WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 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.

Endorsement

File No: 212/10 Date: 2014-03-26

Applicant: Children's Aid Society of St. Thomas & Elgin

Respondents: K.M.; R.G.

Date of Hearing: March 18, 2014

Decision Released: March 26, 2014

Counsel:

• Joyce Dittrich for the Applicant
• Keli Mercereau for the Father
• Katherine Orkin for the Mother

Background and Facts

[1] The applicant apprehended the child from the care of her father on 27 June 2013. It secured a warrant for the apprehension.

[2] The father moved for the return of the child and the placement motions were argued on 15 August 2013. The child was ordered back into the care of her father subject to the supervisory terms identified in an existing (final) supervision order. The father sought costs of the motion and submissions were deferred until the final placement issues were argued. With the resolution of the application, the parties argued the costs issue on 19 March 2014.

[3] The brief background is as follows.

[4] The child was apprehended from both parents in September of 2010 as a result of the parents' being found trafficking in drugs from a local motel. The child was present when police raided their room.

[5] The child was placed with her paternal grandparents until 15 June 2011 when she was returned into the interim care of her father subject to supervision. The child's mother aggressively disputed the wisdom of this placement and the placement was not confirmed by a final order until 3 January 2013 when a final supervision order was consented to. Under that order, the child remained in the care of the father.

[6] Since the mother and father resided in separate communities and the applicant would not provide drivers for the mother, the mother had to find transportation to the father's community for access exchanges with the result that it took another four months to resolve the mother's fixed access regime. This occurred on 29 April 2014.

[7] Within a week, the mother arranged to be driven to and from access by a friend whom the father either disliked or suspected was involved in the local drug culture. When he learned who would be doing the driving, he refused the first post-order exchange.

[8] The mother located another driver. It was alleged the father contacted this person and made implied threats stating he would prefer that the mother have no access whatsoever. This driver withdrew.

[9] The applicant approved the mother's third choice of a driver after investigating her background and notified the father of its approval. The child was given over to the mother and the approved driver for a visit on 21 June 2013 (the first time the approved driver drove) but, on their way back to St. Thomas with the child, both the mother and her driver were stopped by police and arrested for drug trafficking.

[10] The applicant alleged the police had received an anonymous tip respecting both women. When the stop occurred, a "kinder egg" was found with about $440.00 worth of drugs in the rear seat where the mother and child were seated. The mother believed the father's new partner had "planted" the drugs and one or both of them made the anonymous call to police.

[11] Police investigated the incident and dropped the charges on the first court date. They accepted the exculpatory information provided by the mother. They were satisfied the calls about her drug use were false.

[12] On a subsequent date when the approved driver was ready to drive the mother for access, she found all four of her tires slashed.

[13] Additional information about the mother's arrest was received from police and others. Information was received respecting the efforts of the father and his new partner to prevent the mother from exercising any access to her daughter. In the result, the applicant secured the warrant and apprehended the child.

The Motion and Risk Assessment

[14] In support of its motion, the applicant argued risk on four levels: physical harm due to the ongoing conflict between the parents; the father's placement of the planted drugs in a location accessible to the child and the child's witnessing the mother's arrest; alienation of the child from her mother; and, recent allegations of "bedwetting" by the child. My decision focused only the allegations of risk. Given that I considered the risk allegations to be either speculative or premature, I did not address submissions respecting parental conduct.

Costs Analysis

[15] I have reviewed the case briefs respecting a costs order filed by both parties and I thank them for their assistance and guidance. In reaching my decision below, I have considered the following decisions: Kenora-Patricia Child & Family Services v. N.L. et al., 2005 ONCJ 283; Children's Aid Society of the Niagara Region v. C.B. and K.B.; Dorian B. v. Children's Aid Society of Durham Region, (1987), 20 C.P.C. (2d) 61; and, Children's Aid Society of Waterloo Region v. Zeledy B. and Jorge B..

[16] In context of the many and varied "principles" that guide the adjudication of costs against a society, I am careful which principles should be taken literally since all of the cases tendered followed a trial. Particularly, the principle of "thoroughness" expounded by Justice Katarynych in Children's Aid Society of Waterloo Region v. Zeledy B. and Jorge B., supra, referred to in paragraph [39] in Children's Aid Society of Algoma v. Robert M. et al., appear to me to be appropriate considerations over the lifespan of a file but demand some tweaking when considering an investigation up to the point a child is apprehended.

[17] In circumstances where the apprehension itself is the main focus of the motion, assuring a costs award does not dissuade a society from pursuing its statutory mandate takes on greater weight than post-trial principles: Children's Aid Society of Ottawa v. S. and P..

[18] However, for the purposes of this argument, I accept the finding of Justice Bishop in Kenora-Patricia Child & Family Services v. N.L. et al., that succinctly laid out the baseline principle where he stated at paragraph [5] "to order costs against an agency, it need not to have acted in bad faith. The central consideration is fairness and would an ordinary person perceive the actions of the children's aid society as having acted unfairly". I also accept that maliciousness or male fides or honest belief is not the test by which the costs adjudication is to be governed.

[19] On the facts as a whole, I find an ordinary person would not perceive the children's aid society to have acted unfairly.

Parental Conduct and Bad Faith

[20] It is to be recalled that, in my interim decision, I did not address conduct since the motion could be disposed on the narrow issue of risk. However, for the purposes of a costs motion, parental conduct is extremely relevant considering subrule 24(8) — "bad faith" — and clause 24(11)(b) — "reasonableness or unreasonableness of each party's behaviour in the case".

[21] On 29 April 2014, the father consented to the access regime to be enjoyed by the mother. When he consented, he knew she did not drive, he knew of her history in regard to associations in the drug culture and yet he did not seek a single limitation respecting who would drive the child to and from visits. Within weeks of his consent, I am prepared to find credible and trustworthy evidence was adduced that he unilaterally placed restrictions on who might drive the child thereby denying the mother her agreed access or he "dissuaded" those who might drive the child using veiled threats. When the applicant approved the mother's third choice, the father knew he could no longer demand a driver he alone might approve and additional steps were needed to secure what I find to be his intent to renege on his consent and deny the mother any access to the child.

[22] While there were some issues in the applicant's motion materials who its workers actually got information from, had I been required to address conduct, I would have found the evidence both credible and trustworthy that the father and his partner conspired to secure the mother and her driver's arrest for drug possession and/or trafficking. The father and his partner were the only persons with the motive to secure the mother's arrest and his partner had exclusive means to plant the drugs when she placed the child into the car seat. To make any other finding on the facts as presented would beggar rationality.

[23] In Piskor v. Piskor and McGrath, Justice Jennifer A. Blishen of the Superior Court determined "bad faith can be established by the intentional failure to fulfill an agreement in order to achieve an ulterior motive or an intentional breach of a court order with a view to achieving another purpose". This definition fits the father's conduct on all fours. Even though the court did not agree with the applicant's assessment of risk, I am of the view a reasonable person would find the steps the applicant took to be rational in the circumstances of bad faith caused by the father's intentional conduct.

[24] In essence, the father made this litigation necessary. The applicant might have chosen an alternate to apprehension — a contempt motion or an early review of the consent access order — but the fact it did not should not expose it to a costs claim. The father's efforts to get what he wanted were so extreme that a reasonable person would forgive the "on the spot" choice made to apprehend. His efforts were utterly unreasonable and self-serving and, even though he was successful on the motion, a costs award in the face of his conduct would be seen by any person as both unfair and punitive.

Decision

[25] In the result, I dismiss the father's costs claim.

[26] The applicant requested costs on 19 March 2014. I agree with counsel for the father that its claim should not be considered without a costs demand being articulated in the application: Belanger v. Belanger and Capin.

Justice M.P. O'Dea