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.
Court Information
ONTARIO COURT OF JUSTICE
Date: August 5, 2015
Court File No.: Toronto CFO-13-10447-01
Between:
CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO, Applicant,
— AND —
M.C. AND K.W., Respondents.
Before: Justice Heather L. Katarynych
Chamber Adjudication: July 31, 2015
Decision on Trial Costs Released: August 5, 2015
Counsel
Ms. Mei Chen — counsel for the applicant society
Ms. Tammy Law — counsel for the respondent (M.C.)
Mr. David Miller — agent for the respondent (K.W.)
Decision
KATARYNYCH, J.:
Introduction
[1] Counsel for mother seeks trial costs against the Toronto Catholic Children's Aid Society in the amount of $21,919.39 ($19,204.50 in lawyer fees and $193.19 in disbursements).
[2] The society seeks an order dismissing that claim, on the basis that the mother has not made out a costs case sufficiently within the law governing costs against a Children's Aid Society.
[3] Although the father had sought a costs order against the society on a full recovery basis in Answer of November 2013, no submissions on trial costs were received from him. I have endorsed his Costs claim as abandoned.
[4] This is the decision on trial costs.
Context
[5] The trial judgment was delivered orally at the close of a six day trial.
[6] It found the children's need of protection lodged within s. 37(2)(b)(i) and (d) of the CFSA, ended the "temporary" foster care that had consumed the entire life of the younger child and all but the first 6 weeks of the older child, and restored the two children to their mother's custody and care under a 12 month court-ordered society supervision on specified conditions, and other orders designed to keep separation between the children and their father.
[7] The father, through his counsel, did not contest the finding. Father is detained on serious criminal charges. Although arrangements could have been made for him to be present for the trial, no such arrangements were sought.
[8] The mother conceded the propriety of the "need of protection" finding in the course of the trial.
[9] A transcript of the oral reasons was provided to all three counsel shortly after the trial as a reference tool for the transition. That was done because in due course that order will come before the court in another jurisdiction as part of the status review process required by the legislation. The mother has her residence in a region adjacent to Toronto served by a different Society.
[10] The fleshing out of the oral reasons promised at the close of trial is incorporated into this decision on trial costs.
The Legal Principles Brought to Bear on the Adjudication
[11] In a nutshell, they are these:
[12] All costs orders are exercises of judicial discretion. See Courts of Justice Act, R.S.O. 1990 c. C-43 as amended, s.131.
[13] That discretion is to be exercised within the framework provided by s. 24 of the Family Law Rules. See O. Reg. 114/99 as amended.
[14] In a child protection case, there is no presumption that the successful party is entitled to a costs order. See FLR 24(3).
[15] That is so because a Children's Aid Society has a statutory responsibility to reach to the court if it has reason to believe that a child is in need of protection and that reach is needed for that child. As the law sees it, a child protection agency should not be hesitant about its statutory responsibility by the prospect of a costs award against it for its efforts. See Children's Aid Society of Ottawa Carleton v. S., 2003 CarswellOnt 898 (Ontario Divisional Court per Justices Then, Plantana and Aston).
[16] That does not mean that Children's Aid Societies are immune from costs orders. It does mean that "any such order must be based on something more than merely the outcome of the case". See Children's Aid Society of Ottawa Carleton v. S., supra, at para 5.
[17] Similarly parents subjected to child protection litigation are generally insulated from costs claims. That is so because, when faced with State intervention in the parenting of their children, they have a right to force the State to prove its case. They are not to be penalized in costs for exercising that right. See Children's Aid Society of Ottawa v. S., supra at para 3.
[18] A costs order can serve as reminder to a child protection agency that its attitude to its work must be kept aligned to the attitude required by the legislation governing the work. See, for example, Children's Aid Society of the Regional Municipality of Waterloo v. Z.B.; 1996 CarswellOnt 4670; and Catholic Children's Aid Society of Toronto v. S.V., [2000] O.J. No. 5866.
[19] In determining costs claims, jurisprudence rooted in domestic cases is not helpful.
[20] Child protection law is not ordinary civil litigation with a sliding standard of proof. Careful and contextual read of the Child and Family Services Act makes that plain. So does the procedural and evidentiary law governing child protection litigation.
[21] Jurisprudence drawn from other child protection cases is helpful only if kept in mind is the reality that costs against a child protection agency is fact-specific decision-making.
[22] The central focus is the fairness of the agency's dealings with the parents and their children, whether at the stage of initial child protection investigation, ongoing assessment of "risk" in the family or delivery of its protection services.
[23] Fair dealing matters in the exercise of child protection power. It is, has been and always will be fundamental duty in child protection work.
[24] Many years ago, the Supreme Court of Canada made that plain, pointing out that the values cast in the Canadian Charter of Rights and Freedoms to contain unwarranted State intrusion overarches the work of child protection agencies. Those agencies, however they name themselves in the community, are arms of the State, servitors of the statute that stipulates the agency's powers, the constraints on its exercise of those powers, and the attitude required for the exercise of its powers. See New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46;.
[25] That "fair dealing" is assessed through the eyes of the ordinary person. The Child and Family Services Act has been governing child protection law in Ontario for more than a quarter century. The ordinary person expects staff of a child protection agency to make visible its understanding of its requirements.
[26] That ordinary person expects the child protection agency to hold its intervention proportionate to the need for intervention.
[27] In that regard, the ordinary person expects a child protection agency to recognize that birth family are preserved for children when that course of action does not undermine the primary objective of the Act to promote the child's best interests, protection and wellbeing, and not preserved for a child when the child cannot be responsibly protected within the family.
[28] That ordinary person expects a child protection agency to pay attention to the quality of information flowing into the evaluation of "risk"; - that both its staff and its records convey accurate information about its clients.
[29] The ordinary person looks to staff to ensure that a family is not misrepresented, that the decision-making for the child is not pock-marked with exaggerations, speculations, guesses, leaps into assumptions, and other trash.
[30] The ordinary person expects a child protection agency to reach out to parents believed to have caused or contributed to a child's need for protective intervention, to obtain their perspective on the alleged risk of harm to the child, to carefully consider that perspective in the context of the whole of the investigatory information.
[31] The ordinary person expects "due diligence" check by the child protection agency on information flowing in, and mindfulness that "allegation" is not a synonym for "proven fact".
[32] That ordinary person expects a child protection agency to provide ongoing full and frank disclosure of its investigation and decision-making and in a timely manner so that a parent has fair opportunity to make response.
[33] The ordinary person expects child protection agency staff to appreciate the imbalance of power between the agency and a child's family and to make visible the society's interest in having the parent "at the table" and part of the problem-solving needed for the child.
[34] The ordinary person expects a child protection agency to guard against litigation drift, to recognize that a child's family relationships are withered by drift, and that the agency's inertia is easily read as disinterest in the family and quite deliberate "timing" of a child to a permanent planning outside the family.
[35] The ordinary person expects all that, knowing that fair decision-making is not accomplished by the choreographing of time, nor by slap-dash leaps about parents or their children or their circumstances or their abilities.
[36] So it is that the ordinary person has hovered, drone-like, over this adjudication.
On the Society's Conduct in This Case
[37] The jurisprudence submitted to guide thoughts about the society's conduct in this case was not particularly helpful.
[38] This is not a Costs case rooted in a society's mismanagement of investigation in the context of high conflict domestic litigation that has veered into the child protection path by a warring parent's complaint that the other is "risk" to the child. See, for example, B(D.) v. Children's Aid Society of Durham Region, 1987 CarswellOnt 459 per Dunn J. and the trail of cases that have similar scenario.
[39] It is also not a case where a society's dip into "unfair dealing" was nipped in the bud, through either the society's own internal vigilance or through judicial case management conferencing. See C.C.A.S. Toronto v. S.V.
[40] This is essentially a case in which two children were held in "temporary" foster care long past the time reasonably needed for that foster care, and in the case of the older child, in frank disregard of the statutory maximum for temporary foster care for a child under age 6.
[41] But for the rudimentary nurturing that is available through society based access, the younger child had missed out on his mother's parenting for the whole of his life. His older sister, closing in on her 2nd birthday when the trial judgment was rendered, had lost her mother's parenting for all but the first few weeks of her life.
[42] The ordinary person peering in on that scene, with the statute in hand, would have a problem with that unfolding of this litigation.
[43] That ordinary person would also be mindful that hindsight is not the proper lens for a costs adjudication.
[44] So it is that the ordinary person would hone in on what was in plain sight while these two young children drifted in litigation.
[45] With that as backdrop, these are the "costs relevant" findings on the trial record.
On Attitude to the Mother
[46] In sum, and on what the society had available to it in investigatory information at various times throughout its interaction with these parents, the society did not "misread" the case, as submitted by mother's counsel, and thereby visit the unfair dealing addressed by costs jurisprudence.
[47] On the whole of the evidence, and essentially conceded by the society at trial, it was the risk presented by this father that propelled the society's decision to apprehend both children born to these parents.
[48] There was no "unfairness" in the society's lodging of primary risk to these children in their father's criminality.
[49] His is a history of serious criminality presenting a substantial risk of harm to a vulnerable child. It is a history of sexual abuse and physical violence towards others. He has been, is and will continue to be a serious risk to the safety of these two children until such time as he has shown ability and motivation to throw off this dysfunctional behaviour and lead a law abiding life.
[50] What was unfolding in the first few weeks of the first child's life was formation of "family", in circumstances where father, by court order, was not permitted have contact with children except in the supervision of an adult approved by his probation and parole supervisor. The mother herself had been doing the supervision. On her own evidence, she had not received the necessary approval from father's probation/parole officer for that role. She rested instead in her expectation that the officer was likely inclined to give it to her, and that approval would be forthcoming.
[51] There was no "unfairness" in the society's identification of the risk of harm posed by the mother.
[52] By her own involvement in the formation of family with this father, she was putting their newborn at unacceptable risk of harm, and actually fuelling the father's own breach of the "no unsupervised contact with children" order. Her belief that she would be approved by the probation/parole officers monitoring father's rehabilitation was not enough, and it is reasonable to expect her to know that. Her desire to be given that responsibility was known to the probation/parole workers, and they were seeing, deservedly or not, a woman who was unlikely to be able to effectively carry out the required "supervision" because she appeared so subservient to this man.
[53] On the little that the society knew about this mother at the time, she appeared bent on having this man in her life and in the life of her child, despite his criminal past and the nature and extent of his offending. That presentation of self attracts precisely the "need of protection" grounds advanced by the society in both its initial and its amended protection applications.
[54] On what the society knew about each parent at the time, there was no unfair dealing in the society's expectation that the mother end her relationship with this man if she was to have the children in her care and parenting.
[55] In the end, on what the society knew about each parent at the time, there was also no unfair dealing in the Society's speed-dial from the six month wardship claim in its initial protection application for the firstborn child to Crown wardship planning for both children.
[56] What the child protection agency had in the father was frank depravity. What the child protection agency had in the mother was ever growing mystery about her desire for this man in her life and the life of their children. The picture was a woman either unable or unwilling to grasp the risks inherent in that desire for relationship.
[57] That picture came into even sharper focus because of the chasm that developed between the mother and the social worker responsible for management of the case.
[58] Although she tried, the society's "family services" social worker was not able to form sufficient engagement with the mother to attract the mother's trust.
[59] Since mother was engaging with society staff involved in the foster care of her children, and the foster parents themselves, and attending plan of care meetings, it appeared that her distancing of herself from the family services worker responsible for working through the need of protection concerns with her, was mother's choice. The mother's consistent response was direction to the social worker to speak to mother's lawyer.
[60] The family services worker did not pursue that avenue of access to the mother, choosing instead to wait until the mother approached her.
[61] Mother never did. It was now mother's belief that the social worker was "writing her off". Unknown to the social worker, the mother was waiting for the social worker to show more interest in her.
[62] There was no "family service" happening because, from the lens of the society, neither parent was available for it.
[63] Absent mother's input into the protection work, her apparent loyalty to the father kept alive the society's initial concern that for reasons unfathomable to the society, she was blind to the risk of harm embedded in his dysfunction.
[64] It was not that the message to the mother had been muffled. The society had been blunt. She would not be a planning option for either child unless and until she could show to the society that she had ended her relationship with the father. That message sounded early in the society's intervention, and in even more pronounced tone when she was served with the society's amended protection application seeking Crown wardship to free her children for adoption.
[65] From the society's read of its statutory duty to these children, restoration of the children to mother required the father to be kept out of the parenting.
[66] That was also to be the trial judgment. Mother had to make a choice.
[67] Instead, mother had made herself a silo. Not much gets accomplished in child protection work from inside a silo.
[68] There was considerable inner turmoil within that silo.
[69] For mother, an ending of relationship with this father was not an easy toss, - for a reason that had nothing to do with her love for her children. This mother needed help to do what was demanded of her.
[70] How much this mother needed help to meet the society's demand was not apparent at the time and would not be revealed to the society until mother's testimony in the trial.
[71] Had the mother been prepared to tell the society what she ultimately told the court at trial, the society investigators would have had in hand, as backdrop, the backstory.
[72] She had met this man a number of years ago through a co-worker.
[73] He had recently been released from federal prison and was living in a half-way house.
[74] Friendship developed. He told her about his criminal past and what he had learned and done over the course of his imprisonment to rehabilitate himself. She learned from him that, in addition to programming specifically targeting his deviant behaviour, he had taken the benefit of pastoral ministry made available to him as part of prison life. He was now on parole and committed to a law abiding and God-fearing life.
[75] She believed him. As I understood her evidence, the pastor of her church community had been part of that pastoral outreach to the prison.
[76] Friendship developed. He had set himself into income earning through construction work. She helped him with bookkeeping. Relationship developed. Deepening of relationship led to marriage. She subsequently divorced him, not because of any sin that he had committed towards her, but because of sin she believed that she had committed against him.
[77] Over the course of time, they reunited in a common law relationship. They involved themselves in a church community. He played an active role in the preaching of the church about redemption, using his own experience as example.
[78] This mother is herself a person of faith.
[79] She saw qualities in him that were quite distinct from his past criminal lifestyle. She described him as an articulate and intelligent man, an extrovert to her introverted personality. Whatever the criminality in his interactions with others in the past, and factoring in the sorts of "minor arguments" (as she described their sorting through of each other's points of view on things) and his tendency at times to want her to see things his way, her own overall experience of him had been positive.
[80] Specifically, he had nothing in their time together that signalled risk to her safety or safety to their infant daughter.
[81] She was aware of his criminal history because he himself had told her about it shortly after they met. It had alarmed her sufficiently that she kept a close watch on the father-child interaction and never left the child alone with him.
[82] She believed that he had changed his life. She saw goodness in him. In her thinking, his past was not his present and would not likely be his future. She could be mindful of his criminal past. Unlike the child protection agency, she could not define his worth by it alone.
[83] That "seeing more" in him than his past criminality was rooted in beliefs that lie deep within her, beliefs seeded in her childhood within the nurturing of her own family. They are beliefs in which she wants to raise her children.
[84] These beliefs include the doctrine that marriage is a "for better or for worse…till death do us part" sort of commitment, doctrine that a wife honours and obeys her husband, doctrine about mercy and forgiveness, doctrine that children are grown in the love of both parents. As I understood her evidence, to cast her husband aside is a form of sin. She was also struggling with this father's desire to be a continuing part of her life and the life of their children.
[85] It is tenet of her faith that broken people are not discarded as vile dung. Plain was this mother's difficulty processing a response to her partner's criminality that, in rejecting the criminality, does not reject the person caught up in it.
[86] In short, this was not a woman who had embraced this paroled convict with intent to be part of a criminal or otherwise irresponsible lifestyle. She had believed in this man's rehabilitation and was cheering him forward.
[87] So it is that when he was charged with further crime, she stood surety for him on conditions stipulated by the court in the bail hearing, presuming him to be innocent of the charges unless and until otherwise found by the court.
[88] In essence, this child protection agency would have learned that the mother could not figure out an exit from relationship with this father that was acceptable, not just to the Children's Aid Society but also acceptable to her God.
[89] Had mother come out of her silo earlier, the society social worker would also have learned that this mother, now in her mid-thirties, is an educated woman, also schooled in social work, employed in the care of vulnerable people, a person with no criminal or child protection record.
[90] These children are her only children.
[91] It would have helped these children considerably, had the society known all this before the mother's testimony in the trial.
[92] Her inner turmoil would not have altered the stance that she had to end the relationship.
[93] It would, however, have opened opportunity to try to help her do it. For example, it might have opened discussion with this mother's pastor. It might have provided opportunity to meet others similarly situated and working through the same sort of turmoil. It might have tapped into those who already had a measure of this mother's trust, including the churchwoman chosen by the parent to be godmother to their daughter. Reality is that there were those who could - and likely would - have stood ready to walk the hard road with this mother, - including the society social worker herself, - had this mother been able to speak about her turmoil.
[94] The society did have hints of a progression in the mother's thinking about relationship. In both the initial and the amended application, as a "brief" statement of fact upon which the society was relying, is the assertion that mother "initially stated that she planned to reunite with Mr. W., once he is released from custody, although she is now saying her plan is to live on her own."
[95] That said, the society did not catch and take hold of the shift. The words were there. The walk was not.
[96] On her evidence, she felt "written off" after the society announced to her, a mere month after its apprehension of then three week old Olivia, that it was seeking Crown wardship and adoption for her. When the society removed Alexander from her shortly after his birth, dismissing as insufficient, the safety planning desired by both parents, this society intensified the message that it had "written her off".
[97] In actual fact, this mother was well on the road to being "written off" as an option for the children's parenting, essentially because of her distancing of herself from the very society staff who needed her to come closer if she was to be a meaningful part of decision-making for the children.
[98] The ordinary person would point out that, within the child protection scheme laid out in the Child and Family Services Act, parents do get "written off" as a parenting option if they are not sufficiently available for the work that needs to be done to pave the way for planning desired by the parent.
[99] This mother acknowledged in her testimony that her standard response, when overture was made to her, was to tell the social worker to speak to her lawyer.
[100] Although not tuned into it at the time, she realized, in hindsight, that in distancing herself from opportunity to forge relationship with the society worker, she had sent the message that she wanted to be left alone. The social worker left her alone.
[101] The mother wanted a filter for her voice. Advocacy for a parent must take care in that regard. Filtered communication can lead to a shrouding of the parent. When the allegation is risk to a child, responsible and child-centred investigation and evaluation of a parent's abilities and vulnerabilities cannot be obtained through a shroud. Accurate pulse on "risk" and proportionate response to it requires direct dialogue and interaction between parent and child protection agency.
[102] Did the society investigation of this mother fall markedly short of what was needed for properly informed investigation?
[103] Yes. Disconnect between a parent and Children's Aid Society does that. As a matter of common sense, a society cannot display its "fair dealing" if the very person entitled to that dealing, makes herself unavailable for the display.
[104] It is in this regard that child protection litigation differs from ordinary civil litigation. More is expected than lawyer speak, and the client needs to understand that reality. Within the scheme of this statute, it is the parent who has pride of place at the problem-solving table, not the parent's lawyer.
[105] Good lawyering keeps pivotal watch on "fair dealing" in a case without usurping that place at the problem-solving table.
[106] The society lawyer has always had a particularly high duty to keep watch on the agency's attention to "fair dealing", and is expected by the Charter arching over the litigation, to take prompt and effective action within the agency itself to correct any slide into unfairness.
[107] Could the child protection agency have done more to try to engage this mother?
[108] Yes.
[109] There were early indicators that "engagement" might be a problem for this mother.
[110] In her trial evidence, the society's intake worker, in expressing her own opinion about this mother's apparent disconnect from the risk presented by father, pointed to the mother's "flat affect" in her own attempts to engage the mother, to the mother's "calm", her failure to voice "anger" about the father in circumstances where others were enraged by his behaviour.
[111] Had she been able to get to know her better, she would have discovered that this mother is introverted by nature, even meek, both on her own evidence and on plain observation of her approach to her life.
[112] This intervention was this mother's first encounter with a Children's Aid Society and its powers.
[113] She was no "seasoned" child welfare client, familiar with the society's workings or expectations.
[114] The ordinary person would remind the child protection agency that this mother and the society's staff were never on an "equal footing" in this child protection landscape. Problems in engagement are not uncommon in child protection work. Imbalance in power does that.
[115] Oft used response to "engagement problem" is change of society family services worker.
[116] The ordinary person would frown at suggestion that the mother herself, and certainly with the assistance of her lawyer, could have asked for a change in worker.
[117] Astute child protection workers do not wait for a reticent parent to ask for a change of worker. They know that a fearful parent may not initiate the process, lest the quest fail and the parent's reach worsens an unready difficult interaction.
[118] The ordinary person would expect the society itself to take the initiative; - to find solution for the "engagement problem" from within its own ranks in a timely fashion, using its own resources.
[119] Astute child protection workers do that because they recognize that there may be a better "fit" with someone else. They do it because "fresh starts" are often the best way to make visible the agency's interest in trying to reduce anxiety about the interaction. They do it with grace. It is an act of kindness.
[120] They do it because they have an eye on the passage of time, and the need for problem-solving without undue delay. It is understanding, not just about the power imbalance in this litigation, but also understanding about the impact of clock ticking.
[121] Problems in engagement cannot be left in the "no action" zone without serious "fair dealing" impact on both the parents and their children.
[122] "Fair dealing" duty includes movement of litigation forward for adjudication of the merits of the agency's claims when difficulty in engagement is paralysing the progress of the case.
[123] The ordinary person, statute in hand, would point out that the passage of time in foster care with insufficient child-parent access, withers relationship between a child and a parent and leaves strong impression that the child protection agency is trying, by manipulation of access, to gain a Crown wardship order through choreography.
On Attitude to the Father
In Relation to his "Safety Plan"
[124] As early as November 2013, the society had an alternative to society foster care for Olivia.
[125] The father had answered the society's protection applications on November 12, 2013, effectively acknowledging the risk in him that was being alleged by the society, and proposing a plan that had the child's godmother waiting in the wings as an alternative "safety plan" to the society's temporary foster care.
[126] That plan also contemplated the longer term parenting of the child; - either a court-ordered society supervision under the Act or the s.57.1 custody order permitted by the CFSA, with a "specified" supervised access between himself and the infant.
[127] He set out in his Answer why he felt that this plan would be in this child's best interests. This godmother was prepared to look after the child permanently if needed to do that. She was an excellent parent, in his estimation, had raised her own now almost adult daughter and was raising her 8 year old grandnephew. She would cooperate with the society and any court order and "will protect the daughter with respect to any child protection concerns in the case".
[128] The mother, in her response, supported this plan. She added that she herself felt very close to this godmother and pointed out that if the godmother were allowed to adopt or take custody of Olivia, she felt confident that her own access and contact to her daughter would be preserved.
[129] The society rejected the plan. As I understood it the whole of the evidence relevant to that rejection, the plan did not meet the criteria stipulated for kinship planning by both the agency and Ministry policy and regulations.
[130] What had been fed into that "kin" assessment as fodder for evaluation of the plan did not emerge clearly, largely because the attitude of those doing the feeding got in the way.
[131] This godmother was actually given quite short shrift by both the social worker who had done the initial information gathering for the kin department investigation, and the social worker who had been assigned to do the assessment.
[132] The godmother was not good enough in part because in the eyes of these social workers, she did not know enough about the father's criminality. Left untethered was what information had been provided to her, not just from the father but from the society itself, if it wanted her to be fully informed about the risk presented by the father. The support of both parents for the plan could be reasonably expected to produce the necessary consents to information-sharing. As a matter of common sense, it would be refusal to permit the information flow that would call into question, the integrity of the plan.
[133] The godmother was not good enough in part because she did not give the desired answers to the "what if" questions posed in relation to what she would do if the father turned up at the church nursery and was found playing with the children. The godmother's response to that "what if" focused on the inaccessibility that the father or anyone else from the community had to the church nursery. When she was pressed on the "what if" part, she responded that she would sit down and join in the play.
[134] Although the social worker found that response unpalatable, it actually made both common and child sense. This godmother, herself a woman of faith deeply involved in the same church community as the parents, would not react with panic or hysteria or deliberate fomenting of anxiety, either in the presence of the children or otherwise. She would not treat the man as a monstrosity in her sight.
[135] She would instead deal with the "eventuality" with supervision of the play. That approach, in essence, was consistent with the terms of the criminal court's order respecting father's contact with children. It was not contact that was forbidden. What was forbidden was unsupervised contact by a responsible adult approved for the task. It was this court's trial order that closed the contact altogether, for reasons given, until father positions himself for a supervised contact with his children.
[136] The godmother was not "good enough" in part because the kin worker leapt to conclusion that this godmother had "allowed" the young child in her care to be treated badly by his mother. Had there been any real listening to the godmother on that point, the social worker would have learned that this godmother had this child in her parenting to shield him from his mother's harshness, that she was alert to untoward behaviour when the child's mother visited the godmother's home, and that the godmother intervened when it was called for. Her niece was family and her child in this godmother's care under court order, - frank testament that this godmother had been found worthy of parenting responsibility by a court in another jurisdiction whose task is also to centre decision-making in the child's best interests.
[137] This woman, older in both years and life experience than this mother, and herself a single parent, would gladly have taken up the task of keeping both the firstborn child and in due course, the younger child, safe from harm, on whatever conditions might be asked of her, whether by the society itself or the court.
[138] She had the ability to do that. She had the trust of both parents who themselves had identified fine qualities in her management of her own life and times. Certain physical health problems that had qualified her for provincial disability funding were not insurmountable impediment to her sense of responsibility for the children already in her care.
[139] She had a church community in the background as a key support for her parenting endeavours.
[140] She could reasonably be expected to obey court-ordered conditions placed on her parenting.
[141] The ordinary person would have noted her preparedness to involve the child's mother in their parenting, unless otherwise directed by the court, to give nurture to the child and mother relationship, and to be visible and practical support for the mother as she set herself on the task of closing her domestic relationship with the children's father.
[142] The ordinary person would have found her quite worthy of the child protection agency's respect.
[143] The society could not see the merits within the godmother's parenting of this child essentially because its lens was too narrow to encompass the merits. The ordinary person might also detect a whiff rising from the society's evidence that this particular plan, because presented by this father, must somehow be contaminated.
[144] Certainly the godmother was left with the conclusion that she had been given short shrift.
[145] She emerged from the interaction with the kinship investigation worker quite shaken by the dismissive attitude taken towards her and her parenting.
[146] In actual fact, both the godmother and her plan were more than adequate for these children while the parents and society wended their way through the court process.
[147] A less blinkered set of eyes would have seen that and acted on it.
[148] On the whole of the trial evidence relevant to the investigation, the society's rejection of that plan appeared to have more to do with the society's desire for its Crown wardship for these children than with any objectively discernible and fairly explored "deficit" in the godmother.
[149] Under this legislation, community based plans for children are prized, and particularly so as a means of providing a more "normal" setting and frequency for child-parent access than can be accomplished for children in foster care.
[150] Both procedural and substantive law in these matters provide a judicial set of eyes to determine the merits of a community based plan that has been rejected by the society. It is called motion to vary temporary care. See CFSA s.51(6).
[151] That the society's "temporary" foster care was still the interim order at the opening of trial suggested that no such motion had gone forward at the behest of parents' counsel, or alternatively, that it had been tried and not been successful, bound as the motions judge is to determinations made on the face of the record.
In Relation to the Father as Person and Parent
[152] The trial evidence shed no meaningful light on what the society had done in outreach to the father to have his input into safety planning.
[153] Although clearly interested in the outcome, this father was not present at this trial. As I understood his counsel on that point, father felt that it would be better if he were not there. The reason for that feeling was not given, nor did the trial court ask for reason.
[154] Unknown on the trial record is what distance he himself created between himself and the society.
[155] Some distance was created for him. At the time of the trial, "present risk" to the children from him was contained, quite literally. He was detained awaiting trial on serious charges.
[156] The society's investigation could nonetheless have benefited from his input.
[157] It is part and parcel of getting a pulse from the man directly on how he views his prospects of rehabilitation; in short, whether he sees worth in himself sufficient to continue to make the effort.
[158] Within the scheme of the Child and Family Services Act, there can be separation of a parent from a child without a separation of a parent from the child protection agency.
[159] Within the scheme of this statute, no parent is deemed unworthy of outreach.
[160] It is plain on the trial record that this father, before concerning himself with the parenting of these children, has needed and continues to need to gather into his own rehabilitation efforts, those services specifically equipped to deal with the physical and sexual risk that is alive in his functioning. Not lost in that regard is the risk of his manipulation of the emotions of mother and the children if his dysfunction is not remedied.
[161] Lingering in the information about the father, as I understood it from the trial evidence, was indication that he himself had gone through a childhood in need of protection from others.
[162] His sense of self on a "go forward" basis is relevant information to a fair and properly informed assessment of "go forward" risk. It would help, for example, to know whether he himself feels a need to "go back" a bit to sort out what happened to him, before he can see and act on the "go forward" tasks.
[163] It is plain, on the evidence of his probation and parole workers, that he presented to them as a man who wanted to control as much as he could in his rehabilitation. The ordinary man would not find that surprising. Need to control is what sounds the limits on a person's ability to trust what others have in mind.
[164] He sounded his caring about the wellbeing of these children in his safety planning proposal for them.
[165] That he did not identify the mother herself as safety plan for the children did not invite the inference suggested by the society in its submissions that the father himself had no confidence in her.
[166] It was not unreasonable for these two parents in the circumstances bearing down on them at the time, and trying to create safety planning, to believe that if the children were living elsewhere, with only supervised access to him, the domestic relationship itself and some vestige of family life might be preserved for both them and the children.
[167] Having his input into safety planning was a dimension that could have provided input on the following points relevant to ongoing calibration of risk:
The extent to which he could/would cooperate in the severing of his domestic relationship with the mother, if the price of not doing that was loss of their children to both of them; in short, partnering in the problem solving;
What he had in planning in clinical interventions to reduce the level of risk in his dysfunction, keeping in mind his unavailability over the last while and presently for anything outside the detention system itself;
From his perspective, what would help him navigate the road to rehabilitation; whether opportunity to "touch base" with the society on his progress or invitation for dialogue between those providing services to him and the society.
[168] What this man sees on the short and longer term horizon for himself, for these children and for their mother is relevant to a fairly informed ongoing calibration of risk.
[169] Whatever future contact might be established between the children and their father in a supervised access fashion depends on what father himself achieves in success in fixing his broken and quite dangerous self.
[170] The ordinary person would say that snippets of information from conversation with probation workers that concentrated essentially on the probation officer's identification of "controlling" features in him and the mother's seeming subservience to him do not replace the first hand "take" that can be achieved in direct dialogue with a parent at the heart of the "risk" assessment.
[171] The ordinary person would point out the reality that not every tale told about a person about another is truthfully captured or truthfully disseminated, and that the "take" of his probation workers on him was worthy of discussion with him directly.
[172] The ordinary person, schooled in life's lessons, would say that simple human kindness can keep alive motivation for a parent to be what that parent needs to become.
[173] These two children have only one father. What he becomes over time impacts on them. That he is kept out of sight at this time in their life does not rule out a time in the future in which he can be in their sight.
Specific to Confusion about Father's Court Orders and Mother's Aiding in Breach
[174] I took into account the submissions about the society's fragility in its understanding of criminal law.
[175] It was plain that that the society staff in this case had no real understanding of a surety bail, and indeed, no understanding of the difference between a bail order and a probation order.
[176] There is no crime in this mother's decision to stand surety for this father. "Standing surety" for a person does not implicate the proposed surety in whatever criminal charges required a surety bail. In terms of "surety" status, the fairly informed picture is a law abiding woman with no criminal record, no criminal charges, no criminal investigation in her own life and times, quite ordinarily committing herself to obedience to conditions dictated by the criminal court. Bail release is testament to the court's satisfaction that an accused person is properly entitled to release into the community.
[177] It is reasonable to expect society counsel to take hold of ignorance problems and shore up the education of staff exhibiting the fragility.
[178] No child protection agency can afford to display ignorance about aspects of criminal law that dip into child protection work when criminal proceedings or orders are alive in a case.
[179] Much of the confusion in this case on this point appeared to flow from failure of the society staff in this case to inform themselves from the orders themselves. Fair dealing in gaining information about conditions imposed on a parent by the criminal court is not achieved by snippets of information conveyed by others. It is having in hand a copy of the order itself.
[180] The ordinary person would expect a child protection agency, managing a child protection case in circumstances where criminal prosecution of a parent is backdrop, to have any criminal order prominently displayed and considered in the society's own decision-making, lest the society itself inadvertently put the parent in a position of breach.
On the "Unfair Dealing" Embedded in Misrepresentation
[181] There was one aspect of this case where the society slipped into "unfair dealing" without any contribution of either parent to the slide.
[182] It is the sort of unfair dealing that attracts the law on costs against a child protection agency.
[183] Context is the society's duty in relation to proper calibration of risk to a child.
[184] Regulatory developments over time now require Children's Aid Societies to make visible their ongoing assessment of a family's needs by feeding entries into certain computerized documents to help calibrate risk accurately and fairly, taking onto account both the parent's strengths and weaknesses. See Ontario Family and Child Strength and Needs Assessment (Ontario Child Protection Tools Manual Required Tools).
[185] In this case, the society injected information into its evaluation of risk documents that the injector knew to be unsubstantiated by any factual basis for the inclusion.
[186] The injector provided context for her actions. Driven by lack of information from the mother about herself, and kept at bay by the mother, this family services worker resorted to "guessing" about "risk" factors that "might" be alive in the mother's life. She chose for her guesses, "risks" of alcohol and drug abuse and mental illness. She inserted those "risks" in the assessment documents of 02/08/2013, 02/07/2014; 15/01/2015.
[187] There was not a stitch of evidence of alcohol or drug abuse by this mother in this case.
[188] There was not a stitch of evidence of mental illness.
[189] I also noted that in the document of 15/01/2015, this same social worker inserted as a "risk" the paucity of the mother's social support system. That entry was made even though the social worker knew that the godmother of the older child was regularly accompanying the mother in her visiting with the children. It was also readily ascertainable by the beginning of 2015 that mother had a church community.
[190] The only "risk factor" that ever merited a tick box on these evaluation of risk computer tracking documents was the one reserved for a parent's allegiance to a partner who presents risk of harm to a child.
[191] The society itself acknowledged at trial that the mother, throughout the whole of child-parent access parcelled out to her over the course of the litigation, had displayed fine parenting ability.
[192] Polluting that "take" on the mother by imaginings about potential alcohol and drug abuse issues and mental illness left sitting in its records is serious maligning.
[193] In cross-examination, the injector admitted the injection of unsubstantiated risk information into the documents used to intelligently and carefully and truthfully calibrate risk.
[194] She admitted in cross-examination that she did not indicate anywhere in her computer inputting that any of her entries were "guesses" and warns a hapless reader that there was no factual basis for them.
[195] On plain read of the risk assessment documents now in evidence in the trial, these "guesses" were carried forward from the initial document into succeeding "risk assessment" documents.
[196] The end result was a serious misrepresentation of the mother, and a memorializing of that distorted picture in the society's records.
[197] The injector seemed oblivious to the reality that false information sitting in a child protection file about a parent is serious slide into unfairness. That reaction was concerning. The ordinary person calls that sort of conduct a smearing of a parent.
[198] Child protection agencies are expected to steer clear of smearing. A child protection agency is not permitted to manipulate the calibration of risk to a child by loading the inventory with information that is untrue about that parent. Keeping the level of protective intervention proportionate to the need for it is not an act of choreography.
[199] That conduct is condemned because others within the society's ranks reading that information, will be misled. They will wrongly assume it to be substantiated and draw conclusions about the parent that are wholly undeserved.
[200] Sound decision-making, whether within the society itself or by the court, depends on the decision-maker not being misled.
[201] That the false information sat undisturbed through the trial and until brought to light by the mother's counsel was particularly disturbing. It suggested that the society's own supervisory checks and balances, including the vigilance of its lawyers, had not identified the wrong and purged the record of the smearing.
[202] At the close of trial that smearing sat in the society's record-keeping. The ordinary person would have a problem with that. The ordinary person would, in fact, wonder what else in that social worker's information to others, including the court itself, was resting in "guesses" and imaginings.
[203] The ordinary person appreciates that in any endeavour that depends for its outcome on the nature and quality of human interaction, mistakes get made from time to time.
[204] That ordinary person would warn that it is never enough in child protection work to rest in a slough off kind of stance that "mistakes happen", pointing out that more is expected of servitors of this statute. If there is to be fair dealing, prompt correction of mistakes matter. If there is misrepresentation of a parent in the society's record, fair dealing requires a cleansing.
[205] In that regard, the court had directed the society at the close of trial to re-do the risk assessments to obtain an accurate "take" on the risk, and to take the steps needed to ensure that the falsified documents were purged from the society's record of this mother.
[206] Unknown at the time of this decision is whether anything was ever done in that regard.
Decision
[207] Although there are lessons to be learned from this case that need not be accompanied by costs sanctions, this maligning of this mother is in a different league.
[208] It was a wholly uncalled for ballooning of risk.
[209] Costs are fixed against the Catholic Children's Aid Society of Toronto in the amount of $5,000.
[210] Those costs are to be paid forthwith to counsel for the mother in trust.
[211] The Direction to the society to purge its record of this false information is reiterated.
[212] The mother's costs claim is otherwise dismissed.
[213] An order will issue accordingly.
[214] This decision is to be released to counsel today by fax transmission and the original filed in the Endorsement record.
Released: August 5, 2015
Signed: Heather L. Katarynych
Trial Judge