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.

(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2014-06-11

Court File No.: Orangeville 58/13

Between:

The Children's Aid Society of the County of Dufferin, Applicant

— AND —

E.H., Respondent

Before: Justice Philip J. Clay

Heard on: May 23, 2014

Reasons for Judgment released on: June 11, 2014

Counsel:

• Christine A. Torry — counsel for the applicant society
• Gene C. Colman — counsel for the respondent

CLAY J.:

BACKGROUND

[1] The Children's Aid Society of the County of Dufferin (DCAS) seeks leave of the court to withdraw its Protection Application concerning the child A.D.H. born […], 2004. The Respondent consents to the withdrawal but seeks her costs on a full indemnification basis.

[2] DCAS first became involved with the Respondent in this matter on March 7 when they received a referral from an employee of the Children's Aid Society of Toronto (TCAS) that advised them that the Respondent had moved to Dufferin County and that the said child was developmentally delayed and at risk.

[3] Further information was provided to DCAS and they opened an investigation. Much of that information came from an employee of TCAS, Sherri McMullen. The Respondent, a pediatric nurse, had been a long term foster mother (17 years) of developmentally delayed children in Toronto and Ms. McMullen had been the supervisor of the foster care unit.

[4] The Respondent had adopted A.D.H. and one other foster child. She had had a disagreement with Ms. McMullen at a TCAS meeting in November 2012. She had recently resigned as a foster mother and was in the process of moving into her Dufferin county home when Ms. McMullen raised her concerns.

[5] On March 11, 2013 a TCAS worker attended at the Respondent's Toronto home, observed the subject child and reported that there were no concerns. TCAS closed their newly opened file.

[6] On April 18, 2013 DCAS obtained a warrant and apprehended A.D.H. and issued a Protection Application seeking to make A.D.H. a Society ward for a period of 6 months with access to the Respondent in the discretion of the Society.

[7] Mr. Colman for the Respondent prepared extensive materials for the apprehension hearing that occurred on April 23, 2013.

[8] On April 24, 2013 the Honourable Mr. Justice D.B. Maund returned the child to the care of the Respondent under what can only be described as very minimal supervision terms. Justice Maund made clear that his decision was in relation to the temporary care of the child during the period of an adjournment to a temporary care hearing.

[9] The temporary care hearing was spoken to during an attendance on May 8, 2013. Respondent's counsel was unsuccessful in having the matter adjourned from the already scheduled date of May 28, 2013 so that other procedural motions could proceed, the most significant of which was his desire to add the TCAS as a party to the proceeding.

[10] The temporary care hearing proceeded before the Honourable Madam Justice J. Baldock on May 28. She reserved her decision. Her decision was given orally on August 2, 2013. A transcript of that decision was filed. She found that no formal supervision order needed to be made but that the Respondent should sign consents allowing the DCAS to obtain third party information (which had already been done).

[11] After extensive argument by Mr. Colman Justice Baldock ordered that costs could be spoken to once the proceeding was completed.

[12] DCAS then determined that they would seek leave to withdraw. The Respondent wanted costs and after a number of adjournments the matter was set for a half day argument on May 13 essentially on the costs issue.

[13] There were other motions brought by Mr. Colman relating to adding TCAS to the proceeding. After he was unable to delay the May 28 hearing Mr. Colman brought a motion returnable July 3, 2013 in the period when the temporary care hearing was on reserve. That motion was ultimately adjourned to January 7, 2014 and then that date was vacated on consent on December 24, 2013.

[14] The total costs sought by Mr. Colman are $113,575.25 plus H.S.T. and disbursements on a full indemnity basis and $68,145.15 plus on a partial indemnity basis.

THE LAW

[15] It has been held that a Children's Aid Society is not allowed to simply withdraw an Application as it would usurp the court's function to determine if a child is in need of protection. The court must consider whether continuing protection concerns exist; whether all parties consent, and the reasons for the withdrawal. Children's Aid Society of London and Middlesex, 22 R.F.L. (6th) 284 (Ont. S.C.J.).

[16] There was consent to the withdrawal in this matter and the contested issue before the court was costs. Any determination of costs must begin with the provisions of the Family Law Rules. Rule 24 addresses costs and provides as follows:

RULE 24: COSTS

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).

NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY

(2) The presumption does not apply in a child protection case or to a party that is a government agency. O. Reg. 114/99, r. 24 (2); O. Reg. 544/99, s. 10 (1).

COURT'S DISCRETION — COSTS FOR OR AGAINST GOVERNMENT AGENCY

(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful. O. Reg. 114/99, r. 24 (3); O. Reg. 544/99, s. 10 (2).

[17] It has been held that the rationale for making an exception to the presumptive entitlement to costs in child protection cases is that societies have a statutory obligation to investigate and start a case if there is reason to believe a child is in need of protection. Societies should not be dissuaded from pursuing their statutory obligations to for fear of a costs award. Costs are awarded in only exceptional circumstances. Sarnia-Lambton Children's Aid Society v. K.B., 2011 ONCJ 802 (Ont.C.J.) at para. 16.

[18] In CAS York Region v. J.E. the court held that:

1. Costs against a society should only be awarded in exceptional circumstances.
2. Exceptional circumstances include the conduct by the society that is seen as patently unfair by the public at large.
3. Costs may be awarded against a society even absent bad faith.

[19] Other cases have noted that child protection agencies should not be penalized for attempting to fulfill their mandate, unless they have acted in some indefensible manner (See: Children's Aid Society of Ottawa-Carleton v. V., 2001 CarswellOnt 1991; Children's Aid Society of Algoma v. M. (R.), 18 R.F.L. (5th) 36 (Ont. C.J.)), or have acted in a way where it would be perceived by an ordinary person as having acted unfairly (See: Children's Aid Society of Niagara Region v. B. (C.), 2005 CarswellOnt 4414 (SCJ)).

[20] The concept of fairness has been addressed in this case law since at least 1987. In B (D) v. Children's Aid Society of Durham Region, (1987) 20 C.P.C. (2d) 61 (Ont. Prov. Ct. Fam. Div.), Dunn J. noted that the cases on costs against a society to that point used varying language and he stated that the tests could be summed up as follows; "would the society be perceived by ordinary persons as having acted fairly". He found that there were six criteria for courts to consider when determining whether to award costs against a society. A Society has an obligation to:

1. Conduct a thorough investigation before acting.
2. Consider alternative measures for the protection of children before proceeding to court.
3. Continue its investigation up until the time of a final court determination in a vigorous, professional manner.
4. Treat all clients fairly and equally and with as much dignity as possible.
5. Reassess its position as more information becomes available.
6. Ensure that its workers are skilled in the performance of their roles.

[21] In CAS of Waterloo v. (Regional Municipality) v. Z.B. Justice Katarynych commented on the ordinary person test. She said that:

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 interest 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 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 rancor that might reasonably be animating the allegations;

f. The society has reassessed its position as more information becomes available…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.

[22] The fairness test was confirmed by the Divisional Court in Hastings Children's Aid Society v. J.L., 2012 ONCJ 362.

[23] The court stated that:

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 acting fairly. See: Children's Aid Society of Niagara Region v W.D., (2004) 1 R.F.L. (6th) 86 (Ont Div Ct).

ISSUES BEFORE THE COURT

Withdrawal

Should the court grant the DCAS motion for leave to withdraw the Protection Application?

[24] As this withdrawal was on consent the court needs to determine if a child is still in need of protection. In this matter there never was a protection finding and in her decision after the temporary care hearing Justice Baldock ruled that no supervision terms were required. I find that there are no ongoing protection issues and the Society should have leave to withdraw.

Costs

[25] The real issue in this matter was that of costs.

[26] Mr. Colman sought costs against the DCAS. He framed his arguments into four main areas:

a) DCAS's uncritical reliance upon the TCAS in making decisions

b) DCAS's failure to conduct a thorough investigation

c) DCAS's overreaction to a perceived risk

d) DCAS's erroneous view of the Respondent's alleged lack of co-operation

[27] Mr. Colman sought costs for the entire proceeding including all motion material that he prepared even when the motions were not ultimately argued.

[28] Ms. Torry for DCAS argued that costs were not appropriate as the Society acted in good faith throughout and amended their position once further information came to light.

[29] In the alternative Ms. Torry said that a distinction might be drawn between the Society's potential liability for costs as a result of the decisions leading to the apprehension and its liability for costs once the child was returned to the Respondent's care. She did not admit any liability in the former case but simply noted that litigation decisions were being made by the Society until just prior to the temporary care hearing. From the beginning of the temporary care hearing all of the extensive litigation was driven by the Respondent's desire to build a case against Ms. McMullen and the TCAS. She said that DCAS should not be responsible for those decisions.

[30] I find that it is helpful to use Ms. Torry's breakdown of the litigation into distinct phases. I will consider the facts using Mr. Colman's headings or factors relevant to costs. I find that all of Mr. Colman's factors were based upon events and decisions that occurred prior to the temporary care hearing.

THE EVIDENCE

[31] This matter proceeded throughout on affidavit evidence. I considered the affidavits in the 4 volumes of the Continuing Record in coming to my decision. I also relied upon the Applicant's Factum and Book of Authorities and the Respondent's Costs Brief and separate Authorities Brief.

PRE-TEMPORARY CARE HEARING

Uncritical Reliance upon the TCAS

[32] The evidence that DCAS relied upon prior to apprehending the child is set out in the Information for Warrant to Apprehend a Child. This affidavit was sworn by the DCAS's lead worker Susan Fudge and is found at Vol 1 Tab 5 p. 65 as an exhibit to the Respondent's affidavit for the apprehension hearing on April 23, 2013.

[33] There is no doubt that information from Sherri McMullen and TCAS factored heavily into the DCAS's decision to apprehend the child.

[34] I find that the DCAS did present most of the information that they had obtained in the affidavit that supported the request for a warrant. However, a good deal of that information was supplied by Sherri McMullen. DCAS had been advised by the Respondent that Ms. McMullen had a negative attitude towards her as a result of a confrontation that the two of them had had at a TCAS meeting in November 2012.

[35] One of the key issues is whether DCAS should be entitled to rely upon information provided by another Society dealing with the Respondent or whether the circumstances of the provision of this information should have called for greater scrutiny by DCAS.

[36] DCAS knew that the Respondent was a pediatric nurse who had fostered developmentally delayed children for the TCAS for 17 years. At the time of the call by Ms. McMullen to DCAS on March 7, 2013 the Respondent was still fostering two children. The concerns outlined to DCAS of 8 year old A.D.H. not receiving her much needed speech therapy since 2007, not attending a school and being significantly delayed in her development with no assistance being sought were serious ones.

[37] These concerns would cause a child protection agency to want to investigate, meet with the parent and ensure that all possible services were being accessed to assist the young child.

[38] In this case the Respondent was said to still have a home in Toronto as well as one in Dufferin county into which she was about to move. The Toronto society was still very much involved with her. A simple inquiry would have caused DCAS to learn that it was the Respondent who had resigned from fostering on March 1, 2013. She had not been dismissed as a foster parent as was implied in the TCAS communication to DCAS.

[39] Furthermore that after a meeting at the Respondent's home on February 27 Ms. McMullen from TCAS set up a further meeting for the end of March and it was agreed that the two foster children still there would continue to be fostered by the Respondent until their adoptive placements were ready to take them (a third foster child had just moved to another home in February 2013).

[40] The information provided by Ms. McMullen as disclosed by Ms. Fudge in her affidavit left the overall impression that the Respondent was in crisis. Unsupported references were made to a decline in her mental health, negative comments were made as to her general attitude and demeanour. References were even made as to the foster children presenting as dirty and unkempt.

[41] The other relevant point that should have caused the DCAS to question the objectivity of the referent, Ms. McMullen, was that she made calls to DCAS after her initial referral. It should have been clear from discussions with Ms. McMullen that she was the supervisor of the foster unit not an intake worker or manager with TCAS.

[42] The level of concern raised by Ms. McMullen begged the question. If the risk to the child was so serious why had the Toronto agency done nothing for all this time when the Respondent was in the incredibly responsible position of fostering developmentally delayed children? Why had the concerns only come to a head when the Respondent resigned from the TCAS and moved to Dufferin?

[43] To be fair, TCAS may have had some concerns about the two houses that the Respondent owned for some time. They expressed concern about whether A.D.H. was really living with the Respondent's adult daughter in Dufferin as opposed to the Respondent in Toronto. Nevertheless, the adult daughter was an approved caregiver for developmentally delayed foster children when her mother was not available. The "move" was said to have begun in 2010 when the Dufferin county house was purchased. The TCAS had had a significant amount of time to query the Respondent about her residence plans and any impact that would have on the foster children or on her own two children.

[44] In summary while the concerns reported seemed to be legitimate child protection ones the fact is that Toronto did nothing while the Respondent was in their jurisdiction. That the TCAS, specifically Ms. McMullen, urged the DCAS to apprehend the day after the last two foster children were moved from the Respondent's home after her resignation should have raised some red flags with DCAS. At the very least they could should have queried Ms. McMullen and other individuals employed by TCAS to ascertain why the Respondent was allowed to foster very vulnerable children until the time of the referral to Dufferin and why the Toronto agency had taken no steps to investigate their concerns in Toronto. The child A.D.H. had spent her entire life in the care of the Respondent with apparently no concerns raised about her care until after the November 2012 meeting at TCAS.

[45] In fact at the time of the referral TCAS did take one investigative step. The affidavit of Ms. Fudge does refer to her conversation with Mr. Findlay the intake worker who was sent to the Respondent's Toronto home. Mr. Findlay met with the Respondent and interviewed A.D.H. on March 11, 2013. Ms. Fudge's affidavit reports his stated concerns as to the serious developmental delays the child was experiencing. His notes though stated that A.D.H. was a happy and outgoing child and she described her relationship with her family in very positive terms. Ms. Fudges' affidavit for the warrant did not mention that comment and did not refer to the fact that Mr. Findlay found no child protection concerns and the Toronto file, just opened, was closed the next day.

[46] TCAS had access to all of the information concerning the Respondent's household, her children and the foster children. She had worked with them for 17 years. She met with their worker Mr. Findlay in her home on March 11. She allowed him to interview the child and she provided explanations for all of his questions.

[47] The child was in Toronto. The stated concerns of March 7 and thereafter were not urgent ones. The affidavit for the warrant was based upon an accumulation of information much of it hearsay. When determining whether to take the very intrusive step of apprehending the child the DCAS should have wondered why the TCAS had not removed her fostering responsibilities and conducted their own child protection investigation.

Failure to conduct a thorough investigation

[48] Mr. Colman submitted that the DCAS did not follow the process required of them to conduct a thorough investigation. He listed the duties that the Society had to fulfill as set out by Justice Katarynych in CAS of Waterloo v. (Regional Municipality) v. Z.B.

[49] On March 8 Ms. Fudge attended at the Respondent's home. She described the house as "immaculate" (as opposed to very negative hearsay comments about the state of the Toronto home). The Respondent was observed to be cooperative in meeting with her.

[50] The Respondent advised Ms. Fudge that the child was currently being home-schooled while the Respondent looked for an appropriate school for her. The Respondent identified to the worker the issues between her and the referent Ms. McMullen. Ms. Fudge noted that the Respondent appeared to be "focused calm and appropriate in her responses".

[51] Mr. Colman argued that DCAS failed to be alert to the rancor that might animate an investigation. He noted that Ms. Fudge reported back to Ms. McMullen about the meeting with the Respondent in Dufferin. Ms. Fudge told Ms. McMullen that the child was currently at the Toronto home. Ms. McMullen then asked if DCAS wanted the Toronto agency to apprehend her. I find that this concern by Ms. McMullen about having the child apprehended should have caused DCAS to be concerned about the role Ms. McMullen wanted to take in a Dufferin investigation. It should have caused DCAS to undertake a thorough independent investigation that assessed the information received from TCAS through a critical lens.

[52] The main concern of the DCAS in seeking the warrant to apprehend was that the Respondent was ignoring the obvious developmental needs of the child. It was also effectively stated that she had isolated the child who was not in school, and not in needed speech therapy.

[53] On the evidence as a whole there were reasons for the Society's concern. While the Respondent did initially let Ms. Fudge into her home and did acquiesce in Mr. Findlay seeing the child in Toronto she took other steps that resulted in the DCAS concerns becoming heightened.

[54] DCAS stated that according to their statutory mandate they had to be able to see the child in the home with the Respondent. The Respondent's position was that had cooperated with all questions on March 8, the child had been fully interviewed on March 11 in Toronto, and any further DCAS follow up was intrusive and she did not want to put the child through it.

[55] DCAS asked for consents to speak to third parties regarding health and education. They were not requested until March 20. The Respondent wanted a chance to consult with counsel and she advised the Society that she had signed the consents on March 22. The Society did not pick them up until March 27.

[56] With respect to the concern that the Respondent was not attending to physical and emotional health needs the DCAS affidavit for a warrant failed to mention that the child saw an ophthalmologist and a dentist on March 12.

[57] Ms. McMullen appeared to lead DCAS to believe that the foster children in the Respondent's care made great gains shortly after leaving her care. As there is no issue that all of the children she fostered were developmentally delayed and there is also no issue that the last of the foster children left her home only one day before her call to DCAS, that comment should have alerted DCAS to possible bias by Ms. McMullen.

[58] In the same vein Ms. McMullen told Mr. Findlay who relayed the information to DCAS, that A.D.H. was making gains until age 3 but then had suffered a "complete decline". As the child was 8 at the time of the investigation that comment should have raised issues as to why no steps were taken earlier by TCAS particularly since the Respondent continued to foster many other developmentally delayed children throughout that entire time.

[59] The conclusion to be reached as to the TCAS position based upon comments made by Ms. McMullen seemed to be that the TCAS knew of inadequate, neglectful parenting of extremely vulnerable children but continued to entrust those children to that neglectful parent. That did not make sense and it should have caused DCAS to realize that they needed to do their own independent investigation.

[60] The record shows that DCAS did not speak to the Respondent from the time that they picked up the third party consents on March 27 to the time of the apprehension on April 18. They had a duty to interview the Respondent again prior to making such a decision to apprehend. Had they done so they might have become aware that the child had been registered for Kumon on April 4 and that following the April 1 cancellation of the speech therapy appointment that the Respondent had taken the child for a speech assessment by Ms. Stephanie Barrocco speech pathologist on April 10.

[61] On April 16 Ms. Fudge was advised of the March 12 eye examination by Dr. Allan Somersall and on April 16 the receptionist for Dr. Matthews the child's family doctor advised Ms. Fudge that if the doctor did not have concerns about the child he would not be rushing to call her back (the Respondent had provided two consents and it was the doctor who had not responded to DCAS).

[62] On March 28 Ms. Fudge met with Nancy Mauro of the Alliston Community Christian School where the Respondent had stated she would register the child. She learned that the education plan for the child included tutoring, involvement with other children and full time attendance in September. This information was not confirmed with the Respondent and not disclosed in the affidavit for a warrant.

Society's overreaction to a perceived risk

[63] Much if not all of this history was before Justice Baldock on the temporary care hearing held May 28, 2013. In her oral decision made August 2, 2013 she noted that the precipitating event that led to DCAS's decision to apprehend was the Respondent's cancellation of a speech therapy appointment on April 1 (the Society did not learn of it until April 10 and was not aware of the appointment with Ms. Barrocco that day). The April 1 appointment was legitimately cancelled as the child was ill. It was the failure to immediately re-book the appointment with the same clinic that caused the Society to conclude that the Respondent was neglectful of the child's needs.

[64] Even though the child was in their jurisdiction the telephone call by Ms. McMullen from Toronto on April 16 about the other foster children in the Respondent's care appeared to be critical to the decision. On April 18, 2013 DCAS consulted with TCAS and together they made a decision for DCAS to apprehend the child.

[65] In her oral ruling which was transcribed for this motion Justice Baldock concluded that:

The prevailing protection concern at the time appears to have been the failure on the mother's part to address the child's severe speech impediment in a timely manner and obtain appropriate services. A secondary issue was the child's education, coupled with the worker's perception that the mother was uncooperative…

[66] Justice Baldock then went on to note:

The following day the child was seen at the Sick Kids SCAN unit, in Toronto, found to be healthy, the only issue being that of her speech.

Following the child's return to the mother's home on April 24th, pursuant to Justice Maund's order, the Dufferin agency's worker, Ms. Fudge, followed up with the speech pathologist's referral and a re-assessment by Ms. Cindy Duchon-Pasternak which recommended ongoing weekly therapy for two years. Ms. Morris's notes (Rumina Morris was another DCAS worker involved in the investigation) indicate the decision to apprehend was, in part, made on the basis that the mother's cooperation was somewhat minimal and they had been unable to conduct a safety assessment of the child as the mother declined to allow the child to be interviewed.

While it is not an issue to be determined on this motion I do have some concerns about the decision to apprehend as the concerns of the Agency would not, on the face of it, have seemed to have been so urgent that as to require such an intrusive measure. A protection application perhaps could have been launched but there are other factors which I will refer to shortly.

Alleged Lack of Cooperation by Respondent

[67] Justice Baldock commented further in her oral reasons on the evidence before her (which is essentially the same evidence that I had to review for this costs determination). I agree with almost all of her comments but having had the benefit of submissions more directly linked to the facts preceding the apprehension I find the apprehension itself to be an egregious act. Justice Baldock said:

I have no doubt that the relationship between the mother and the Toronto agency, Ms. McMullen in particular, had an adverse effect both as to her dealings with the Dufferin agency and that agency's perception of the mother. The mother has cooperated with the Dufferin Agency but in a manner which suggests some degree of reluctance and she has been perhaps slow to provide the requested disclosure and I have to say altogether defensive in her dealings with the Agency. This would not really be a surprise to most workers. I doubt that many people welcome a protection agency into their lives and regard it as being intrusive, however her approach, while perhaps understandable, has only served to reinforce the worker's perception of her as being generally uncooperative and difficult to deal with.

I have no doubt that this, together with the move from the Toronto Agency's jurisdiction, the resignation from foster care as well as the fact that the workers have not seen the child in the mother's home, have been a considerable factor which lead to the Agency's initial position.

I find her refusal to allow workers to observe and assess the child in her home to be an unfortunate decision. While the Toronto agency worker found her to be happy and healthy in his meeting on March 11th, the Dufferin workers, on receiving the referral had an obligation to satisfy themselves as to the child's well-being here, in the Dufferin county home. Had they been able to do so, I suspect that there approach might have been somewhat different. I do not find, however that given the information they had at hand their actions could in any way be termed egregious.

[68] Most of Justice Baldock's comments are obiter in that by the time of the temporary care decision the child had been back in the Respondent's home for some time (after only being in care for the 5 days until the apprehension hearing). The only issue before Justice Baldock was whether any terms of temporary supervision should be imposed. She decided that if the Respondent provided up to date signed consents for education and health information that no supervision terms were necessary.

[69] Mr. Colman took some issue with Justice Baldock's characterization of the evidence. He made it clear that he wanted full indemnity costs against the Society and he wanted to ensure that the record laid the foundation for his request.

[70] Ultimately Justice Baldock stated that:

It seems to me that the concerns which have been raised which give rise to the, presumably a claim for costs here, arise really not so much on the motion itself but on the commencement of the application and what went on before.

[71] She then clarified that this meant the apprehension itself. She made no order as to costs, without prejudice to the parties to address that issue at or before trial. Her exact words were:

…I am leaving it open for that particular reason, largely, not so much because of the motion but because of the method of the commencement of the proceeding and I am making no further comment on that. That is going to be for somebody else to decide down the road.

[72] There is then no issue that Justice Baldock's order anticipated that the costs argument would be focused on the apprehension issue. She was clearly not inclined to grant costs to the Respondent for the motion that she had just heard.

The Relevance of the Respondent's Attitude

[73] I agree with Justice Baldock's finding that had the Respondent reacted to the investigation somewhat differently the outcome might have been different. In fact if all of the facts now known had been fully considered then there would not likely even have been a Protection Application much less an apprehension.

[74] I also find that it was ultimately the Society's duty to investigate. Yes the Respondent could have been more forthcoming. She could have arranged for the child to be at the home. She could have explained in much greater detail at the outset her decisions regarding the LAMP speech therapy program that she chose not to continue with in favour of another approach. She could have involved DCAS more in the factors that lead to her decision to home school (with the Toronto school board curriculum) for a period of time while she searched for the right placement for her seriously developmentally delayed daughter. She could have provided DCAS with the names and contact numbers of all professionals that were ever involved with the child and why she had made decisions to stay with some professionals and not continue with others. In fact had she called DCAS shortly after the April 1 cancelled appointment and told them that she had set up a speech therapy appointment with a different specialist the apprehension might not have occurred.

[75] On the other hand the Respondent had 17 years of experience working with a child protection agency. She had an unblemished record. She had made a simple decision to retire from fostering and move to Dufferin county. She had clearly had a confrontation with Ms. McMullen and she was tired of dealing with TCAS. Notwithstanding her views she let DCAS into her home on March 8, and she let TCAS interview the child March 11. She was initially concerned about signing releases but after consultation with her lawyer signed them two days later. She may have been defensive but given her recent history with TCAS that attitude might well have been somewhat justified.

[76] The Respondent may well have thought that her history of working in the child protection system entitled her to some deference with respect to parenting decisions. In fact it should also have caused her to realize that child protection workers are required to investigate all allegations no matter how tenuous they appear to be.

While the Respondent was of the view that Ms. McMullen let her feelings about the Respondent cloud her judgement the opposite was probably also true. But for the conflict between the two of them this matter may have been resolved very quickly.

[77] However even if the Respondent could have used better judgement, to the point where she bears some responsibility in how the investigation developed, DCAS still had an obligation to be completely objective. On reviewing the facts as a whole I am convinced that the views of the TCAS, particularly Ms. McMullen, had an inordinate influence over the DCAS decisions.

The Apprehension decision

[78] The initial report was made by Ms. McMullen on March 7. After that the investigation was done by DCAS as the child was in their jurisdiction. The decision to apprehend was made on April 18 by DCAS after extensive consultation with TCAS that day.

[79] As will be noted below this entire costs argument is very related to the role that the Respondent believes TCAS and Ms. McMullen in particular played in the Society investigation.

[80] TCAS is not a party to this action (though efforts were made to make them one). The only issue before me is whether costs should be assessed against DCAS. It is their judgement that is in question at this point.

[81] I do not find that DCAS are guilty of bad faith. They received a referral and they investigated. They were somewhat frustrated in their investigation by the Respondent not being as forthcoming as she could have been. They did not do everything possible to follow up on all concerns raised by the Respondent regarding TCAS. I find that they were justified in initially giving the concerns reported by another agency significant weight. I also find that the Respondent's long term fostering for TCAS should also have been given significant weight and should have led to some questions being asked about why TCAS had not acted on their reported concerns when they had the opportunity to do so.

[82] I find that fairly early on in the investigation it should have been apparent to DCAS that while there were concerns about the child they either had the information, or they could access the information, that would address those concerns.

[83] The issues here while serious were not urgent. They had releases on March 27 that allowed them to obtain collateral information. A few questions of the Respondent would have elicited the information that the child's physical and educational needs were being addressed. If the DCAS investigation had been carried out much more independently of TCAS it might have progressed in a completely different way.

[84] I want to be very clear that I make no findings as to any alleged improper actions taken by Ms. McMullen or TCAS. To the extent that the Respondent seeks redress against them that will need to occur in another forum.

[85] I am confining my comments to the way that the DCAS proceeded to receive and evaluate the information.

[86] On April 16 2013 Ms. McMullen contacted DCAS and made certain statements regarding the foster children in the Respondent's care. These statements were basically to the effect that the said children improved dramatically within a week of being placed with others. These statements were not independently verified by DCAS and on their face seemed unusual. DCAS knew that the Respondent parented children with serious delays. It would be extremely unlikely that such delays would significantly improve within such a short period of time. At this point there had been a DCAS investigation for over five weeks. It should have seemed unusual for an employee of the TCAS to make an unsolicited call with negative hearsay information just prior to a decision being made by DCAS on what legal steps, if any, they would take.

[87] A warrant was sought and granted. DCAS acted properly in seeking a warrant as there were no exigent circumstances present. There was then some scrutiny of the evidence supporting the warrant. However, the fact that the case was based upon neglect and information that was known, or should have been known regarding the care of the child was not included and the fact that the Justice of the Peace only had the Society's information, meant that the decision to grant the warrant cannot be seen as validating the actions of the Society.

[88] On balance I would conclude at that at the time of the referral there were serious concerns about the child that warranted some investigation. That investigation may not have required an application to court. A voluntary services agreement was never discussed. There was some cooperation from the Respondent (albeit grudgingly given) and there was the ability to follow up with collaterals through the releases provided.

[89] There was no urgency that required an apprehension. The Society had been working with the Respondent to a greater or lesser degree since March 8. While they had not seen the child with the Respondent they had access to many professionals who had seen the child very recently including Mr. Findlay from TCAS. They knew or should have known that the Respondent was accessing services for the child and that the initial information that they had received on the referral was not accurate.

[90] DCAS knew that the child was very vulnerable. They knew that she had lived with the Respondent all of her life (though TCAS had questioned whether more recently she had been cared for by the Respondent's adult daughter).

[91] DCAS issued a Protection Application asking that the child be made a ward of the Society for a period of 6 months and an order that access to the child by the mother be in the discretion of the Society.

[92] The child was apprehended without incident at the home of the Respondent in Dufferin county on April 18, 2013.

The Apprehension hearing

[93] To her credit, and to the credit of her counsel Mr. Colman, the Respondent brought a motion for the return of the child at the apprehension hearing. This is quite unusual. Apprehension hearings are generally used for ensuring that the parent from whom the child has been apprehended has been served and to arrange access pending the next step. If the said parent has been able to retain counsel that quickly a temporary care hearing date may also be set.

[94] In this case Mr. Colman and his staff were able to distill all of the above noted facts and other points into affidavits supporting a motion for the child's return.

[95] To his credit Justice Maund, who had the apprehension come before him on a busy day when he had a criminal law list, was able to review the material and come to the decision that the child's protection did not require her to be in care. He returned the child to the Respondent under relatively modest temporary supervision terms.

[96] It appears from the records of the meeting where the decision was taken that DCAS felt it would take too long to get a supervision order. The Society knew that if they obtained a warrant to apprehend the matter could get before the court in five days and a temporary supervision order could then be obtained. Nevertheless I am unable to conclude on the evidence before me that this was the sole motivation for the apprehension. I note that even after the child's return to her mother the Society continued to seek an order making the child a Society ward until they officially amended their position before the court on May 28.

[97] I find that the Society's decision to apprehend did not reach the threshold of bad faith. Had I concluded the apprehension was undertaken simply to get an earlier court date for temporary supervision terms that would be bad faith.

[98] A party is not entitled to costs against the Society for simple errors in judgment. Errors in judgement by the Society should not be sanctioned by costs for the reasons set out in the above noted case law, that the Society must not be unduly fettered in pursuing their statutory mandate to protect children.

[99] I find the DCAS decision to apprehend fell short of bad faith but was more than an error in judgement. It was a very ill considered use of the Society's powers that cannot be justified. A reasonable person with knowledge of the surrounding facts would find the action taken by DCAS to be far more intrusive than was warranted. DCAS knew or should have known that an apprehension of this child was not required and could not be supported.

[100] Ms. Torry quite properly cautioned me about applying 20/20 hindsight to the evaluation of the Society's decisions. This case is not about hindsight though. It was clear to Justice Maund just after the apprehension that such an intrusive action could not be justified. Almost all of the facts that he had before him were facts that either were known to the Society or should have been discovered during the approximately 6 week period of their investigation.

[101] This is not a matter in which the child was returned after major supports were put into place and serious restrictions placed on the mother's actions. This is a case in which the child was returned simply on the terms that the Respondent cooperate with the Society and provide releases.

[102] The Protection Application sought to make the child a Society ward for six months and access was to be in the discretion of the Society. I find that this was a serious over reach by DCAS. It had the effect of forcing the Respondent to retain legal counsel immediately to take steps to have her child returned. Had she not been able to put organized affidavit material before the court within the 5 day turnaround period it is quite clear from the record that the matter would have been adjourned to May 28 with her child in the Society's care.

Costs for the apprehension hearing

[103] The legal work by Mr. Colman was effective and it achieved the result sought. It was done on very short notice. While the issues were not particularly complex the matter in issue was very important to the Respondent and most particularly to the 8 year old child. Success at the apprehension hearing meant that this vulnerable little girl was able to return to her mother's care more than a month earlier than would have otherwise been the case.

[104] I find that the Respondent is entitled to costs for her counsel's preparation for and attendance at the apprehension hearing.

[105] Mr. Colman prepared a Bill of Costs for the entire proceeding. He set out hourly rates for the individuals who worked on the file. I have reviewed the hourly rates and the work done and I have determined an amount for partial indemnity costs for the work leading up to and including the argument at the apprehension hearing.

[106] Mr. Colman listed his hourly rate at $500.00 per hour. With 35 years at the bar he may well be able to charge that rate to some family law clients. However I find that the hourly rate for representing a modest income client in a child protection matter should not exceed $400.00 per hour for the purposes of a costs determination.

[107] Ms. Gillian Hayes was called to the bar in 2012. She was listed at an hourly rate of $200.00 per hour. Given her experience and the fact that all of the work that she did was reviewed and in many instances changed, by Mr. Colman I would reduce her rate to $150.00 per hour which I note is still significantly more than she would receive for taking full responsibility of a legally aided client's file.

[108] Mr. Colman's daughter Nechama Colman was stated to be an M.A. candidate in "Conflict". She was billed out at $90.00 per hour. A review of the work she did shows it to be the kind of work that would normally be done by an administrative staff person. This work should be subsumed within the hourly rate of one of the two lawyers working on the file.

[109] In general I accepted that Mr. Colman and Ms. Hayes did necessary work for a motion on very short notice. All of the initial work with the client was compressed into this five day period so that the work was for more than the argument of a motion. The work was from the beginning of the client relationship and included absorbing, and setting out in affidavit material, most of the material facts that have been addressed in this decision.

[110] Ms. Hayes did the bulk of the initial work and I accept all of her time dockets with two exceptions. I find that the 12.0 hours on April 22 (in addition to the other allowed time that day) that contained time for revisions for the affidavit and other tasks should be shortened to 8 hours. This is quite arbitrary I know but the overall time spent on that one day on this file seemed excessive. I also do not include the 8.0 hours for arguing the motion on April 23 or the 2.0 hours roundtrip travel. Mr. Colman billed for the same time. I find that Mr. Colman as senior counsel was quite capable of arguing at the apprehension hearing without the assistance of junior counsel.

[111] As for Mr. Colman's billing I reduced his time spent on April 22 from 12.5 hours to 8.5 hours. Much of that time appeared to be for discussions with Ms. Hayes and his daughter and directing their work in the preparation of the documentary material. Once again the deduction is admittedly arbitrary. I allowed the 8 hours to argue the motion as I must assume that Mr. Colman was in the Orangeville court house for that length of time. I deducted the 1 hour preparation time on the day of the motion and the travel time. The Respondent lived in Dufferin county and chose to retain counsel from Toronto. She has the right to do so of course but in exercising my discretion I chose to disallow the travel especially in light of the fact that 8 full hours were awarded for the day and the actual argument of the motion must have been for much less time.

[112] The resulting calculations are as follows:

Ms. Hayes time 17.8 hours at $150.00 per hour = $2,670.00

Mr. Colman's time 16.5 hours at $400.00 per hour = $6,600.00

Total time allowed = $9,270.00

Partial indemnity of 60% of total = $5,562.00

H.S.T. = $723.06

Estimated disbursements applicable to apprehension hearing = $200.00

Total costs of $6,485.06 rounded up to $6,500.00

COSTS BETWEEN APPREHENSION HEARING AND MAY 22, 2013

[113] The child was returned to her mother on April 24, 2013. The Society had releases to speak to all necessary collaterals.

[114] When this matter was to spoken to on May 8, 2013 the DCAS was still seeking an order changing the order of Justice Maund to remove the child from the supervised care of the Respondent.

[115] On that attendance Mr. Colman sought to delay the temporary care hearing to address procedural issues including adding the TCAS as a party to this litigation. Mr. Colman sought to examine out of court the principals in the TCAS investigation and to obtain disclosure from the TCAS. The Honourable Mr. Justice B. Pugsley who addressed that request noted that the Respondent believed that the DCAS was the "driving force" in the litigation and ought to be a fully engaged party.

[116] Justice Pugsley noted that the allegations of animosity between the Toronto supervisor (Ms. McMullen) and the Respondent were fully set out in the argument in the apprehension hearing before Justice Maund. He viewed Justice Maund's decision as one that would "tide the parties over" until a full temporary care and custody hearing could occur which would allow the Society to respond to the Respondent's materials filed before Justice Maund.

[117] Justice Pugsley found that the matter required the certainty of a temporary care and custody order as soon as possible and left the matter on the list to be argued on May 28, 2013.

[118] The Respondent's costs briefs set out the efforts to settle this matter which are relevant in assessing the liability for costs.

[119] On May 22, 2013 Ms. Torry sent to Mr. Colman a letter advising that DCAS was prepared to resolve the temporary care hearing on the basis of a temporary supervision order. The terms of that order were not particularly onerous and in my view formed a reasonable basis to settle the matter. They included cooperation with the Society, access to the child, the release of medical and educational information and a follow-up with a speech therapist.

[120] At this point the DCAS had reconsidered their position in light of all of the evidence as they were required to do.

Collateral issues

[121] Mr. Colman's clear intention, beginning May 8, 2013, if not before, was to use this child protection proceeding to build a case against the TCAS. He wanted to add the TCAS as a party, review all of their documents concerning his client, and examine their workers.

[122] Mr. Colman's response to the DCAS offer to settle was to insist, in a rather high handed manner, that DCAS get TCAS "immediately onside and secure their written consent to the interim settlement".

[123] Mr. Colman's letter attempted to leverage DCAS's good faith effort to resolve their child protection file with a demand that DCAS assist his client in challenging Ms. McMullen's "frankly nefarious, immoral and illegal role in this case". He stated:

If I am going to compromise my client's rights and accede, even on a without prejudice basis, to some sort of supervision, then I want my procedural motion granted now in exchange.

[124] Unfortunately the matter was not resolved and it then proceeded before Justice Baldock on May 28, 2013. Ms. Torry advised the court that the Society now took the position that only a temporary supervision order was required.

[125] As noted above Justice Baldock reserved her decision and released it on August 2, 2013.

[126] In the interim on June 14, 2013 Mr. Colman brought a motion returnable July 3 once again seeking an order that the TCAS be added as a party, for disclosure by DCAS and TCAS and questioning of both DCAS and TCAS workers.

[127] On June 18, 2013 Justice Pugsley, the case management justice, in chambers scheduled the matter "to be spoken to" on July 3 as that date was not a scheduled motion date. He directed that the Respondent's motion be set for a long motions date.

[128] The Respondent finally served her Answer and Plan of Care on June 26, 2013. In it she sought full indemnity costs against DCAS and TCAS.

[129] On July 3 the Respondent's motion for procedural relief was set to be heard on a long motion date of September 23, 2013.

[130] On August 2, 2013 Justice Baldock read her oral decision on the temporary care hearing. She ordered that the child remain in the care of the Respondent without terms of supervision, provided that the Respondent provide the Society with signed releases to enable DCAS to communicate directly with the child's school/educators and such therapists or other professionals as are involved in addressing the child's speech impediment on an ongoing basis.

[131] After the apprehension hearing I find that the Society complied with their duty to reassess the evidence. By May 22 they had determined that a temporary supervision order was all that was required and the above noted offer was made.

[132] I find that the Respondent should have accepted that offer. It is true that Justice Baldock's decision was slightly better for the Respondent in that it required the provision of releases only and not a temporary order.

[133] However for the Respondent this should have been seen as a distinction without a difference. Furthermore the Respondent made no effort made to sign a voluntary services agreement or take other steps to provide consents that would obviate the need for a court order requiring them.

[134] The Respondent's entire focus at that point had turned to using this Dufferin protection file to gather information that could be used in potential civil litigation against Ms. McMullen and/or the TCAS.

[135] Mr. Colman made a point in the material, and in his submissions, of his child protection experience and his development of a strategy for the file. I must assume that he acted on his client's instructions.

[136] There is no doubt that a tremendous amount of legal work went into the drafting of affidavit materials between the time that the child was returned home and the temporary care hearing. In my view a less litigious approach could have been undertaken at this point. It seemed clear that the Respondent had taken the steps necessary to satisfy the Society's initial protection concerns. A meeting between counsel with a list of all services accessed and releases for same or even an exchange of correspondence in this period when the Society was duty bound to reassess their position might well have eliminated the need to get affidavit material from everyone who had anything to do with the child.

[137] The focus should have been on providing the DCAS with the information that they might need to satisfy themselves that no further supervision was required. Instead the focus became looking to prove fault with the TCAS.

[138] I recognize that until the May 22 offer the DCAS position was still that of a 6 month society wardship. This required the Respondent and her counsel to attend court on May 8 when the temporary care hearing was to be spoken to. That date should have been seen as an opportunity to discuss a resolution to the matter that would leave the child in the care of the mother subject to certain terms.

[139] Instead Mr. Colman attempted to have the temporary care hearing adjourned so that the child protection litigation could be widened be adding the TCAS and seeking extensive further disclosure.

[140] I find that the Respondent is entitled to some costs for the period between the return of the child and the offer to settle on May 22, 2013. In this time frame the Respondent was still faced with the Society's motion for a 6 month period of ward ship. However given Justice Maund's April 24 ruling and the fact that the Respondent already had extensive affidavit material before the court there was really no need to prepare more than one updating supplementary affidavit for the upcoming hearing. As noted by Justice Pugsley on May 8, the time between April 24 and the temporary care hearing May 28 was really to be used by the Society to review the Respondent's material and determine how to reply.

[141] As DCAS had not amended its position by the May 8 court date the Respondent and her counsel had to attend. I do not find the Respondent's Bill of Costs helpful in determining the time that should properly have been spent in preparing for that attendance.

[142] I find that it was reasonable for the Respondent to prepare an updating affidavit and as most of the drafting was done by Ms. Hayes I allow 4 hours for that preparation at $150.00 an hour for a total of $600.00 plus $78.00 H.S.T. plus $22.00 in disbursements for $700.00. On a 60% partial indemnity scale I award $420.00.

[143] I accept that Mr. Colman as lead counsel was required to attend May 8 and I allow 2 hours at $400.00 per hour for $800.00 with H.S.T. of $104.00. This amounts to $542.40 on a partial indemnity scale.

[144] The total allowed for the preparation between April 24 to and including May 8 is $962.40 which I round up to $1,000.00.

COSTS AFTER MAY 22, 2013

[145] After that May 22, 2013 offer I find that DCAS acted very reasonably and had no liability for costs.

[146] Mr. Colman and his staff spent a tremendous amount of time in preparing a motion to add the TCAS. That motion was adjourned from July 23 to September 23 to January 7. It was never argued.

[147] The entire focus of the Respondent's position after May 8, if not before, was on adding TCAS as a party and obtaining disclosure from them. The DCAS should not have to bear the costs of that effort. Whether TCAS was added or not it made no difference to the child protection file in Orangeville. By May 22 DCAS had decided that any concerns that they still had regarding the protection of the child could be met with a temporary supervision order.

[148] The legal work that was done after May 22 on this file was out of all proportion to the issues remaining in the Dufferin file. That work may or may not be of assistance to the Respondent if she pursues a civil action against Ms. McMullen or the TCAS.

Costs for the costs motion

[149] The last remaining issue is the costs for the one half day motion on costs.

[150] Both parties prepared a great deal of material for my review. I have Mr. Colman's Bill of Costs for the time he expended in preparing for and arguing this matter. I have no doubt that a significant amount of time was expended by the Society also. They were faced with a cost submission of $113,575.25 plus H.S.T. and $1,705.16 in disbursements.

[151] My final order for costs totals ($6,500.00 plus $1,000.00) $7,500.00. Mr. Colman was not substantially successful on his motion. On the other hand costs were ordered against the Society when they made a no costs submission so that they were not successful either.

[152] I find that there shall be no costs of this motion.

[153] If either party made an offer to settle costs I am prepared to revisit the costs issue if such offers are faxed to the Brampton court where I preside by Monday June 16 at 4:30 p.m.

ORDER

1. The Children's Aid Society of the County of Dufferin shall have leave to withdraw this Protection Application.

2. The Children's Aid Society of the County of Dufferin shall pay to the Respondent E.H. her costs of this Protection Application fixed in the amount of $7,500.00 inclusive of H.S.T. and disbursements.

3. If offers to settle costs were made they may be faxed to the court at Brampton prior to June 16 at 5 p.m.

Released: June 11, 2014

Justice Philip J. Clay