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 File and Parties
Court File No.: Belleville Ontario 56/10 Date: 2012-05-01 Ontario Court of Justice
Between:
Hastings Children's Aid Society Applicant,
— AND —
J.L. and D.T., Respondents.
Before: Justice E. Deluzio
Heard on: March 23, 2012
Decision on Costs released on: May 9, 2012
Counsel:
- Ms. N. Philips for the applicant society
- Mr. S. Baldwin for the respondent, D.T.
Decision
Deluzio J.:
Introduction
[1] This is a claim for costs made by the Respondent D.T. against the Hastings Children's Aid Society arising out of a child protection application brought by the Society involving the two biological children of the respondents, namely R.T., born […], 2000 and C.T., born […], 2003.
[2] The Society's application proceeded to a trial which lasted 14 days between April 28, 2011 and October 14, 2011. The court heard from 21 witnesses.
[3] I have delivered a written decision in this matter, dated October 31, 2011.
Trial Issues and Outcome
[4] At trial both finding and disposition were at issue. The Society sought a finding that both girls were in need of protection based on risk of sexual and emotional harm and a supervision order with the children remaining in the care of their mother, subject to access by their father in the discretion of the Society.
[5] The focus of the trial was on whether or not the girls were in need of protection from Mr. T. based on historical allegations that Mr. T. had sexually abused R.T. The Society sought a supervision order so that the Society could ensure that any access between Mr. T. and his children would be supervised and in the discretion of the Society. The Society wanted Mr. T. to undergo and "pass" a risk assessment before he could exercise any unsupervised access. The mother and the Children's Lawyer supported the Society's position. The father denied that he had ever been sexually inappropriate with either of his daughters, and he opposed both the finding and the disposition.
[6] The decision of this Court was that the Society had failed to prove, on a balance of probabilities, that the father posed a risk of sexual harm to the children.
[7] C.T. was not found to be in need of protection and her access with her father is now occurring in accordance with the Superior Court order which provides for alternate weekends and specified holiday access.
[8] R.T. was found to be at risk of emotional harm, based on evidence of R's ongoing anxiety about access with her father, but the risk of emotional harm was not found to result from any action or failure to act by the father. Based on the evidence at trial, the Court found that the actions of the mother and her family contributed to R's anxiety about access.
[9] A six month supervision order was made to address R's anxiety about access with her father. The primary condition of the supervision order was a condition that R. attend counselling with Dr. Moss, and that R. have access with her father once per week for six hours supervised by a paternal family member with any additional access as recommended by R's therapist and agreed by the parties and R. The order attempted to minimize the involvement of the Society by directing that, whenever possible, contact between R. and Society workers was to occur in the presence of Dr. Moss, and that R. was not to see any other therapist or counsellor unless approved by the Court or agreed by the parties.
Background
[10] The history of this matter, predating the Society's decision to commence protection proceedings, is relevant to the issue of costs and while it is reviewed extensively in my judgment, I will briefly review some of the significant events as follows:
[11] The children have been in the care of their mother since their parents separated on March 15, 2006. They had regular access with their father, including midweek overnight and alternate weekend visits, until June 2006 when R. disclosed sexually inappropriate behavior by Mr. T. At the time of the disclosure the parties were living in Brighton, Ontario and the Northumberland Children's Aid Society became involved and conducted a joint investigation of the allegations with the Brighton OPP.
[12] Mr. T. was charged with sexual assault, sexual interference and sexual exploitation of R. and he was released on the condition that he have no contact with the children. He did not see his children again until February 2009. The Northumberland CAS did not start protection proceedings when Mr. T. was charged because the release condition prevented him from having any contact with the girls but the NCAS did remain involved with Ms L. and the girls.
[13] R's disclosure of sexual abuse arose in the context of a custody dispute just days after Mr. T. commenced divorce proceedings which included a claim for custody of the children. Ms. L. was served with divorce papers on Wednesday, July 19, 2006 and Mr. T. had access the following weekend from July 21 to July 23, 2006. On Tuesday, July 25, 2005 Mr. T. was charged with sexual assault.
[14] In August 2007, just before Mr. T's criminal trial was scheduled to proceed, the charges against him were withdrawn because the Crown had determined that it had no reasonable prospect of obtaining a conviction.
[15] After the charges were withdrawn, Mr. T. recommenced his divorce proceedings seeking access to the children, and Ms L. contacted the Northumberland Children's Aid Society ("the NCAS"). Ms. L's position was that R. continued to maintain that she had been sexually abused by her father, and did not want any contact with him.
[16] The NCAS started a protection proceeding on October 25, 2007 seeking a finding that the girls were in need of protection on the ground that there was a risk of emotional harm. Notwithstanding the extensive involvement of Ms. L. and the children with the NCAS from March 2006 until October 2007, all of which involvement was focused on the children's alleged disclosures of sexual abuse and the outstanding criminal proceedings, the NCAS did not ask for a finding that the children were at risk of sexual harm.
[17] When the NCAS commenced its protection proceedings, Mr. T's divorce and custody proceedings in the Superior Court were once again on hold.
[18] Mr. T. continued to maintain his innocence with respect to the sexual abuse allegations and refused to consent to any order in the child protection proceedings that would require him to have supervised access at the Society offices. Consequently he went without seeing his children for several years.
[19] Mr. T. did agree to participate in an assessment process to establish an access plan and the NCAS agreed. An assessment was conducted by Dr. Voysey and his access plan (the Voysey plan) was approved by the NCAS.
[20] On January 23, 2009 the NCAS agreed to terminate its protection proceedings on the basis that the parties would follow the terms of the Voysey plan on an interim basis, pending trial of the divorce proceedings. The NCAS filed a Consent to Terminate its protection application and attached a copy of Dr. Voysey's plan to the consent.
[21] The Consent read as follows: "The Children's Aid Society of Northumberland terminates the proceedings and the parties agree to follow the communication enhancement project prepared by Dr. Voysey on an interim basis pending trial of the domestic proceedings, bearing court file number 240/06".
[22] The Voysey plan anticipated and prescribed that Mr. T's access would progress from therapeutically supervised access to unsupervised access and the NCAS was aware of this. The plan provided that the parties could request the further involvement by an assessor after a minimum of 12 therapeutically supervised access sessions, and before access transitioned to untherapeutically supervised access and again, before access transitioned to supervised access.
[23] The Consent to Terminate filed by the NCAS was based on the parties' agreement to follow the Voysey plan on an interim basis only, pending trial of the domestic proceedings. There was no additional requirement that the NCAS had to approve any out-of-court settlement by the parties or any provision allowing unsupervised access by Mr. T. There is nothing in the terms of the Consent to Terminate that precludes the possibility of a settlement being reached by the parties or that requires the parties to notify the NCAS in the event that the terms of access finally determined in the divorce proceedings do not mirror the terms of the Voysey plan.
[24] After the NCAS withdrew its protection application in January 2009 the agency responsible for therapeutically supervising the visits, Stevenson Waplak, arranged the first supervised visit which occurred on February 11, 2009. Stevenson Waplak worked with the parties to implement the Voysey plan, and visits progressed from therapeutically supervised visits, to visits supervised by two of Mr. T's aunts, first at the Stevenson Waplak offices, and then progressing to Mr. T's home.
[25] While the Voysey plan was being implemented the parents continued to negotiate the custody and access issues in their ongoing divorce proceedings in Superior Court.
[26] On November 9, 2009, the day before their trial was scheduled to commence in Superior Court, the parents, who were both represented by lawyers, entered a Consent Final Order dealing with issues of custody and access. The terms of this consent were negotiated following months of litigation, including several motions, judicial case conferences and settlement conferences.
[27] The Final order gives Ms. L. sole custody of the girls, subject to a specified, gradually expanding schedule of access for Mr. T., transitioning to unsupervised access. The Order does not incorporate all of the terms of the Voysey plan. In particular, the Order specifies automatic start dates for supervised access by family members of Mr. T. (December 15 2009), and fully unsupervised access (March 15, 2010) and does not require or anticipate the involvement of an assessor during transitions from one phase of access to the next.
[28] Unbeknownst to Mr. T. and his lawyer, while negotiations in the Superior Court matter were ongoing, Ms. L., who had moved with the girls to Hastings County, was also in contact with the Hastings Children's Aid Society, and was telling that Society that the girls were reacting negatively to the supervised access, did not want any unsupervised access with their father, and were at risk of sexual harm if unsupervised access with their father occurred.
[29] Ms. L. first contacted the HCAS on February 4, 2009, less than two weeks after the NCAS filed the Consent dated January 23, 2009 in which the NCAS agreed to terminate its protection proceedings and the parties agreed to follow the Voysey plan on an interim basis.
[30] Ms. L., who was by then living in Trenton, told the Society that the girls' father was sexually abusive, and the NCAS couldn't do anything because she no longer lived in their jurisdiction. Ms. L. did not tell the intake worker about the terms of the Consent to Terminate in the NCAS protection proceedings or the Voysey plan.
[31] At trial, Ms. L. testified that she made contact with the Society because R. was continuing to maintain that she had been sexually abused by her father and she didn't want to see him. Ms. L. said she continued to believe that the girls were at risk of both sexual and emotional harm with their father if access was unsupervised and she wanted the Society to supervise Mr. T's access. She said she felt pressured to sign the Consent in Superior Court.
[32] The HCAS started its protection application in mid February 2010 to ensure that Mr. T. could not exercise unsupervised access in accordance with the Superior Court order. The Society's protection application was based primarily on information provided by Ms. L. who identified concerns that both C. and R. were experiencing high levels of anxiety at the prospect of moving to unsupervised access.
The Investigation by the Hastings Children's Aid Society
[33] The shortcomings of the investigation by the HCAS are fully reviewed in the judgment of this Court released on October 31, 2011. The most significant oversights are listed below:
(i) The Society's protection application was based primarily on information provided by Ms L. about how the girls were responding to the access visits. The Society failed to independently investigate the progress that had been made by Mr. T. and the girls during the therapeutically supervised access and family supervised access which had progressed over a period of a year.
(ii) The HCAS did not obtain or review the complete file from the NCAS before instituting its own protection proceedings and therefore the HCAS was unaware that the NCAS had proceeded only on the basis of risk of emotional harm and was also unaware of the terms of the Consent to Terminate filed in the NCAS proceedings. Therefore, the Society initiated its protection application based on the mistaken belief that the father was required to undergo an assessment before his access could progress to unsupervised access.
(iii) The Affidavit filed sworn by protection worker, Jane Robson, February 18, 2010, purporting to detail the grounds for the Society's protection application, contained incorrect, incomplete, and misleading information about the previous criminal, child protection and custody proceedings. Ms. Robson failed to investigate and therefore could not inform the Court about the positive progress made by the girls during the therapeutically supervised access, and about how the girls were doing during the visits supervised by Mr. T's aunts.
(iv) While the matter was before the court, the Society had a positive, ongoing duty to investigate and evaluate its protection concerns, and it failed to do so.
(v) Affidavits filed by ongoing protection workers, including the affidavits of Heather Fairbairn, sworn on July 19, 2010, September 13, 2010, and the Affidavit of Chris Misevicius sworn March 7, 2011, continued to repeat the inaccurate, incomplete and misleading information contained in Ms. Robson's affidavit. By the time the matter proceeded to trial, neither worker had reviewed the NCAS file and neither worker was aware of the terms of the Consent to Terminate the NCAS protection proceedings.
(vi) Ms Fairbairn and Mr. Misevicius also failed to provide the court with a full and balanced account of the relevant facts and both workers, like Ms. Robson, relied almost exclusively on what Ms. L. was telling them. For example both Ms. Fairbairn and Mr. Misevicius observed access visits between the girls and their father during which the girls appeared comfortable, relaxed and happy and interacting positively with their father. Neither worker included this relevant information in affidavits filed by them. Instead both workers continued to repeat the mother's concerns about how unhappy and anxious the girls were before and after access visits.
(vii) Ongoing Society worker Chris Misevicius engaged in inappropriate e-mail communication directly with R. and at trial he was found to have played a significant role in R's decision in March 2011 not to attend access visits with her father. Mr. Misevicius' supervisor, Jennifer Bouma, sat through the trial evidence to assist the Society's counsel. She testified that she found that Mr. Misevcius' e-mail communication with R. to be inappropriate and noted that after his testimony Mr. Misevicius was removed from the file and the Society was reviewing the practice of workers e-mailing children directly.
[34] Two Society supervisors testified and acknowledged that the HCAS failed to conduct a thorough investigation of the protection concerns raised by Ms L. and the Society was not in possession of all of the relevant facts before commencing the protection application.
[35] Karen McCoy supervised Jane Robson. Ms. McCoy acknowledged that the Society's protection application was based primarily on information provided by Ms. L. who was saying that C. and R. were experiencing high levels of anxiety and emotional upset at the prospect of moving to unsupervised access. Ms. McCoy admitted that she approved the initiation of the protection application even though she had never seen the complete protection file of the NCAS. Ms. McCoy was still unaware when she testified at trial that the NCAS had identified only the risk of emotional harm, and not risk of sexual harm, in its protection application commenced in 2007. Ms. McCoy also shared Ms. Robson's incorrect understanding that the father had failed to complete an assessment as recommended by the NCAS before his access moved to unsupervised.
[36] Jennifer Bouma is the current Society supervisor. She was the last witness to testify after having heard all of the trial evidence. She agreed that the HCAS did not fully investigate the protection concerns before bringing a protection application to effectively suspend the father's access rights detailed in the Consent Superior Court Order. She agreed that the Society has never properly investigated or addressed the father's concern that the negative influences in the maternal family have impeded his access. And she agreed that individuals with relevant information about the access, such as the paternal aunts, were not interviewed by the Society. She also agreed with the suggestion that the mother used the Society to advance her own agenda which was to ensure that the father did not have unsupervised access.
[37] Ms. Bouma maintained that it was the Society's position that the children were at risk of both emotional and sexual harm because the NCAS had "verified" sexual abuse of R., but she acknowledged that the NCAS had also failed to conduct a thorough investigation when R's disclosure first arose. It became clear to the Court that Ms. Bouma's own personal views were in conflict with the Society's "official position" when Ms. Bouma was asked during cross-examination whether, after hearing all of the evidence at trial, it was still the Society's position that the children are at risk of sexual harm with their father. Ms. Bouma's response was that she required legal advice before answering that question.
[38] The allegations that the Society relied on at trial were the same allegations that were investigated by the NCAS. These allegations were fully known by the NCAS when it started its protection application in October 2007 on the basis of risk of emotional harm only; and in January 2009 when the NCAS terminated its protection proceedings on the condition that the parties implement the Voysey plan on an interim basis until trial of the divorce proceedings.
[39] Throughout 14 days of trial, there was no new evidence tendered or revealed to support a finding that the children were at risk of sexual harm that was not already known at the time of the original joint police/CAS investigation in July 2006. That investigation culminated in the Crown's decision to withdraw the criminal charges in August 2007 and later in the decision of the NCAS to terminate its protection proceedings in January 2009. After hearing all of the evidence, the Court was unable to find that the father was ever sexually inappropriate with either C. or R., and was therefore unable to find, on a balance of probabilities, that the girls were at risk of sexual harm during unsupervised access with their father.
The Law
[40] The authority for a court to award court costs is found in subsection 131(1) of the Courts of Justice Act, R.S.O. 1990 c. C-43, as amended:
131. Costs (1) Subject to the provision 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.
[41] According to Rule 24(1) there is a presumption that a successful party is entitled to costs; but the Court has discretion to award costs depending upon whether the successful party has behaved reasonably.
[42] The presumption that the successful party is entitled to costs does not apply in child protection cases: Rule 24(2) of the Family Court Rules.
[43] The absence of the operation of a presumption when the unsuccessful litigant is a child protection agency means that other factors have to be considered, in addition to success, in determining whether costs should be granted.
[44] Rule 2 of the Family Law Rules sets out the primary objective of the rules which is to enable the court to deal with cases justly and Rule 2(3) provides that dealing with cases justly includes:
(a) Ensuring that the procedure is fair to all parties;
(b) Saving expense and time;
(c) Dealing with the case in ways that are appropriate to its importance and complexity;
(d) Giving appropriate court resources to the case while taking account of the need to give resources to other cases.
[45] Rule 2(4) requires the Court to apply the rules to promote the primary objective and requires the parties and their lawyers to help the Court promote the primary objective of dealing with cases justly.
[46] The essential test for the appropriateness of an award of costs against a Society is whether the Society should be perceived by ordinary persons as having acted fairly. See: Children's Aid Society of Niagara Region v. W.D., 1 R.F.L. (6th) 84 (Ont. Div. Ct.); Children's Aid Society of Waterloo (Regional Municipality) v. C. (Z.B.), [1996] O.J. No. 4245.
[47] In Children's Aid Society of Niagara Region v. W.D., Justice Katarynch described the circumstances that would cause an ordinary person to perceive a Society as having acted fairly:
(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 decision 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 weighed the competing version 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;
(g) The society has investigated all pieces of relevant information not just those pieces for which there is uncontroverted proof.
Decision
[48] I have already found, and in fact two Society supervisors who testified at trial conceded, that the Society failed to conduct a thorough investigation before proceeding with a child protection application. The Society relied almost exclusively on what the mother was saying. The Society failed to take into account that the initial allegations arose during the context of a custody dispute, and failed to fully investigate the previous child protection proceedings initiated and then terminated by the Northumberland CAS.
[49] In its haste to launch its protection application before the father could have supervised access with his daughters, the Society proceeded with tunnel vision by failing to interview the people who had been directly involved with supervising the father's access. Throughout 21 days of trial the HCAS did not present any new evidence to support a finding that the girls were at risk of sexual harm. The only current information relied on by the HCAS was the evidence of several witnesses, including Society workers, Ms. L., grandmother M. H. and Ms. Madieros, that the girls were experiencing anxiety related to the expansion of access with their father, but most of this evidence was about R. and not C.
[50] The Society did speak with Dr. Moss, but at trial Dr. Moss testified that he was so concerned that the Society worker was not hearing what he was saying that he sent a letter to the Society to ensure that his input was not misinterpreted. While a copy of Dr. Moss' letter was attached as an exhibit to the affidavit of Jane Robson, the contents of Dr. Moss' letter were not fairly reflected in the statements made by Ms. Robson in her affidavit. In particular Ms. Robson does not say anywhere in her affidavit that according to Dr. Moss by the conclusion of the therapeutically supervised access "the children were no longer demonstrating the need for any external professional input to engage with their father" or that Dr. Moss' finding regarding the access, based on his experience in supervising the access visits, "was that the children indicated a continued wish to develop a relationship with their father, and enjoyed the contact they received from their father".
[51] The Society did not speak with the father about how he thought the access was going. The Society did not speak with Jeff Waplak, whose agency was responsible for implementing the therapeutically supervised access. The Society did not seek to review the meticulous access notes kept by Stevenson Waplak.
[52] The Society did not interview the paternal aunts who were involved with and had witnessed access visits between the father and the girls for a year before the Society commenced its protection application. The aunts had participated in therapeutically supervised access at the agency and then supervised the father's access once access moved to the father's home. At trial, both of the aunts were found to be credible, reliable knowledgeable witnesses who provided the Court with important, positive information about the girls' interactions with their father during access. Other members of Mr. T's family, including his mother and sister who testified at trial and were found to be credible and reliable witnesses, had been regularly attending the father's access visits for months, and had first hand information about the girls' interactions with their father during access visits and they were not contacted by the Society.
[53] Since the Society's basis for starting its protection application was that the girls were demonstrating anxiety and emotional upset at the prospect of moving to unsupervised access, it is astonishing that the Society did not take the time to speak with any of these people who had directly witnessed access visits, before starting its protection application.
[54] The Society, including all of the workers and supervisors who testified at trial, steadfastly and mistakenly believed that the NCAS had required Mr. T. to complete an assessment before his access progressed to unsupervised and that Mr. T. had failed to do so.
[55] There is no excuse for the Society's failure to inform itself and the Court of all of the relevant background information before the trial commenced. On July 22, 2010, Mr. T's counsel wrote to the Society and asked the Society to withdraw its protection application. In the letter, counsel for Mr. T. detailed the history of the criminal proceedings, NCAS child protection proceedings and Superior Court proceedings. He pointed out to the Society that its protection application was not based on any new fact or circumstance that had not already been the subject of the OPP investigation, the NCAS investigation or the Superior Court proceedings that culminated in the Consent order which provided that Mr. T. could begin having unsupervised access. He also pointed out that the Consent Superior Court order made no reference to the need for further involvement of counselling professionals before unsupervised access could start.
[56] It is clear from the evidence at trial given by the Society workers and their supervisors that even after the Society received this letter from Mr. T's counsel, the Society failed to review and investigate the previous litigation history involving the parties and instead continued to pursue its application seeking a finding that the children were at risk of both sexual and emotional harm if unsupervised access occurred.
[57] Between the time that the criminal charges were laid in July 2006 and the date of his first therapeutically supervised access visit in accordance with the Voysey plan, Mr. T. went almost three years without having any contact with his daughters. The therapeutically supervised access progressed over the course of a year with two visits each week to the point where Mr. T. was having access with his daughters, in his own home, supervised by one of his aunts. In November 2009, on the eve of trial, Mr. T. negotiated the terms of the Consent Superior Court order in good faith and he was looking forward to starting normalized, unsupervised access by mid-March 2010. Instead Mr. T. was served with this protection application, and his access rights pursuant to the Superior Court order, were effectively suspended.
[58] When the Society first launched its protection application, Mr. T. agreed to continue to exercise his access under the supervision of one of his aunts and this supervised access continued for another year. However, at the time that the trial commenced, no access was occurring. First R. and then C. stopped attending access. In March 2011 the Society, and in particular the ongoing worker, Chris Misevicius, was found at trial to have played a significant role in R's decision not to attend access with her father.
[59] Midway through the trial, I ordered specified access between Mr. T. and both girls to be supervised by a specified member of Mr. T's family. I also ordered that R. attend for counselling with Dr. Moss.
[60] At the end of the trial, at the Court's request, Dr. Moss returned to testify about R's response to the access visits. He testified that in his opinion R. was experiencing clinical anxiety and was worried about the possibility of unsupervised access visits. On the basis of Dr. Moss' evidence, I found that there is a risk of emotional harm to R. if she is required to attend unsupervised access with her father in accordance with the Consent Superior Court order. I made this finding based on evidence that R. continued to believe her father was sexually inappropriate with her. I did not find that the risk of emotional harm resulted from any action or failure to act by Mr. T.
[61] In order to preserve his access with his children, Mr. T. had no choice but to vigorously defend the Society's efforts to establish that he posed a risk of sexual harm to his daughters.
[62] There is no evidence that Mr. T. failed to cooperate with the Society, or that his actions contributed to the length and expense of these proceedings. There was evidence about Mr. T's reluctance to have direct contact with Society workers without his lawyer present but Mr. T's caution is understandable in light of the Society's failure to talk to him or any of his family members to gain their perspective about the access before starting these proceedings.
[63] Mr. T. has been steadfast since 2006 in his denial of having ever been sexually inappropriate with his daughters, and he vigorously defended this evidence during the trial. Through lengthy and effective cross-examinations Mr. T's counsel was able to establish the shortcomings of the Society's investigation and to raise concerns about the reliability of R's initial disclosure given the timing of that disclosure. Mr. Baldwin's cross-examination of R's counsellor, Ms. Madieros, provided the Court with important evidence about how the counselling R. received after child protection proceedings were commenced by the NCAS, reinforced R's anxieties about access and caused her to become entrenched in her belief that she had been sexually abused by her father. The evidence presented by Mr. T. at trial about the positive nature of the access visits before the society became involved was also important and relevant to the Court's ultimate determinations on the issue of the finding and disposition.
[64] The focus of the trial was whether the girls were at risk of sexual harm and the Court found that there was no evidentiary basis for this finding. Only R. was found to be at risk of emotional harm. Had the Society proceeded on the basis of risk of emotional harm only, the court proceedings could have been focused on current evidence without the need to review the historical allegations and previous court proceedings and a lengthy, expensive trial could have been avoided.
[65] No order was made for C. and she has been exercising regular access with her father in accordance with the Superior Court order since the decision of this court was rendered on October 31, 2011.
[66] The incomplete initial investigation by the Society and the Society's failure to meet its ongoing, positive obligation to continue to investigate and inform the Court about the relevant facts, as detailed above, must be considered in light of the evidence in this case and must be weighed on the scale of fairness: would an ordinary person perceive the Society as having acted fairly.
[67] When considering costs against a Society, the accountability of the Society is the Court's primary concern. The Society has an obligation to treat all clients of the Society fairly and has an obligation to gather and present all relevant evidence to the Court so that the Court can carry out its duties properly and as expeditiously as possible. The Society also has an obligation to assess and reassess its position as more information is acquired. In this case, even after having heard all of the trial evidence, the Society, according to Ms. Bouma who testified last at trial, was unwilling to change its position and continued to assert that the Court should find the children to be at risk of sexual harm during unsupervised access.
[68] I find that an ordinary person would perceive that the Society has not acted fairly in this matter and therefore the Society should be held accountable for its actions with an award of costs. I do not find that the Society acted in bad faith but even in the absence of bad faith the Society should not be immune to the cost consequences of litigation.
[69] Mr. T's counsel has submitted a bill of costs totalling $111,269.97 and asks for his costs on a substantial indemnity basis. However Mr. T. was not wholly successful because the Court did find that R. is at risk of emotional harm if access is moved to unsupervised access. I note that Mr. T. did not make a formal offer to settle in this matter and that no requests for costs were made by Mr. T. during earlier stages of this proceeding.
[70] Mr. T. did not file an Answer and Plan of Care in this matter until November 2010 and could have been noted in default. Without Mr. T. having filed an Answer setting out his position it would have been difficult for the Society or the Court to properly assess the prospects for settlement of this matter. It is certainly possible that had Mr. T. filed his Answer sooner the matter could have been reached for trial sooner. Therefore Mr. T. is not entitled to legal costs he incurred prior to November 2010.
[71] This matter was before the court for over two years before the trial commenced. The trial lasted 14 days and the court heard from 21 witnesses. The historical nature of the sexual abuse evidence largely determined the length of the trial. The bill of costs submitted by Mr. T's counsel is reasonable, especially taking into account the lengthy and complicated legal history in this matter. The stakes for Mr. T. at trial were high and it was reasonable for him to vigorously and thoroughly defend and challenge the Society's evidence.
[72] Taking into account all of the circumstances of this case, and considering the factors set out at Rule 24 of the Family Law Rules, I fix costs in the amount of $50,000.00.
Released: May 9, 2012
Justice E. Deluzio
