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 one or more of subsections 48(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.

45.— (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.

45.— (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.

Court Information

Court File No.: C471/11

Ontario Court of Justice

Between:

The Children's Aid Society of Brant Applicant

— And —

T.F. and W.B. Respondents

Before: Justice L.P. Thibideau

Hearing re Costs: April 12, 2012

Reasons for Judgment: June 18, 2012

Counsel:

• S. Neill for the Applicant Society
• T.F. In Person
• R. Charko (not present) for the Office of the Children's Lawyer

THIBIDEAU, J.:

Introduction

[1] This action arose because of the apprehension by the Children's Aid Society of Brant on the 7th of December 2011 of the child P.B., born the […] 2002. The action was resolved on the 7th of February 2012 by a consent order whereby a copy of a supervision services agreement was filed as part of the record and the application was withdrawn, with any existing order terminated. At that time mother notified the parties and the Court that she wished to argue the issue of costs.

Procedural History

[2] The matter was first returnable in court on the 12th of December 2011, within the statutory five day period, and a contested s. 51 hearing was held at that time. In the oral reasons for judgment the presiding judge set out the positions of the various parties. The Society was seeking an order that the child continue in Society care with access to the parents in the Society's discretion.

[3] Mother requested that the child be returned to her under one of two plans. Plan "A" was to have the child reside with her at her residence at the V. property, without Mr. V. residing on the property on a temporary basis. The alternative plan was for the child to reside with Mr. & Mrs. M., friends of mother.

[4] The judge made factual findings as follows:

a) Child P.B. was nine years of age.

b) The child had made repeated disclosures to a number of different individuals of excessive discipline, both physical and emotional in nature. The child's specific complaints included the following:

(i) over one day time outs

(ii) finger bending

(iii) arm pulling

(iv) insufficient food from the V. household with mother sneaking him food as a result

(v) improper discipline from Mr. V. including being picked up by his ear.

c) Bullying by the V. children and being treated as less worthy as a child than the V. children in the household.

d) Child was fragile, suffering from ODD and ADHD with aggressive tendencies.

e) Mother was less able to safeguard the child than might normally be the case because of a trauma brain injury lessening her protective abilities. The disability symptoms from the 2005 motor vehicle accident included some comprehension issues, memory loss, and lessening of ability to explain her position and thoughts. This appears to be the reason why Mr. V. has a power of attorney for mother with respect to her financial affairs.

f) The child has real fear of returning to the V. residence.

g) There was some lack of required care, specifically, lack of attention to a diagnosed need for eyeglasses.

Complaints by the child P.B. of a similar but less full nature were made to his two older sisters residing elsewhere, and some members of the biological father's family. The result for the child was expressed fear, nightmares, inability to sleep, and, once in care, requesting to remain in foster care. Mother was interviewed denying all allegations as false and concocted by the child.

[5] The end result was the judge came to the conclusion that the Society had met the onus under s. 51(3) of the Act, satisfactorily demonstrating the requisite reasonable grounds to believe there was a risk the child was likely to suffer harm, that the child could not adequately be protected by an order returning the child to parental care with or without a supervision order. A temporary order placing the child in the care of the Children's Aid Society of Brant with access to the parents in the discretion of the Society was made.

[6] A subsequent temporary order was made on the 29th of December 2011, on a consent basis, placing the child with mother and maternal grandmother, residing in maternal grandmother's home, subject to supervision of the Society, a result negotiated by the parties, and not reflecting any of the original positions that were before the Court on the first appearance date when the order was made. The terms of supervision focussed on a gradual return of mother and child to the V. residence with the process focussing upon the fears and needs of the child.

[7] The matter was back in court on the 27th of January 2012 for a simple adjournment with respect to mother's motion for summary judgment. The return date for that motion, the 7th of February 2012, resulted in the withdrawal of the action and the filing of the copy of the supervision services agreement, the terms of which were similar to the order of 29 December 2011.

The Issue

[8] Mother seeks costs of this action against the Society. To that end mother has filed a bill of costs of her former lawyer, case law and a transcript of questioning of the primary Society worker, A. L. which took place on the 23rd of January 2012. The costs claimed are for mother's lawyer's costs from the 18th of December 2011 to 7 February '12, totalling $56,694.70. Mother represented herself at the costs hearing.

Relevant Facts

[9] From the pleadings it is clear that from the outset there was a divide between the primary respondent, Mother, and the applicant Society with respect to what were the facts of this case leading to Society involvement, apprehension and court application. Distilled to the essence the facts revolved around the multiple disclosures made by the child over a period of time concerning his treatment by individuals in the V. home where he was residing with his mother, Mr. and Mrs. V. and their children. The contest on the facts as they were at time of apprehension and first hearing was resolved by the order made on the 12th of December 2011 wherein were made certain findings of fact with a resulting disposition. Those findings were in accord with the allegations made by the Society with respect to the care of the child and the situation of the child in the V. home with mother present. The order justified the apprehension of the child by the Society personnel and continued the residence of the child in Society care against the mother's wishes.

Post Apprehension Society Conduct

[10] Once having assessed the issues and needs the Society was required to make a safety plan for the care of the child. In the very beginning that plan involved the child remaining in care. However the Society asserts, and it is not denied, that one day after apprehension Society personnel met with mother and her lawyer (not the lawyer whose bill is the subject of the costs issue) to discuss return of the child to a protective environment with mother in a parental role. This was not immediately followed through. However in the back and forth an arrangement was agreed whereby mother and child would reside with the maternal grandmother with no contact with Mr. V., the primary source of the child's concern. This solution was premised on the fact that there was at least a subjective fear in the child with respect to various members of the V. family, particularly Mr. V. The Society focussed on feedback from the child to determine how quickly reengagement with the V. family could take place. The result was the 29th of December 2011 consent order and the 7 February 2012 supervision services agreement and termination of the court action.

[11] From apprehension to termination of case was exactly two months.

[12] During this period of time the Society alleges an intensive effort to reunite child with mother, mother alleges bad faith and an unnecessary separation of mother and child. Secondarily mother alleges that the Society did not reassess the facts and circumstances and re-evaluate its position in a timely manner to the prejudice of mother and child.

The Society Facts

[13] The Society relies upon the various disclosures and allegations of the child as credible and trustworthy. The Society workers formed the opinion that similar or identical allegations made at different times to different individuals connected the dots. The Society acknowledges that these complaints did not come from any members of the V. family or from mother. The Society understands that some of the complaints were relayed through family members of the biological father, possibly making them suspect complaints. However these allegations were similar to allegations reported by the child to the two older siblings and direct conversations between the child and Society workers. The Society also argues that the attitude and the statements of the child once in foster care were confirmatory of the pre-existing situation.

[14] With respect to a proper response the Society takes the following position. The day after apprehension mother was given multiple options to be reunited with her child. These included residing at a women's shelter, doing a proper assessment of the maternal grandmother's residence as a possible placement for mother and child as per mother's request. Within minutes of the conclusion of the meeting mother contacted a worker indicating she no longer wished the maternal grandmother to be assessed as a potential placement.

[15] On the same day mother acknowledged to a Society worker that the child was visibly afraid of both K.V. and H.V. in the V. residence.

[16] The maternal grandmother resided within the jurisdiction of a different Children's Aid Society. On the 29th of December 2011 this Society contacted that Society to have it accept and supervise the file for placement of mother and child with maternal grandmother in her residence. By either January 16th or January 17th 2012 the other Society had accepted supervision of the file and by January 17th the mother had confirmed a message from a worker from that Society in order to engage with mother. In fact mother had already moved to the maternal grandmother's home and the child was entered into a school within the catchment area of maternal grandmother's home on the 13th of January 2012.

[17] Mid-January appears to be the turning point in the relationship between mother and workers. By this time the discourse between mother and Society workers was this. The workers were telling mother they were continuing to investigate the allegations made to third parties and the subsequent disclosures made by the child to Society workers. Mother requested the Society take into account the child's diagnosed ODD and ADHD as possible reasons for disclosure, making up allegations to manipulate the situation. The Society responded that those diagnoses were known and were taken into account. Consensus developed. At the least there were genuine subjective fears and concerns internalized by the child in relation to living at the V. residence.

[18] By January 17th 2012 as well, the Society was attempting to engage third party service providers, particularly mental health professionals, to assist the child by way of assessment and counselling. Mother was cooperative with this process.

[19] By January 19th the Society attempted to contact Mr. and Mrs. V. in order to continue the investigation and to assess the physical quality of the apartment in the V. residence that would be occupied by mother and child, should they return there.

[20] A working relationship developed between mother and the primary Society worker. The worker filed affidavits setting out that mother was amenable to suggestions from the Society, was engaged with both workers from each of the two Societies involved, was working towards a solution.

[21] By a motion dated the 2nd of February 2012 returnable the 7th of February 2012 the Society sought a continuation of the arrangement whereby mother and maternal grandmother, residing in maternal grandmother's home, would have the care of the child under supervision. This was based on facts and circumstances subsequent to the consent order of December 29 2011 with a similar disposition. Those facts and circumstances included the following:

a) Upon placement of child with mother and maternal grandmother there was a marked positive change in the manner with which mother dealt with Society workers.

b) During the month of January 2012 the child had the required eye appointment and received his new glasses.

c) While mother missed a counselling appointment at Woodview Children's Centre there was a valid reason for the non-attendance.

d) The other Society's worker was involved with the family and was not meeting resistance to meetings.

e) Unauthorized contact with the V. family was not taking place. Slow introduction to some, less problematic members of the V. family, was taking place under Society sanction.

f) Usual authorizations for release of information were signed as requested.

g) All adults involved, including Mr. And Mrs. V., were voicing agreement to work together to permit the child to overcome his emotions and fears. The ultimate goal, on a consensual basis, was complete reintegration of mother and child with the members of the V. family.

h) The child was not apparently being given information about court matters.

By January 26 2012 interviews with Mr. And Mrs. V. had been completed, examination of the physical circumstances of the home had been completed, and by January 31st discussion of a plan to transition the child and mother back into the V. property was ongoing. The test for transition would be based on the child's emotional reactions and the plan would be such as to not overwhelm him. All agreed that Mr. V. would be the last person to be transitioned back into the life of the child.

[22] Perhaps most importantly, on January 31st 2012 mother was voicing understanding and concern with respect to the child's expressed fears and was cooperative with means to problem solve in order to achieve the reintegration goal. The Society workers were on this path despite concern and objection from the biological father about the reintegration plan.

[23] Contact with the youngest V. child, the least problematic contact, took place on January 31st 2012 in neutral territory. This involved necessary contact with Mrs. V., both contacts went well on that day. Conversation ensued about further contact with other members of the family including Mr. V.

[24] The primary worker from this Society set out in her affidavit information received directly from a conversation on the phone with Mr. V. that mother was concerned that the transition was moving too quickly and that she might be overwhelmed in the process. This occurred on February 1st 2012 and at that time talk of a voluntary service agreement took place.

[25] The Society filed with the court a plan of care dated 16 January 2012. That plan of care focussed on mother and child residing at maternal grandmothers, with support such as assessment and counselling for the child, but did not focus on reintegration with the V. family. In fact there was a directive for no communication with members of the V. family, without mention of authorized by Society contact. However, it is clear that what was happening on the ground was not in accord with the narrow focus of the plan of care, but was broadened to reintegration.

[26] Mother's lawyer questioned orally the primary Society worker, A.L. on the 23rd of January 2012. Mother relies on that questioning to support her case. The relevant substantial evidence arising from the questioning is as follows.

[27] The worker confirmed that this investigation commenced on the 15th of September 2011, and that as of the date of questioning, was a continuing work in progress. The collateral facts not directly related to this particular investigation, but related to previous history of mother was considered as part of the combination of facts and events leading to the determination to apprehend.

[28] Mother had been involved in a previous court proceeding in another jurisdiction with respect to the care of her children and there was a CFSA order for 24/7 supervision of her while in the presence of her children for the period of one year, after which the order was terminated. This child was one of the children involved at that time.

[29] The precipitating event for the commencement of the investigation was a referral from the Children's Aid Society of Algoma concerning mother's parenting and protection of the children with respect to collateral relatives, not related to the V. family. Two female children were in this jurisdiction and a request for interviews had been forwarded to assist in that investigation.

[30] The Society worker was aware that Mr. And Mrs. V. had been involved in extremely contentious proceedings involving a neighbouring Children's Aid Society where a supervision order had been made with respect to the V. children residing with their parents. There had also been costs awarded against the Society exceeding $250,000. However, one of the issues arising out of that investigation was the allegation that Mr. And Mrs. V treated non-biological children in a negative way compared to their biological children. One of the issues that arose in this investigation was scapegoating of this child with respect to conduct in the home among various children. However it was also clear that the very children involved in the neighbouring jurisdiction investigation were also the subject of a successful adoption application by Mr. And Mrs. V. resulting in the family unit of Mr. And Mrs. V. in September of 2011 being comprised of themselves, five biological children and two adopted children.

[31] During cross-examination much was attempted to be made by the lawyer for mother of the fact that in order for the adoption order to be made the Court must have found that the care of the children by Mr. And Mrs. V. and the adoption of the children by Mr. And Mrs. V., was in the best interests of the children, that being a statutory requirement. However that finding is a snapshot in time and is not something that necessarily carries on. The conduct of a parent towards a child on an ongoing basis with multiple snapshots in time, adopted or not, determines whether or not involvement continues to be in the best interests of a child. It appears that the fact of adoption was not taken into account one way or the other by the investigating worker, based upon her answers during the questioning.

[32] Despite a reasonably lengthy investigation the worker made only one visit to the V. home before apprehension, in August of 2011. At that time she observed no obvious concerns with respect to the care or well being of the child in the home. It is also clear that despite disclosure from the child, disclosure allegations from members of the father's family, there was no direct questioning of any member of the V. family to obtain further disclosure one way or the other. The worker did meet with Mr. V. on December 1st 2011 but there was apparently no direct conversation about the allegations, certainly no confirming statements from him.

[33] Post apprehension the worker did meet again with Mr. V. on January 18th 2012.

[34] The worker was able to discover that there were two individuals who had spent time in the V. home. The maternal grandmother had gone there from time to time and when told of the allegations she was dismissive of them. She had no evidence to support the allegations.

[35] A paternal aunt visited mother and child regularly in the V. home over a period of time. She was aware of incidents of physical and emotional abuse including the following:

a) Both mother and Mr. V. pinched his ears and grabbed his arms, resulting in it "really hurting", according to the child.

b) Child was observed as overmedicated and drooling, sleeping a lot.

c) Mother told her of her own concern about her inability to parent this child because of his behaviour, preferring to look after the two female siblings rather than him, and wanting to exchange him for them.

d) Child on outings with aunt observed to be scarfing food and being overly hungry, complaining about no ability to eat any food outside of set meal times in the V. home.

[36] The worker corrected any impression or statement she may have made in her affidavit material that indicated members of father's collateral family had been present at the V. property with the exception of one aunt.

[37] The worker was aware that the child had made allegations not dissimilar to these allegations against the paternal grandparents including verbalizing fear of them, later recanting. The worker acknowledged that despite a variety of allegations against the members of the father's extended father no investigation was commenced with respect to them. However it is also clear that those persons did not have a caregiving role for the child who was in the care of mother in the V. home, with limited contact with members of father's extended family, no exclusive contact being demonstrated. The intimation that the worker and the Society somehow was focussed on mother and her circumstance and was ignoring father and his extended family circumstances is, in context, not validated by the worker's evidence. Mother was very much the primary caregiver for the child.

[38] The worker acknowledged that as of January 4th 2012 the foster parents were assessing the child as having a vivid imagination, telling elaborate stories with imagination and reality being blurred in his mind. However he was also noted as not being mean or malicious. The example was given of him verbalizing that someone in the foster home had tried to strangle him, whereas in fact, he later agreed that someone had tried to restrain him, apparently from improper behaviour.

[39] The Society had in its file the detailed assessment of this child from the Chedoke Child and Family Centre dated 19 February 2008 at which time ODD and ADHD had been diagnosed. Collateral with the diagnosis was the assessment that he was prone to lying. However the primary worker did not refer to this document as part of her investigation.

[40] The worker confirmed that part of the risk assessment involved mother's mental health, having been diagnosed previously with manic depression and bi-polar disorder, and having a history of intervention with respect to her care of children.

[41] On the day of apprehension there was a meeting at the child's school involving the witness worker, a fellow worker, the child's teacher and the child. Specific disclosures at that time were that he was treated more harshly than other children in the home (the scapegoating issue) and part of discipline involved time outs that had in the past extended from one to three days. The child identified three particular individuals in the V. home that he considered abusive of him, Mr. V., Mrs. V. and their oldest child. The child visibly demonstrated fear of the situation in the V. home by words and body language.

[42] The worker and her supervisor at the Society did not consider a voluntary care agreement before apprehension because it was not deemed an option. The difficulty was that the allegations and the resultant fear affect on the child were of a nature that they could not be protected against by way of the written agreement permitting the child to remain in the V. home. This fear, later expressed to his mother on access visits, demonstrated by hiding under tables, could not be effectively dealt with while encountering members of the V. family without further intervention.

Mother's Facts

[43] The Society personnel have filed a variety of updating documents in January and February 2012. Mother has filed no affidavits during this time period, as a result her position on the facts set out in the various Society personnel documents is unknown for the time period after the initial 12 December, 2011 order. Mother relies upon documentation in the Society file related to previous assessment and the oral questioning of the primary worker subsequent to apprehension to support her position for costs, along with her pre-12 December 2011 filings.

The Law – A: Rule 12 Argument

[44] Mother's first argument is that Rule 12(3) of the Family Law Rules takes precedence over Rule 24(2) which the Society seeks to use as a shelter against a costs award.

[45] Rule 12(3) states:

A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the Court orders or the parties agree otherwise.

[46] Mother's argument does not take into account that Rule 12(4) states:

Despite subrule (3), if the party is a government agency, costs are in the Court's discretion.

[47] Rule 24(1) states:

There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

[48] Rule 24(2) states:

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

[49] Rule 24(3) states:

The Court has a discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful.

Mother's position that Rule 12(3) mandates the presumption that a withdrawing party is liable to costs does not take into account Rule 12(4) which has a meaning, for actions where a withdrawal is present, that is parallel to and has the same result and effect on costs as Rule 24(3). The difference between the subsections of Rule 12 referred to and the subsections of Rule 24 referred to is that the express statement at Rule 24(2) that the presumption in favour of a successful party in Rule 24(1) is not present in a child protection hearing is not set out in Rule 12. However the general effect in both rules is the same – despite a presumption for costs to be awarded to a successful party in Rule 24 and despite a presumption of costs against a withdrawing party in Rule 12, where a government agency is involved the Court determines the matter on a level playing field without any presumption applying as to whether or not costs will be awarded.

[50] There are other difficulties with mother's position. From a public policy point of view there is no reason why Rule 12 should have precedence over Rule 24 with respect to determining costs. Otherwise an anomaly results. Where a Society reassesses its position and determines, whether in consultation with responding parties or not, that the action should not go forward and files withdrawal documents accordingly there is exposure to costs under Rule 12 according to mother's argument. On the other hand where the Society performs the assessment but chooses not to withdraw, but to continue the action, to seek dismissal or otherwise, the Society is protected by Rule 24(2) which specifically negates the presumption for costs to be awarded. That interpretation creates an incentive for a Society to continue litigation when the Society has determined continuation is not required or appropriate. This result benefits no one.

[51] Rule 12(4) and Rule 24(3), do not have identical wording. However in context they achieve the same result interpreting the words used in those sections by their ordinary meaning. Both terminate a presumption with respect to costs and substitutes unfettered Court discretion where mere withdrawal in Rule 12 and success in Rule 24 are not overriding considerations with respect to whether costs are awarded or not, merely considerations along with all other appropriate considerations in each individual case. To accept any other interpretation of Rule 12 is to render Rule 12(4) meaningless when it is clearly intended that government agencies have a special status when costs are being considered.

[52] Mother relies in her argument on Children's Aid Society of Hamilton v. S.R. to support its position that the withdrawal is a procedural step and not a substantive step and therefore Rule 24 does not apply to a situation where the action has been terminated by withdrawal. That case was decided on the issue of whether or not costs should be awarded where an offer of settlement had been made successfully with the result that the provisions of Rule 18 applied. On that issue it was decided that even though mother was successful on the substantive issue and her position was at least as beneficial to her as the ultimate decision of the Court costs were not awarded. The decision then examined the conduct of the Society in the prosecution of the case, the procedural issues, and found that the Society was wanting in its prosecution of the case and as a result awarded costs. This was in keeping with the now judicially accepted divide between costs with respect to the merits of the action and costs with respect to the conduct of the action, Rule 24 protecting a Society from costs arising because of a decision against the Society position. Costs on procedural issues are looked at differently in order to encourage Societies not to be oppressive, delaying or otherwise unfair to the respondent parties in child welfare litigation. In that case the stated procedural failing was the Society's failure to comply with orders of the Court with respect to timelines resulting in extra costs to mother before and during trial.

[53] Quite fairly mother's submissions to the Court include a reference to the Children's Aid Society of the Niagara Region v. L.J.R wherein J. Scime expressed the view that in child protection cases Subrule 12(3) must not be read in isolation but in conjunction with Subrule 24(1) and Subrule 24(2). In that case it was a Respondent Father who was withdrawing his answer that raised the issue of costs under Subrule 12(3). Even so the decision was that Subrule 12(3) did not apply in a child protection proceeding case. The rationale in this case fortifies the thinking that the anomalous outcome requested by mother should not occur.

[54] The result is that the fact that the Society requested that their application be withdrawn rather than seeking dismissal is not a reason to deviate from the regime for costs with respect to a child protection proceeding that is set out in Rule 24.

[55] On the facts of this case should the Court, in its discretion, award costs against the Society taking into account Subrule 24(3) or Subrule 12(4), a discretion which is not subject to any statutory presumption. The provisions of Rule 12 can apply because there was indeed a withdrawal. The provisions of Rule 24 apply because there was a determination, and the usual considerations with respect to costs in a child protection proceeding apply. In either case the standard presumption favouring the successful party does not apply.

The Law – B: General Costs Principles – Rule 24

[56] The accepted overriding principle with respect to costs in child protection proceedings is that the Court must accept that the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended by statutory obligation requires a Children's Aid Society to initiate and pursue investigations and proceedings with respect to a child at risk of harm if there is reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations.

Children's Aid Society of Ottawa v. S. and P.

Children's Aid Society of Hamilton v. S.R.

This policy consideration is a raison d'etre for the negation of the presumption for payments of costs in Rules 12 and 24 where a government agency is involved, or, in the case of Rule 24, a child protection case is before the Court. No party to this case has argued that the Children's Aid Society of Brant is not a government agency within the meaning of those rules. J. Quinn in Children's Aid Society of the Niagara Region v. C.B. found that a Children's Aid Society is "a government agency" within the meaning of Rule 24.

[57] In the Children's Aid Society of Algoma v. M.(R.) J. Kukurin dealt with the issue of costs against that Society at a time when the Rules of the Ontario Court (Provincial Division) in Family Matters, R.R.O. 1990, Reg. 199, rules 30 to 35 inclusive were much different than the current rules, containing no presumptions and containing no negation of presumptions in family law litigation and containing no negation of presumption with respect to child protection proceedings. The review of case law preceding that decision under that regime by J. Kukurin demonstrated that the courts had and continue to have a special view of children's aid societies as litigants. In general they are described as not ordinary litigants, and should not be penalized in attempting to carry out their statutory mandate, the protection of children. Winning and losing are not concepts that are particularly appropriate to child protection proceedings. Cost considerations should not deter Societies from carrying out their statutory mandate, the protection of children at risk of harm.

Catholic Children's Aid Society of Ontario v. M.

Y. (M.) v. Y. (M.), (1981), 3 F.L.R.R. 180 (Ont. Prov. Ct.)

[58] However that decision also recognized the obvious fact that from time to time a Society may not conduct its investigation and case in a way that is fair and reasonable, thereby attracting costs. A variety of cases have used a variety of negative terms to describe the conduct of the Society's case that attract costs – indefensible, lacking in good faith, abusive of its power, behaving in some indefensible way.

B.(D.) v. Children's Aid Society of Durham (Region), (1987) 20 C.P.C. (2nd) 61 (Ont. Fam. Ct.)

Children's Aid Society of Hamilton-Wentworth (Regional Municipality) v. M.(P.)

[59] Perhaps best summed up by J. Dunn in the easily understood and all encompassing phrase "Would the Society be perceived by ordinary persons as having acted fairly."

B.(D.) v. Children's Aid Society of Durham (Region)

[60] At the time of the decision of J. Kukurin there was a transition between the "old law" and the more current law. Two sets of principles, not mutually exclusive, were propounded as proper criteria for determining the issue of costs against a Society. Those of J. Dunn in B.(D.) v. Children's Aid Society of Durham (Region), as follows: The Society has an obligation,

1. To conduct a thorough investigation before acting.

2. To consider alternative measures for protection of children before proceeding to court.

3. To treat all clients fairly and equally and with as much dignity as possible.

4. To continue its investigation up until the time of a final court determination in a vigorous, professional manner.

5. To reassess its position as more information becomes available.

6. To ensure that its workers are skilled in the performance of their roles.

[61] The "new" considerations were exemplified by the tests laid out in Children's Aid Society of Waterloo (Regional Municipality) v. C.(Z.B.) in which J. Katarynych stated:

1. A society has no immunity from a costs award.

2. As a general rule, child protection agencies should not be penalized in attempting to carry out their statutory mandate under the Province's child protection legislation.

3. Protection agencies are not ordinary litigants. The society has a mandate to protect children, and children have a right to be protected.

4. As part of its duty to act with fairness and reasonableness in carrying out its statutory responsibilities a society must exercise good faith, due diligence and reason in its investigations. A society is not free to assume that "if there is smoke, there must be fire".

5. Nowhere is a society authorized, in the name of the powers entrusted to it by the legislature, to ignore or trample on a parent's rights.

6. The essential test for the appropriateness of an award of costs against the society is whether the society should be perceived by ordinary persons as having acted fairly.

7. An ordinary person perceives a society as having acted fairly in the following circumstances:

(a) before launching a court proceeding, the society has undertaken a thorough investigation on allegations or evidence of a child's need for protection;

(b) as part of its thoroughness, the society has recognized and acted on its duty to look beyond an allegation for corroboration or independent evidence of it;

(c) as part of its thoroughness, the society, mindful of its duty under subsection 2(2) of the Act to ensure that children and parents have an opportunity, where appropriate, to be heard and represented when decisions affecting their interests are made, has interviewed the person who is alleged to have created the need for protective intervention, invited that person to have counsel involved, permitted that person an opportunity to reply to the allegation, and then weighted the competing versions for their likely reliability and credibility – before the society proceeds to 'validate' the allegation and draw the unequivocal conclusion that the need for protection exists;

(d) the society has demonstrated its openness to any version of the events that is offered, including the version offered by the person against whom the allegation is made;

(e) as part of its thoroughness, the society, has been alert to rancour that might reasonably be animating the allegations;

(f) the society has reassessed its position as more information becomes available, even if a court hearing is in session at the time; in short, it has continued its investigation up to the time of a final court determination of the alleged need for protection, and done so in a vigorous professional manner; and

(g) the society has investigated all pieces of relevant information, not just those pieces for which there is uncontroverted proof.

8. The society's good faith will not relieve it of an award of costs against it. It will, however, preclude an award of costs other than in accordance with the normal tariff.

[62] Mala fides, or bad faith, is not required for a costs award against a Society.

[63] It is now trite law that costs are not the norm in child protection proceedings. Generally there must be some substandard conduct or lack of conduct before the action commenced or during the currency of the action by the Society personnel that requires a cost award to attempt to repair defective investigatory conduct or case prosecution.

Children's Aid Society of Niagara v. B.(C.)

[64] The strict interpretation of "exceptional circumstances" set out in M. G. v. CCAS of Metropolitan Toronto [1992] O.J. No. 2977 has been eased to include other unsatisfactory conduct. Summarized the conduct must be unfair, indefensible, or more than a mere error in judgment.

[65] In addition in child welfare proceedings it does not make sense, nor is it appropriate, to compel a respondent to litigate costs as the matter proceeds through the court system as required by Rule 24(10). Given the narrow nature of conduct attracting a cost award, given that that conduct is examined by the Court up until final determination, and given that an overview of the Society's conduct of the case is usually required, it is not appropriate and it is not necessary to have litigants comply with Rule 24(10). In short the Court should exercise its discretion to ignore the requirements of that rule in these kinds of cases. It is more simple and more conducive to a fair result that the scrutiny of out of court conduct be left to the end in most child welfare cases. This is especially so here where the number of court appearances were few and the action was terminated after two months.

[66] In utilizing the check lists to assist the Court in determining the cost issue general criteria are relevant. Proof of bad faith will attract costs. Absent bad faith the Respondent must demonstrate conduct by the Society showing a lack of fairness, a presence of exceptional negative circumstances, summarized in general terms as Society conduct seen as patently unfair by an informed and reasonable person in the community. Mere errors in judgment are not sufficient in themselves. There is an ongoing obligation to reassess as facts become known and then act accordingly. The Society cannot merely remain passive but must reasonably seek out additional facts with ongoing investigation.

Children's Aid Society of Niagara v. B.(C.)

Children's Aid Society of Sudbury and Manitoulin v. H.(J.), 2005 ONCJ 488

Resolution

[67] Scrutiny of the conduct of the Society in its investigation and in the prosecution of its case, keeping in mind the preceding principles and tests, reveals the following.

[68] The Society investigation before apprehension and commencement of the court action took place over a three month period. It began by referral from another Society with respect to two older siblings of the child in question which had been in the care of mother in that jurisdiction. The Society had documentary information from that other Society outlining the involvement of mother with at least that Society, if not another third Society, and the concerns that had arisen historically with respect to mother's parenting of children in her care. The Society was aware that mother had mental health issues which affected her parenting ability as described.

[69] The Society was aware that mother was residing with the V. family. The Society was clearly aware that the V. family had also historically been involved with the Society and another Society from a neighbouring jurisdiction. The Notice of Claim and the Statement of Claim, in draft form, included in the material of mother in her submission on costs makes it abundantly clear that damages claimed in excess of $5,000,000 relate to involvement with the two Societies named as defendants for a period of time commencing in 2000, on a moving forward to the circumstances of this action with respect to mother and child. This Society was obviously aware that in a proceeding between the members of the V. family and the neighbouring Society very substantial costs had been awarded by a judge of this court. That history leads to one of three logical conclusions. The history had no effect on the conduct of the Society and its workers in the investigation of this matter. The history predisposed the Society to casting mother and child living with the V. family in a negative light and therefore negatively affected their assessment and the conduct of the investigation and action. The history put the Society on guard and caused it to cross its T's and dot its I's in the conduct of the investigation and action. In effect mother asserts the second of the two alternatives. The Society denies this and asserts that the investigation was carried out in accordance with normal practice based upon information received.

[70] It is clear that the three month period demonstrates the Society was not quick to engage in court action. Information was gathered from a variety of sources, including mother and child directly. Information, particularly from the child conveyed to a number of third parties, including Society workers, was consistent over a period of time, and demonstrated, if true, that some form of intervention was required. The risk of harm was both physical and emotional.

[71] The investigation did not involve any meaningful contact with the V. family, in particular Mr. V. This is relied upon heavily by mother to demonstrate that the Society investigation was fundamentally lacking. In the circumstances of this case that is not so.

[72] It is not a fundamental principle of investigative technique that the alleged perpetrator be interviewed and have his or her version of facts considered in the overall assessment of what is the harm and what should be done about that harm. For instance, in criminal investigations it is not uncommon to proceed without a questioning or interrogation of the alleged perpetrator. It is not unusual to proceed with charges even though the alleged perpetrator denies any involvement in the acts giving rise to the criminal offence. The easiest example, closer in analogy to this matter than others, is a charge related to sexual assault or domestic violence. It is common that charges will be laid without interviewing the alleged perpetrator, and charges will be laid even when the interview takes place and there are complete denials, absent alibi or some very unusual factual circumstance. In this case the child and mother were openly living with members of the V. family and the living circumstances were entirely consistent with the allegations being made. An adequate investigation does not require the Society to nicely balance or weigh competing versions of alleged harmful conduct. Their obligation is to act where there is credible evidence of risk of immediate harm that cannot be protected against by intervention less than apprehension.

[73] In this context any interview with Mr. V. or other members of the family, would have resulted in a version of events that was either consistent with the allegations being made by the child or not consistent with such allegations. In either case it would be reasonable for the Society to continue forward as it did with the investigation. The alternative would be to ignore or discount totally the allegations being made. This was not possible because of the number of consistent allegations, over a period of time, voiced to different persons, all with significant detail so as to have an air of credibility about them.

[74] It is true that the Society somehow missed the assessment that was done in 2008 which diagnosed certain illnesses for the child with a notation that the child was prone to lying. This assessment was three years old for a child who was only nine years old at the time of the investigation. Perhaps a better way to look at it would be this. Given the facts and circumstances as known to the Society from September to December 2011 would the Society risk being labelled derelict in its duty to the child if it had not proceeded with the investigation as it did. This could be so.

[75] The Society continued to investigate for that three month period. Part of that investigation was dialogue with mother over what should be done. Discussions took place and offers of assistance involving moving mother to a shelter, to grandmother's residence, and better engagement with Society personnel was offered. Mother, perceived as handicapped by her diagnosed conditions, did not accept any of these offers.

[76] The triggering event was the interview of the child on the day of apprehension at his school with his teacher present. All of the information received from third parties, albeit some of them allied against mother and members of the V. family, was confirmed. At this point the Society had a choice. The child could continue to reside with mother in the V. home, with mother not accepting the allegations or any of the alternatives available to her to protect the child, or the child could be apprehended. The Society chose apprehension to avoid the unacceptable risk of continued harm.

[77] The Society made mother an intricate part of the investigation. She was interviewed at various times, was given alternatives to residence with the V. family and she herself was not able to come up with a different plan to keep the child united with mother outside of the V. home. Mother's position was a complete denial of any of the events or circumstances recounted by the child. The Society appears to have weighed the two versions, siding with the child because of the circumstances of his disclosures. This included his evident emotional upset and his description of what he did to avoid contact with the persons involved in the V. household, including hiding, secretly being given food by his mother, creating an aura of reliability and believability with respect to his version.

[78] The Society was aware that some of the third parties repeating the allegations of the child were adverse in interest to mother and members of the V. family. This was specifically considered by the Society in its assessment of the merits of the allegations. Generally the reports from members of the father's family were no more than what was being said by the child to others including Society workers. The exception is the paternal aunt with her detailed description of her observations of the child as over-medicated and deprived of food. That particular paternal aunt, allowed entry on a regular basis into the V. home, was not demonstrated by the evidence before this court to be particularly in one camp or the other. Her evidence from direct observation was confirmatory of some of the allegations of the child and contradicted none of them.

[79] All of these circumstances caused a Court on a contested temporary care and custody hearing to find that the child's circumstances were such that he should remain in care. Some of the facts supporting mother's case for costs apparently were not known to the Court at that time. For instance, 2008 assessment of the child. Barring fraud, deceit, deliberate suppression of evidence or other blatantly improper conduct on the part of the Society personnel the Society is entitled to rely upon that decision to demonstrate that the apprehension was justified in the circumstances known at that time. That being so, no subsequent evidence being elicited that demonstrated ill will, negligence, oppressive conduct, or unfair treatment of mother or child without the requisite respect, there is no successful claim for costs for the period up to and including that first court date. This is so even though there was some evidence of ineptness on the part of Society workers during the course of the investigation. For instance, it took some two months to find out the child's school location. However, it is clear on the whole that the Society investigation up to time of apprehension was neither biased nor unfair, because no post-order evidence of improper conduct of the Society for this time period has emerged.

[80] A Society is required to reassess its position from time to time as more information becomes available. The Society did so. The short period of time between commencement of action and termination of action by withdrawal itself is indicative of engagement in the reassessment process by the Society.

[81] The Society continued to engage with mother. The Society recommended a form of kin-mother placement, originally rejected by mother, then accepted by mother, which was actually implemented. This plan was made part of a court order 17 days after the initial order placing the child in Society care. Within six weeks the Society had negotiated a voluntary Supervision Services Agreement and terminated the action. In this short period of time the Society developed, with mother, a plan to reunite the child with members of the V. family on a voluntary basis. The Society material discloses, not contradicted by mother's material, that even Mr. V. had voiced mother's concern to the Society that the whole reintegration process was moving too quickly for the child and that she, as the mother, might be overwhelmed in the process of having to deal with his conduct.

[82] While there is much comment in mother's material about the attitude of Society workers and the lack of interaction with Mr. V., the fact is that mother was the custodial care person for the child. Mr. V. and his family were merely providing them with food and shelter. Mr. V. did not stand in loco parentis to this child. It may be that greater involvement by Society workers during the course of the investigation with members of the V. family would have added to the quality of the investigation. The legal relationships did not require it and a sufficient investigation did not require it.

[83] There is nothing in the material that indicates the Society acted towards mother in any inappropriate way. There is no evidence of undue duress or pressure, no evidence of "do it our way or we will apprehend", no evidence of disrespect or discourtesy. In fact, the Society's approach to mother seems to have taken into account her own personal disabilities in a process in which she was not ignored. The Society offered her several options, facilitated one which was acted upon, and began facilitation of the integration into the V. household in a manner that no one objected to as delaying or half-spirited. The two changes in plan by the Society, (placement with mother and paternal grandmother, gradual reintegration into V. household) were founded upon new information and a mother more willing to work with successive plans that addressed the child's needs. The success of the child meeting with Mrs. V. and her youngest child, in neutral territory, was recognized as positive by the Society and all others concerned, and resulted in the third and final plan being implemented by gradation.

[84] The overriding consideration, the further refinement, set out by Rogers J. in Children and Family Services for York Region v. P.E., [2003] O.J. No. 4884, para. 5, is stated as follows:

This Court adopts this reasoning (the various considerations and the step process in determining whether or not costs should be payable by a Society in an action) and as a further refinement that is particularly relevant to the case at bar. Children's Aid Societies must carefully balance the safety of the child(ren) against unnecessary intrusion into citizens' lives. However, in the early stages in a file, when little is known, the safety of the child must be the primary concern. Further, the degree of vulnerability of the child is a part of the analysis of a child's safety: The more vulnerable the child, the greater must be the certainty of the facts that speak to the child's safety.

[85] The safety concerns requiring immediate address in this particular case are as follows. The detailed and consistent statements of the child to lead an observer to believe that there was an ongoing persistent inappropriate physical discipline regime in the home coupled with a combination of food deprivation, as part of a discipline regime, and designation of child as a secondary person in the home. This was overlaid by the child's own issues, ODD, ADHD, and mother's emotional-mental state which prevented her from being a more assertive protecting parent for the child in the environment in which they lived. During the period of the investigation up to apprehension mother's approach was to totally discount the position of the child and to ally herself with the V. family in her denials. Any alternative plan to continued residence in the V. household was rejected by mother.

[86] In this context the approach and the position of the Society was justified both before and after apprehension. The Society moved with impressive speed to obtain further information, adjust its thinking, adjust its position, and implement plans that were successively less intrusive. In short the court is satisfied the Society acted properly, fairly and with due diligence in carrying out the investigation, assessing risk and executing the various plans. The overall test has been met – any reasonable person, reasonably informed, would come to the conclusion the Society's conduct of the investigation and action was appropriate and fair.

[87] The request for costs is denied. The motion is dismissed.

Dated at Brantford, Ontario

This 18th day of June 2012.

The Honourable Justice L.P. Thibideau

*Draft notice of claim and statement of claim filed in these proceedings do not demonstrate that the subject matter of this costs motion is actually before the Superior Court of Justice, no documents being filed demonstrating an actual commencement of an action in that court.