] .

When faced with state intervention in the care and upbringing of their children, they have a right to force the state to prove its case and should not be penalized in costs if they are unsuccessful [19] . Parents are to be given considerable latitude in defending their case, and in requiring the Society to prove its case [20] . In responding to a child protection proceeding commenced by the society, costs should not be awarded against a parent except in unusual or exceptional circumstances.

However, parents will not be insulated from a claim for costs if they act in bad faith, are seriously unreasonable or if they act in a manner that is disproportionate to the issues involved [21] . [ 50 ] There is a contrast between a claim for costs against a society arising from its position on the substantive or protection issues in the proceeding and a claim for costs in relation to procedural matters or the manner in which the society conducts its case [22] . A number of cases have confirmed that a child protection agency may be held accountable for the manner in which it chooses to litigate the case.

One method of achieving accountability is by the use of costs sanctions [23] . [ 51 ] When the issue is whether costs should be awarded against a child protection agency for its litigation conduct, the focus is whether the society has acted unreasonably and by that unreasonableness, has driven up the costs of the case for the other parties [24] . A costs award is a means of ensuring the accountability of the society for the manner in which it presents its case and expedites a resolution. In the absence of an award for costs, there is no accountability [25] .

An order for costs against a society in a child protection proceeding is intended neither as a reward nor as a punishment, but as a means to hold the agency accountable [26] . [ 52 ] While an order for costs against a society pertaining to its position on the substantive issues in a child protection proceeding will only be made in exceptional situations, a society may be held accountable, through a costs award, for procedural missteps that have increased the costs of the litigation to the other parties [27] .

An order for costs in relation to procedural failings by a society cannot be said to deter a child protection agency from diligently protecting children in the future [28] . [ 53 ] In relation to the litigation conduct of a parent in a child protection case, once again, a costs order will be made against a parent only in an exceptional case. As was noted by the Honourable Justice Sherr in the case of Jewish Family and Child Service of Greater Toronto v.

Y.B. [29] , many of the parents involved in child protection proceedings have significant challenges in their lives and may be dealing with difficult emotions arising from the society’s involvement with their family. They may present in an unfocused and disorganized manner. This is often reflective of the very risk concerns that have brought the parent before the court in the first place. It would not be appropriate for the court to apply the same standard it uses in ordering costs in non-child protection cases.

Lowering the exceptionality standard for claims of costs against a parent could have serious adverse and unjust consequences to the child protection process. [ 54 ] However, a parent will not be insulated against a claim for costs in a child protection proceeding if, in conducting his or her case, the parent misleads the court, brings frivolous motions or engages in serious, often unjustifiable behaviour, disregards court orders, exercises bad faith or conducts his or her case in manner that is an abuse of process [30] . [ 55 ] In a child protection proceeding, it is tantamount to an abuse of process for a party to make repetitive, persistent attempts to re- litigate issues that have already been addressed by the court.

If the responding parties are put to considerable expense as a result, these circumstances may give rise to the exceptional grounds that would justify a costs order against that party [31] . Analysis/Findings : [ 56 ] Dealing firstly with the parents’ motion to vary the temporary care and custody Order granted on May 10, 2014, the court notes that the parents’ appeal of the Order was heard, with fresh evidence filed by the parents as well as by the society, a mere month and a half earlier. The appeal was dismissed.

With the admission of the fresh evidence, the parents had the opportunity to argue their case, both on the basis of the facts that were before the court in April, 2014 when the temporary care and custody motion was first argued, as well as on any subsequent developments pertaining to the circumstances of the child or the family since that time. They were unsuccessful. No costs were sought by the society against the parents on the initial temporary care and custody motion argued in April, 2014, nor does it appear that costs were sought on the appeal to the Superior Court of Justice, argued in October, 2014.

This is consistent with the costs principles enunciated in the Family Law Rules and the jurisprudence. The parents were entitled to oppose the order being sought by the society on the temporary care and custody motion and to require the society to prove its case. They were also entitled to exercise their right of appeal, in relation to such decision. [ 57 ] The parents’ motion to change the temporary care and custody order was launched even while the parents’ appeal of that order was pending. The appeal, heard with fresh evidence, was dismissed.

The parents’ variation motion in this court, seeking a change in the temporary care and custody order, was heard the following month, based upon a similar factual backdrop. This court held that there had been no material change in the child’s circumstances, from the circumstances that existed at the time the initial temporary care motion was argued in April, 2014, that would decrease the level of risk to the child, were she to be placed in the parents’ care.

Any changes that had occurred since that time served to heighten the risk to the child, were she to be returned to the care of her parents, even under a supervision order. [ 58 ] The materials filed by the parents on the variation motion were voluminous. The appeal of the temporary care and custody order, such a short time earlier, provided the opportunity to the parents for appellate review of the temporary care decision, with fresh evidence.

The launching of a variation motion, while the appeal was pending, put the society in the position of having to litigate similar issues in two separate courts virtually contemporaneously. Had the parents withdrawn their variation motion after the unfavourable

decision on the appeal, there would be little concern for their exposure to a claim for costs. [ 59 ] The effect of the parents’ decision to proceed with the variation motion so soon after the appeal was heard, was to put the society to the time and expense of re-litigating similar or closely-related issues, based on similar or closely-related factual circumstances, within a short time-span of only weeks.

The parents’ variation motion, argued so shortly on the heels of their unsuccessful appeal, appeared to be reflective of their inability to accept the decision of the court, either on the initial temporary care and custody motion, or on the appeal of that order. [ 60 ] The court is of the view that the parents’ ongoing attempts to re-litigate substantially similar issues on substantially similar facts as those previously addressed in the proceeding, is conduct that puts the society’s claim for costs of this motion in the category of exceptional.

A costs award in favour of the society is appropriate, in relation to this motion. In the case of this motion, costs should be based on a partial indemnity scale. [ 61 ] In relation to the motion brought by the parents, seeking an order removing the psychiatrist’s report from the court record, the court found that this motion was without merit.

While it may have been misguided to proceed with this motion, particularly given the lack of a legal foundation for this claim, the court is of the view that, in unsuccessfully advancing this motion, the parents’ litigation conduct was not of a nature that would trigger an award for costs against them on this motion.

The parents’ conduct on this motion did not rise to the exceptionality standard for costs. [ 62 ] The court now turns to the five contempt motions brought by the parents against five individual staff members of the society, as well as the further contempt motion made by the parents against the agency itself. It is a very serious matter to accuse a society or a particular worker of contempt of an order of the court.

It is even more serious to do so based upon evidence that is flawed or that contains material misrepresentations. [ 63 ] In alleging contempt, the parents asserted that the society had failed to confer with them on matters pertaining to the medical treatment of their daughter. The evidence did not support this contention. Beyond that, the court found that the affidavit evidence filed by the parents was misleading and contained misrepresentations of fact, in a number of instances.

Specifically, in relation to the matters pertaining to the child’s health and medical treatment, on a number of occasions the parents alleged the society had failed to confer, when in fact the society had gone to some lengths to seek input from the parents. [ 64 ] Moreover, in its decision on the motions, the court noted that the agreement in principle that had been reached between the society and the parents was not appropriately part of the court order. In the case of the contempt motions, the parents had brought these motions without first holding a case conference on the issues.

Had they conferenced the issues, their concerns as well as the shortcomings of their position, would have been fully aired. In bringing the motion, the parents chose to proceed with a much more adversarial process than simply conferencing these issues. [ 65 ] Contempt is a remedy of last resort. It is to be used with restraint and in exceptional circumstances. A finding of contempt ought not to be sought where other remedial options have not been attempted or utilized. There was no evidence that the parents first approached the society in a cooperative manner to attempt to resolve their concerns.

They agree that from and after June, 2013 they ceased any efforts to be collaborative with the society on any issues. The parents continued to rebuff the society’s invitations to attend the monthly Plan of Care meetings where their daughter’s health and medical treatment were discussed.

The parents were not responsive to a number of the e-mail communications of the society workers pertaining to their daughter’s health. [ 66 ] The parents’ multiple assertions of contempt against both the agency and a number of its workers generated a full and meticulous response from the society, with a review and response directed to each separate allegation, often supported by documentation from the society’s case work files. The evidence appeared to span a period of well over eighteen months.

It is evident, from a review of the volumes of materials filed by both the parents and the society, that the society’s response to these motions involved considerable time, effort and inconvenience, not only by legal staff, but undoubtedly by the clinical staff as well. [ 67 ] The contempt motions brought by the parents, on flawed evidence, attacked the integrity and professionalism of the five individual society workers, and the society as an agency. These are very grave allegations to make.

Rather than having any merit, this motion appeared to be a continuation of the parents’ pattern of attempting to discredit any of the professionals associated with this case or their daughter’s care who held a view that did not align with their own.

The nature of the parents’ motion, the allegations made by them, as well as the misstatements in their evidence, cause this case to stand out as being exceptional, in relation to the society’s claim for costs of the contempt motions. [ 68 ] In relation to the contempt motions, the court is of the view that full recovery costs to the society could well be justified in this case.

In exercising its discretion, the court has determined that costs ought to be awarded to the society on the high end of the partial recovery spectrum. [ 69 ] On the motion to vary the temporary care and custody motion, the society seeks the sum of $5,775.00 for fee, plus HST of $750.75, and the further sum of $267.83 for disbursements, for a total of $6,793.58. For the motion to remove the medical report of Dr. Boucher from the court record, the court has determined that a costs award should not be granted.

In relation to the contempt motions, the society seeks costs of $6,650.00 for legal fees, plus HST of $864.50 and disbursements of $250.64, for a total of $7,765.14. [ 70 ] The court has no difficulty with the scale or quantum of costs sought by the society on its motions. The society’s Bill of Costs was modest, given the issues and the extent of the materials prepared and filed. The time allocated by society counsel to the various steps that were required to respond to the parents’ motions was reasonable. The disbursements claimed were necessary.

The parents are not alleging any financial inability to pay an award of costs. [ 71 ] The court assesses costs against the parents, in relation to the motion to vary the temporary care and custody order, in the sum of $3,500.00 for fee, $455.00 for HST and $267.83 for disbursements for a total of $4,222.83. [ 72 ] On the motion, brought by the parents for an order removing the psychiatrist’s report from the court record, there shall be no

costs awarded to any party. [73] On the five contempt motions made by the parents against the five individual society workers, as well as the contempt motionagainst the agency, the court assesses costs against the parents in the sum of $5,980.00. There is HST on this sum of $777.40, plus out ofpocket expenses of $250.64, for a total of $7,008.04.

Order as follows: [74] For these reasons, the court makes the following Order: 1) The respondent parents, S.K. and J.K., shall pay to the society its costs of the motion to vary the temporary care and custody order,fixed in the sum of $4,222.83, inclusive of HST and disbursements, payable forthwith. 2) There shall be no award of costs on the motion, made by the parents, for an order removing the psychiatrist’s report from the courtrecord. 3) The respondent parents, S.K. and J.K., shall pay to the society its costs of the five contempt motions against the individual societyworkers, as well as the contempt motion against the society, in the sum of $7,008.04, inclusive of HST and disbursements, payableforthwith. ___________________ Justice C.J.

Jones DATE: February 5, 2016 [16] Children’s Aid Society of Belleville, Hastings and Trenton v. S. M., [1993] O.J. No. 2963 (Ont. Prov. Ct.); Children's Aid Society,Region of Halton v. A.R., [2011] O.J. No. 5627, 2011 ONCJ 681 (Ont C.J.).; Children’s Aid Society of Brant v. V.G. et al (No. 1), [2001] O.J. No. 3202 (Ont. C.J.); Children’s Aid Society of Algoma v. R.M., (2001), 18 R.F.L. (5th) 36, [2001] O.J. No. 2441, (Ont. C.J.). [24] Catholic Children’s Aid Society of Toronto v. S.V., [2000] O.J. No. 5866 (Ont. C.J.; CCAS of Toronto v. S.V., 2000 CarswellOnt.6191 (Ont.

C.J.), leave to appeal denied: 2000 CarswellOnt. 6192 (Ont. S.C.J. [25] Children’s Aid Society of Brant v. D.M.C., supra, Footnote 12. [26] Children’s Aid Society of Algoma v. R.M. (2001), supra, Footnote 16. [28] Children’s Aid Society of Hamilton-Wentworth v. A.F., supra, Footnote 22.