Court File and Parties

Court File No.: 639/11

Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society, Applicant

— And —

R.M., D.M. and N.M. Respondents

Before the Honourable Justice Barry Tobin

Heard: March 19 and April 27, 2012

Counsel:

• Tara Gatten for the applicant Society
• Gino Morga, Q.C. for the respondent, R.M.
• Warren S. Fullerton for the respondent, D.M.
• Richard Gordner for the respondent, N.M.

TOBIN J.:

ENDORSEMENT ON COSTS

1: ISSUE

[1] The respondent, N.M. (grandmother) seeks an order for costs against the applicant, Windsor-Essex Children's Aid Society (Society) with respect to the temporary care and custody motion held in this case. The other respondents did not participate on this request for costs.

2: INTRODUCTION

[2] The respondents R.M. (mother) and D.M. (father) are the parents of two children. The grandmother is the maternal grandmother of the children.

[3] The Society apprehended the two children from the mother on December 8, 2011. It then brought a child protection application and within that application a temporary care and custody motion seeking an order keeping the children in care pursuant to clause 51(2)(d) of the Child and Family Services Act.

[4] The temporary care and custody motion was first before the Court on December 13, 2011. On that date a without prejudice order was granted keeping the children in the temporary care and custody of the Society. The respondent parents were granted access.

[5] On January 16, 2012, the grandmother, at her request, was added as a party to the proceeding. In my reasons granting the grandmother party status I wrote:

23. The Society has not yet considered the appropriateness of the grandmother as a person with whom the children can be placed. It has looked at the grandmother only as a person who acted inappropriately at the time of the apprehension. The Society has not considered in a comprehensive way whether it is possible to place the children with their grandmother. This is so despite being requested to do so by the grandmother and her Counsel. Her plan merits evaluation.

24. The evidence discloses that the grandmother has a close relationship with the children and has attended to their care in a significant way for a lengthy period of time. It is in the best interest of the children to determine whether a placement with her would be appropriate during the period of adjournment and in the event they are found in need of protection. The grandmother has information that will be important in determining whether she presents a less disruptive alternative to society wardship. The society must have the opportunity to test whether this is the case.

[6] The temporary care and custody motion was argued on February 2, 2012 and reasons released on February 10, 2012. It was ordered that the children be returned to the care of their mother subject to terms of supervision and access with the father. The relief ordered did not pertain to the grandmother.

3: LEGAL CONSIDERATIONS

[7] The Child and Family Services Act contains no provisions dealing with costs. The jurisdiction to award costs in child protection proceedings is provided for in ss. 131(1) of the Courts of Justice Act.

[8] The Court has discretion to award costs to or against a Children's Aid Society whether it is successful or unsuccessful: see Family Law Rules subrule 2(1) "government agency" and subrule 24(3).

[9] When determining whether it is appropriate to order costs against a Children's Aid Society the test to be applied is whether the Society would be perceived by ordinary persons as having acted fairly. Did the Society act outside permissible boundaries or conduct itself unfairly or unreasonably in carrying out its statutory responsibilities?: see Children's Aid Society of the District of Sudbury and Manitoulin v. J.H., [2005] O.J. No. 5798 (OCJ).

[10] In determining whether a Society has acted unfairly or unreasonably, a determination of what responsibilities the Society has are to be considered.

[11] One of the obligations a Society has is to conduct a thorough investigation before acting. The Society also has an obligation to consider alternative measures for protection of children before proceeding to Court. Another obligation the Society has is to continue its investigation as a case progresses. This also imposes an obligation on the Society to reassess its position as more information becomes available: See Children's Aid Society of Toronto v. S.K., (2010), 90 R.F.L. (6th) 202 (OCJ). These duties must be considered in the context of events taking place. The steps a Society can reasonably take to comply with its duties will depend in part on the nature and duration of the risk being investigated. More investigation will be expected for a Society before apprehending a child in circumstances of chronic risk, where the Society has been actively involved with a family, than when an emergency situation arises.

[12] It is only the grandmother who asks for costs of the Motion. What duty did the Society owe to the grandmother before she was added as a party? In Children's Aid Society of Algoma v. R.M., (2001), 18 R.F.L. (5th) 36 (O.C.J.), at paras. 63 and 64, the Court held that before individuals had party status:

"…there was no specific statutory obligation or duty owed by the Society to them to investigate them as a potential placement. There is certainly a duty in the Child and Family Services Act under ss. 57(4) and possibly under ss. 57(5), but this duty is one imposed on a Court, not on the Society. The duty in s. 57(4) is for the Court to consider placement with a relative or other member of the child's extended family.

This does not necessarily mean that the Society has no obligation. Courts cannot make decisions without evidence. The scheme of the Child and Family Services Act gives, in section 40, discretion to a Society to seek a judicial determination of whether a child is in need of protection. Once it does so, it has a statutory duty to present evidence that it will enable the court to make both a finding and a disposition. That evidence will, almost invariably as a result of investigation by the Society. For the court to make the right decision it must have as much relevant evidence before it is possible which means the Society investigation should be full and comprehensive and, I suggest, impartial."

4: POSITION OF THE PARTIES

4.1: POSITION OF THE GRANDMOTHER

[13] The grandmother submits that the Society behaved unfairly and unreasonably in dealing with her. It refused to consider her as an alternate caregiver for the children despite knowing of her involvement with and her ability to care for the children should circumstances arise where the mother could not. Its failure or refusal to consider her plan necessitated her moving to become a party and participating fully in the temporary care and custody motion.

[14] The facts relied upon by the grandmother in support of her position are these:

1. On April 29, 2011, months before the apprehension, the Society worker met with the mother and was told by her that the mother had a good support system. The worker's notes do not elaborate on the nature of the good support system. The worker did not explore with the mother what support system she had.

2. Prior to the apprehension, the Society worker did not investigate the mother's support system. This was the case even though the worker was aware of the Society's duty to place children with community members or relatives if they could not remain with the person who had charge of them.

3. The Society sought a warrant to apprehend the children from a Justice of the Peace who inquired whether there were any family members with whom the children could be placed. The Society worker informed the Justice of the Peace that at that time the answer to that question was unknown. If the warrant was granted, the worker advised the Justice of the Peace, the children would be apprehended, then family members could come forward the Society could look into these potential placements. Internal record checks, police checks and home studies could then be completed.

4. On December 9, 2011, the day after the apprehension, the grandmother contacted the Society worker by telephone to advise that she would like to have the children in her care. She informed the Society worker that the children were in her care half of the time. She also advised that the mother's sister is a teacher in Mississauga and she was willing to take time off to assist.

5. In the face of this information, the Society worker swore an affidavit in support of the clause 51(2)(d) temporary care and custody order it was seeking that stated:

"48. There are no other viable placements available for the child from within the child(ren)'s extended family or the child(ren)'s community, as no one has put forth a plan for the child(ren)s care."

[15] The grandmother argues that the Society misinformed the court as to the availability of family members to care for the children and specifically hid the grandmother's plan from the court.

[16] Even after the apprehension, the Society was aware that the grandmother had a positive relationship with the children. On December 24, 2011, the grandmother, mother and the mother's sister attended at a supervised visit and they were observed to have a positive relationship with the children.

4.2: POSITION OF THE SOCIETY

[17] The Society's position is that Society workers acted professionally, fairly, reasonably and in good faith in their dealings with the grandmother.

[18] The Society's position is that the evidence relied upon by the grandmother must be looked at in context of the events that preceded and followed the apprehension. The Society held a meeting on January 16, 2012 to assess the plan presented by the grandmother. It considered the grandmother's plan at that time and rejected it. It was of the view that the grandmother and mother have a close relationship. The grandmother had "…not demonstrated that she can be protective of the children, given her passive position on the actions taken by the mother, namely taking the children to numerous places to be questioned and/or assessed."

[19] The Society also argues that the grandmother has failed to recognize the role confidentiality plays when a Society is working with families. Workers do not contact extended family or community members without the expressed permission of a parent. The problem with this argument is that there is no evidence the worker asked the mother to elaborate upon her support system. There is no evidence that the Society worker asked the mother for permission to speak with family members, including the grandmother. The evidence does disclose that the day after the apprehension the grandmother informed the worker of the extent of her involvement with the children.

[20] The Society argues that the statement contained at paragraph 48 of the affidavit, filed in support of the temporary care and custody motion, was not intended to mislead. The children had been apprehended on December 8, 2011 because of historical conflict issues between the parents and subsequent to the mother taking the children to a doctor due to alleged sexual abuse of the children by the father. The Society's affidavit was sworn three days following the apprehension on December 12, 2011. Within those three days, the Society had not made a determination that there was a viable plan from the grandmother.

5: ANALYSIS

[21] The Society had been assisting the mother and father on a voluntary basis for a number of months prior to the apprehension. The Society worker did not have details of the extent of the grandmother's role until after the apprehension. This was not unreasonable as the parents were working voluntarily, up to a point, and an apprehension was not contemplated before December 2011. There did not appear to be any pressing need to seek permission from the parents to interview relatives who might be available to present a plan for the care of the children should the need arise. From September 2011 until December 5, 2011, the Society reported no concerns with respect to the children.

[22] The Society sought to apprehend the children when it received an endorsement made following a case conference held in divorce proceedings between the mother and the father.

[23] The endorsement dated December 7, 2011 stated that the court had:

"…serious concerns, that because of parental conflict, [the children] may be in need of protection because of emotional abuse. It is imperative that the Children's Aid Society react promptly to investigate the circumstances in which these children find themselves and take any steps necessary to protect these children."

[24] When the Society appeared in front of the Justice of the Peace seeking the warrant, it fairly stated that it did not know whether family members were available to care for the children but that following the apprehension it would investigate family members who came forward. This is consistent with the statement contained in the worker's affidavit filed in support of the temporary care and custody order sought.

[25] I do not find that the Society misled the Justice of the Peace. At that point, the Society did not have enough information to safely state that the grandmother was an appropriate person to care for the children.

[26] The same is not the case with respect to paragraph 48 of the affidavit relied upon in support of the clause 51(2)(d) order which the Society sought. When the affidavit was drawn, the Society was aware that the grandmother wanted to be considered but the Society had not had a full opportunity to assess her plan. It should have stated this in its affidavit rather than what appeared to be a standard clause. It could have stated that the grandmother had offered a plan but that the Society had not yet had a chance to consider it and that the Society would consider it in an expedited fashion. I will give the Society the benefit of the doubt that the apprehension and drafting of the material for the temporary care and custody motion occurred very quickly and it was through inadvertence rather than design that details of the grandmother's request was not disclosed. The grandmother's call was Friday, December 9, 2011 and the affidavit was sworn Monday, December 12, 2011.

[27] After the apprehension, the grandmother sought to be added as a party. The motion was argued on January 16, 2012. On January 17, 2012, the endorsement allowing the grandmother to be added as a party was released.

[28] On January 16, 2012, (the day before the release of reasons on the motion to add grandmother as a party) the Society conducted a plan of care meeting which included an assessment and rejection of the grandmother's plan. The Society could have conducted a more comprehensive investigation before rejecting the grandmother's plan on January 16, 2012. It had from December 9, 2011 to January 16, 2012 to do so. There is no evidence that it interviewed her or asked to inspect her premises. It did not consider whether the children could be placed with the grandmother under terms of supervision.

[29] However, I find that the decision reached on January 16, 2012 not to consider the grandmother further for the reasons set out in paragraph 18 above is not indefensible or unfair when considered in the context of the information the Society had at the time and the early stage of the investigation. There is no evidence the Society failed to continue its investigation as this case progressed toward the argument of the temporary care and custody motion.

[30] For these reasons, I find that the Society would not be perceived by ordinary persons as having conducted itself in an unfair or indefensible manner with respect to its dealings with the grandmother up to the argument of the temporary care and custody motion such that costs should be ordered against it. While it could have been more diligent in investigating and assessing the grandmother's plans, its actions, when looked at in the context of the events as they unfolded from the spring of 2011 to the argument of the temporary care and custody motion, cannot be said to amount to unreasonable behaviour: that is, unreasonable behaviour which is unfair, indefensible or exceptional as judged through the perspective of the ordinary person: see Children's Aid Society of Niagara Region v. D.(W.), (2004), 1 R.F.L.(6th) 84 (Ont.S.C.).

6: CONCLUSION

[31] The grandmother's request for costs is denied.

Dated: June 15, 2012

"original signed and released"

Barry M. Tobin Justice