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 45(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: September 22, 2015

Court File No.: Belleville, Ontario 322/10

Between:

Highland Shores Children's Aid Society, Applicant,

— AND —

A.M., C.L., M.U., Respondents.

Before: Justice E. Deluzio

Ruling on Costs released: September 22, 2015

Counsel

• L. Fagbenro — counsel for the applicant society
• J. Vandekleut — counsel for the respondent, A.M.
• I. Feuer — counsel for the respondent, M.U.
• No appearance by or on behalf of C.L., even though served with notice
• H. Smith McGurk — counsel for the Office of the Children's Lawyer, legal representative for the child, C.U.

Decision

Deluzio J.:

Background

[1] The trial of an original protection application for the child C.U., DOB […], 2008, and a Status Review application for the child L.M., DOB […], 2010 was heard over 16 days between October 29, 2014 and March 6, 2015. The Highland Shores Children's Aid Society sought an order of Crown Wardship no access for L.M. and a six month supervision order for C.U., maintaining his placement with his father, M.U., and requiring that Ms M.'s access be supervised by the society. I released my 38 page written decision on March 10, 2015 and invited written submissions on the issue of costs. I returned L.M. to Ms M.'s care pursuant to a six month supervision order, and I placed C.U. in the joint care of his parents, in accordance with a shared parenting schedule to be approved by the court, and subject to the supervision of the children's aid society.

[2] By the time of my decision on March 10, 2015 L.M. had been living in foster care for almost two years. C.U. had been living with his biological father pursuant to interim society supervision orders which restricted Ms M.'s access to access supervised by the society.

Costs Application

[3] Ms M. seeks an order of costs against the society in the amount of $10,000.00. She submits that the society's investigation, from time of L.M.'s apprehension and continuing throughout the trial until her new born son T.D. was apprehended, was unreasonable and unfair and that a costs sanction to hold the society accountable is appropriate in this case.

[4] The society opposes the request for costs. In its written submissions addressing the issue of costs the society argues that it did not conduct itself improperly during the trial and that the society's position seeking Crown Wardship was consistent with the recommendations of the Parenting Capacity Assessment, and therefore was fair and defensible. The society does, however, concede in its submissions that there were problems with the conduct of its child protection investigation, and makes the following admission at paragraph 39 of its written submissions: "with regard to the failings referred to by Mr. Vandekleut in paragraph 11 of his Submissions, the society has embarked on identification of its process/practices and procedures that need to be reviewed. Plans are being made to take steps to ensure these lapses do not occur again."

[5] Paragraph 11 of Mr. Vandekleut's submissions identifies the following "failings" of the society:

• the society's failure to fully investigate less intrusive protection options before apprehending L.M.;
• the society's failure to assign a new worker;
• the society's suspension of Ms M.'s access for two months;
• the society's revocation of Ms M.'s home access;
• the society's failure to fully investigate kinship care options for L.M.;
• the society's restrictive and punitive approach to access;
• the society's failure to work with Ms M. and failure to offer any services to her; and
• the society's unreasonable and unfair apprehension of T.D.

[6] It is unclear from the society's submissions which of these failings the society has identified for review and change.

[7] The society also urges the court to consider that the society operates on a budget and therefore any award of costs would affect service delivery in other areas.

Legal Framework for Costs Awards Against Child Protection Agencies

[8] The authority for a court to award court costs is found in subsection 131(1) of the Courts of Justice Act, R.S.O. 1990 c. C-43, as amended, which provides all cost orders are exercises of judicial discretion. That discretion must be exercised within the parameters set out in section 24 of the Family Law Rules. In a child protection case there is no presumption that the successful party is entitled to an award of costs against the society. The starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children. The court must approach the issue of costs by balancing the importance of encouraging child protection professionals to err on the side of protecting children with the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.

[9] Costs will generally only be awarded against a child protection agency where the public at large would perceive that the society has acted in a patently unfair and indefensible manner. A society is obligated to conduct a thorough investigation, remain open minded about possible versions of relevant events, consider alternative less intrusive measures before apprehending children from their parents, continue to investigate and work with parents up until a final court determination, reassess its position as more information becomes available, and treat parents and children fairly, respectful of their rights and dignity.

Findings of Unreasonable and Unfair Conduct

[10] In my lengthy written decision I made numerous findings that the society conducted its investigation in a manner that was unreasonable and unfair. The evidence supporting my findings is detailed in my decision. The most significant findings are summarized as follows:

(a) Failure to Investigate Before Apprehension

The society failed to thoroughly investigate whether L.M. was at risk of imminent harm before apprehending L.M., failed to reassess its position when the workers found that Ms M. and L.M. were not living with M.D. at the time of the apprehension, and failed to explore other less intrusive options such as Ms M. moving with L.M. to a shelter.

(b) Failure to Assign New Worker and Offer Services

The society unreasonably refused Ms M.'s repeated requests for a new worker and failed to offer Ms M. any supportive services, such as individual counselling or parenting education. The society's failure to assign a new worker made it impossible for the society to fulfill its mandate to continue to investigate and work with parents until a final court determination is made.

(c) Failure to Investigate Kinship Care Options

The society failed to fully consider all appropriate protective measures including kinship care options. L.M. struggled in foster care and his behaviour deteriorated significantly while he was in care. He was placed in three different foster homes and was inappropriately disciplined by a foster parent who washed his mouth out with soap. The society has a positive, ongoing obligation to investigate kinship care options and to ensure that a child removed from the care of his or her parent is in the least disruptive placement available to them. The society failed to fully investigate and assess kinship care plans put forward by the maternal grandmother and paternal great grandmother. These women should have been identified as strong supports for both Ms M. and the children and should have been considered for placement and as access supervisors.

(d) Restrictive and Punitive Approach to Access

The society took a restrictive and punitive approach towards Ms M.'s access and exercised its discretion by using access to control Ms M.'s behaviour or punish her for non-compliance with society expectations, with little regard for whether the access they "allowed" was in the best interests of either child.

(e) Failure to Continue Investigation After Parenting Capacity Assessment

Once the society received the Parenting Capacity Assessment recommending Crown Wardship for L.M., in March 2014, the society developed a plan that the society would not expand Ms M.'s access or offer make up access if she missed a visit. The society viewed the PCA as determinative of L.M.'s fate and failed to fulfill its mandate to continue its investigation and to continue working with Ms M. until a final court determination is made. Ms M. was never informed about the society's plan to further restrict her access or amend its application to seek Crown Wardship of L.M.

(f) Warrantless Apprehension of Newborn Child

The society's warrantless apprehension of Ms M.'s newborn child T.D., on a scheduled trial date, and after being directed by the court to negotiate with Ms M.'s counsel to develop a less intrusive protection plan, was unreasonable, unfair and indefensible.

(g) Failure to Follow Court Direction

T.D. was born on a scheduled trial date. A discussion was held in court about the society's plan to apprehend while Ms M. was in labour. Not only did the society fail to seek judicial authorization before apprehending T.D., the society failed to follow clear judicial direction to develop a less intrusive protection plan with Ms M.'s lawyer before the child was born. The court directed the society to work co-operatively with Ms M. and her lawyer to develop a less intrusive protection plan but the society ignored the court's direction and the apprehension occurred just hours after the matter was discussed in court. There was no consultation or information sharing between the society lawyer and worker who were present in court and the supervisor who authorized the apprehension. No satisfactory explanation was provided to the court to justify this lack of communication or consultation.

(h) Contemptuous Conduct

At the first appearance two days after T.D. was apprehended, the court ruled that the society did not have grounds to apprehend T.D. without a warrant and that the least disruptive placement in T.D.'s best interests, was placement with his parents, subject to an interim supervision order. The society's decision to proceed with a warrantless apprehension hours after receiving direction from the court to develop a less intrusive protection plan, was not only unfair and unreasonable, but bordered on contemptuous.

Costs Award Decision

[11] When considering whether to order costs against the society, the court's primary concern is not to punish the society but to hold the society accountable. I have considered all of the trial evidence and the submission of both counsel and I find that the society's conduct of its child protection investigation from the time of L.M.'s apprehension and continuing until the mid-trial apprehension of T.D. was patently unfair and indefensible. The apprehension of a child from the care of a parent is one of the most intrusive exercises of state power over the individual. Ms M. has experienced this intrusive state action twice and in both cases, the society failed to fulfill its obligation to conduct a thorough investigation and assessment of whether either child was at risk of imminent harm in his mother's care in the circumstances that existed at the time of the apprehension. The society failed to fully investigate kinship options for L.M. and by its refusal to assign a new worker, the society failed to fulfill its obligation to work with Ms M. towards her goal of having L.M. returned to her care. The society's punitive approach to Ms M.'s access with her children was unfair and demonstrated a lack of respect for the rights of Ms M. and her children and a complete failure to consider whether the restrictions and access suspensions imposed by the society were in the best interests of the children.

[12] The society must be held accountable for its actions in this case, with an award of costs. Rule 24(11) sets out the factors which the court must consider when setting the amount of costs once liability has been established. I have considered these factors.

[13] Mr. Vandekleut has submitted a bill of costs totalling $26,494.90. He seeks an award of costs in the amount of $10,000 which is less than half of the actual legal costs he incurred at the legal aid rate. Mr. Vandekleut's submission is reasonable. Taking into account all of the circumstances of this case, and considering the factors set out at Rule 24 of the Family Law Rules, I order costs against the Highland Shores Children's Aid Society, fixed in the amount of $10,000.

Released: September 22, 2015

Signed: "Justice E. Deluzio"