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.

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: September 16, 2016

Court File No.: North Bay C184-13

Between:

Children's Aid Society for the District of Nipissing and Parry Sound, Applicant

— AND —

L.O. and R.O., Respondents

Before: Justice L. J. Klein

Heard on: May 6, 2014

Reasons for Judgment released on: September 16, 2016

Counsel:

• Heather Zuck, counsel for the applicant society
• Clemens Eggert, counsel for the respondent(s)
• Peter Rutland, counsel for the Office of the Children's Lawyer, legal representative for the child

Judgment

Klein J.:

[1] This is a claim for costs made by the respondents L.O. and R.O. against the Children's Aid Society for the District of Nipissing and Parry Sound ("the Society") arising out of a child protection application brought by the Society involving their daughter A.O., born […], 1999.

A. Background

[2] The Application was first returnable before this court on July 10, 2013 at which time an order was made for the appointment of counsel for the Office of the Children's Lawyer ("OCL") and was adjourned one week to July 17, 2013.

[3] On July 17, 2013 in the presence of both parents and Mr. Rutland, as OCL, the matter was adjourned to August 26, 2013 for motions to be brought including a Charter Application by the parents. Timelines were extended on consent.

[4] On August 26, 2013 a hearing was held before me on the Society's motion for a temporary supervision order and the parents' motion that there be no supervision. Voluminous affidavits were filed by both the Society and the parents on the issues before the court and I reserved my decision until September 11, 2013 in order to review the material in light of extensive argument made before me. On September 11, 2013 the matter was adjourned to October 30, 2013 for the rendering of my decision.

[5] A temporary order pursuant to s. 57(2) CFSA was made by me for the child, A.O. to remain in the care and custody of her parents with no supervision by the Society. The matter was adjourned to December 11, 2013 to permit the OCL to investigate and provide input as to what the child's needs were, if any.

[6] The temporary order was made as a result of evidence that the child had been involved in a series of adult situations including a bizarre car ride through the streets of North Bay in a vehicle being driven by the father, R.O. which was captured on video. This was in addition to historical concerns reported to the Society regarding the child being exposed to, at times, odd behavior and adult conversations of her father.

[7] On December 11, 2013, both the OCL, Mr. Rutland, and the Society advised of problems that were encountered in meeting with the child, A.O. The court granted a brief adjournment to permit the parties to resolve their differences with the admonition that this matter would not come to an early conclusion if A.O. was not heard from in an appropriate manner. The matter was adjourned to January 29, 2014 to permit the interviews with the child to occur.

[8] Court was advised on January 29, 2014 that the child met with Mr. Rutland on January 16, 2014 in his office but refused to meet with the Society's protection worker thus meaning that the Society was unable to discuss its concerns with the child.

[9] Mr. Rutland provided information to the Society as to the fruits of his investigation and representation on behalf of the child that, despite the Society's initial concerns, A.O. was doing well at school and that his 14 year old client did not want any involvement with the Society. He further advised that it would be his position that there should be no ongoing protection concerns.

[10] At the return of this matter on January 29, 2014, the Society confirmed that it had received the information and position of the OCL. It further took the position that it could not withdraw its Application in the face of potential costs consequences pursuant to Rule 12(4) and that only the court was vested with the authority to make a determination as to whether the child is a child in need of protection. The Society did not oppose, indeed invited the court to make a determination that the child, A.O. was not a child in need of protection. The court dismissed the Application. A hearing on the issue of costs was set for May 6, 2014.

B. Costs Submissions

[11] The Respondent parents sought costs on a substantial indemnity basis from the Society. They sought the sum of $22,614.07 inclusive of fees, disbursements and taxes. The claim includes fees of Mr. Fenton for criminal matters involving R.O. and related to the Society's investigation, Dr. Paul King, psychologist for A.O.'s fees and Karen Robinson, therapist for A.O.

[12] The Society has the responsibility to investigate complaints and to continue to reassess its position as the matter progresses. The parents argued that the Society essentially "jumped the gun" in this matter in early July 2013 and relied upon scant evidence that there was a risk to A.O. They contended that the Society should have made more concerted efforts to contact the parents prior to bringing the Application before the courts. The Society countered that the parents were not making themselves available and that the Society was not content to talk only through the parents' lawyer.

[13] There was late service upon R.O. on July 10, 2013 and the Society sought a temporary order on that date. The child was apprehended and returned to the mother, L.O.'s care on the basis that the child was being exposed to the father's criminal behavior. The Society's suspicions increased when the Respondents' exercised their right to not speak to the Society without counsel after speaking to their counsel.

[14] The parents further argued that allegations of sexual assault levied against R.O. coloured the Society's view of the matter and that the Society's concerns regarding R.O.'s mental health were not grounded in facts. The letter they produced to the Society from Dr. Paul King, psychologist, dated July 15, 2013 with his opinion that there was no problem with R.O. was not acted upon by the Society. The Society responded that Dr. King was not apprised of all the information that was in its possession and that his report was not complete.

[15] The Respondents alleged "bad faith" on the part of the Society as it relates to contact that was made by CAS Supervisor Nancy Lafrance-Rich to R.O.'s sister D.K.'s employer concerning R.O. living in D.K.'s home. They contend that the employer called D.K. regarding his concerns that a pedophile was living in her home. The Society denies that R.O. was characterized in that fashion and that the contact was made to ensure that no wards were housed in D.K.'s home given the Society's responsibility to protect children under its care.

[16] The Respondents' counsel took responsibility for the delay in A.O. meeting with her lawyer Mr. Rutland which undoubtedly delayed him in his work on behalf of A.O. and ultimately in helping to bring this matter to a conclusion. The Society pointed to the problems that this delay further aggravated.

[17] The parents also alleged that the primary Society worker, Shannon Lachance, was married to an officer with the North Bay Police Service and, as a result, was prejudiced against R.O. who was in a protracted dispute with that police force and certain individuals therein. This, they argued, is contrary to societal interest that the Society should do things properly, without bias and to re-evaluate the matter in a regular and consistent basis. The Society disputed this characterization and pointed to the fact that the complaints made to it were obtained in the ordinary course of their business. Further, the Society contended that the position taken by the parents that they would only provide information as required by law led to inevitable delays in assessing its position and further led to suspicions on the part of the Society.

[18] The Society argued that it conducted a risk assessment model on provincial standards based on the information received and on historical concerns prior to bringing its Application in keeping with its statutory responsibilities and that it continued to reassess its position as further information became available, specifically that information eventually provided through the OCL counsel, Mr. Rutland. As indicated above, that provided with the OCL's position, the Society invited the court to dismiss its Application without a trial being held.

[19] The Society also argued about the reasonableness of the Respondents' bill of costs as follows:

(a) that the bill of Mr. Fenton, criminal lawyer, should not be considered as no charter argument was ever brought before the court

(b) that the bill for therapist services for the child A.O., may have been desirable given that A.O. was likely upset by everything that was going on at the time of the Society's involvement but that such costs were not caused by the Society meeting its mandate to assess risk and the intrusive nature of such assessments. The dysfunctional relationship between the Society and the Respondents with the child, A.O., placed firmly in the middle of that dispute may have led to her seeking counselling there was pressure placed upon A.O. by both the Society and her parents, as the Respondents

(c) the number of attendances at court were not all at the instance of the Society. From October 2013 to December 2013 the Respondents refused to cooperate with the Society to the point where an order of the court was required to allow the OCL to meet with the child to interview her in furtherance of his investigation. Even with that court intervention, a further adjournment was necessary to facilitate the OCL's completing his work on behalf of the child

(d) given the highly conflictual nature of the relationship between the Society and the Respondents, a great deal of allegations were brought forward by the parents which resulted in the Society filing reply material (tabs 19, 20 and 21); and

(e) counsel fee at $350 per hour was not itemized and at times was charged on what could have been accomplished by clerical staff for such things as filings, etc.

C. The Law

[20] The authority for a court to award court costs is found in subsection 131(1) of the Courts of Justice Act, R.S.O. 1991, c. C-43, as amended:

131. Costs (1) Subject to the provision of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[21] According to Rule 24(1) there is a presumption that a successful party is entitled to costs but the Court has discretion to award costs depending upon whether the successful party has behaved reasonably.

[22] The presumption that the successful party is entitled to costs does not apply in child protection cases: Rule 24(2) of the Family Court Rules.

[23] The absence of a the operation of a presumption when the unsuccessful litigant is a child protection agency means that other factors have to be considered, in addition to success, in determining whether costs should be granted.

[24] Rule 2 of the Family Law Rules sets out the primary objective of the rules which is to enable the court to deal with cases justly and Rule 2(3) provides that dealing with cases justly includes:

(a) Ensuring that the procedure is fair to all parties;

(b) Saving expense and time;

(c) Dealing with the case in ways that are appropriate to its importance and complexity;

(d) Giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[25] Rule 2(4) requires the Court to apply the rules to promote the primary objective and requires the parties and their lawyers to help the Court promote the primary objective of dealing with cases justly.

[26] The essential test for appropriateness of an award of costs against a Society is whether the Society should be perceived by ordinary persons as having acted fairly. See: Children's Aid Society of Niagara Region v. D. (W.) (2005), 15 R.F.L. (6th) 117 (Ont. Div. Ct.); Children's Aid Society of Waterloo (Regional Municipality) v. C. (Z.B.), [1996] O.J. No. 4245 (Ont. Prov. Div.).

[27] In Children's Aid Society of Niagara Region v. D. (W.) supra, Justice Katarynch described the circumstances that would cause an ordinary person to perceive a Society as having acted fairly:

(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 decision affecting their interests 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 version 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 it thoroughness, the society has been alert to rancour that might reasonably be animating the allegations;

(f) The society has reassessed its position as more information becomes available, even if a court hearing is in session at the time; in short, it has continued its investigation up to the time of a final court determination of the alleged need for protection and done so in a vigorous professional manner;

(g) The society has investigated all pieces of relevant information not just those pieces for which there is uncontroverted proof.

[28] It follows then that the circumstances of each case, particularly the conduct of the Society, must be scrutinized to determine whether the Society has acted unfairly. Indeed subrules 24(4) and (5) (unreasonable behavior), subrule 24(8) (bad faith) and subrule 24(7) (unprepared party) speak to the behaviour of the parties during the course of the litigation and make it clear that unreasonable or inappropriate behavior may attract cost consequences.

D. Analysis

[29] This was a high conflict matter more often experienced in custody/access cases. Trust among the parties was at a premium or, more accurately, practically non-existent. This lack of trust flavoured every aspect of the proceedings including the pre-application period.

[30] The Respondent father, R.O., demonstrated a high degree of suspicion towards anything that even suggested government involvement including, most importantly, the OCL counsel, Mr. Rutland. His distrust of the police led to the precipitating event being the complaint to the Society that the child, A.O., was being exposed to his alleged criminal behavior and she was coached by him to assist him in these endeavors. This was supported by the receipt and viewing of an audio/video recording of a drive through the streets of North Bay. The Society's concerns were that the child was a risk of suffering emotional harm as set out in sub-section 37(2)(g) of The Child and Family Services Act.

[31] The Society's suspicions were further heightened by the fact that its employees were denied free access to the child by the Respondents. With the appointment of Mr. Rutland as OCL there was the expectation that he would be permitted unfettered and unmonitored access to his client, the child A.O. Again the Society's suspicions were raised when the OCL was not immediately permitted to do his work until court intervention late in the proceedings.

[32] All of these suspicions were in the context of the Respondent father, R.O., being under charge for allegations of sexual misconduct towards young female children in the past and of ongoing concerns about the Respondent father's mental health. Those suspicions extended to the Respondent mother, L.O., in that the Society was concerned that she was unable to intervene and stop the Respondent father's behavior in the presence of the child.

[33] In light of these suspicions the Society sought to have the child assessed and counselled for any emotional issues that she might be experiencing as a result of being caught in the middle of adult conflict situations involving the Respondent father. The Society was singularly unsuccessful in having this assessment or counselling conducted at their request. A report was prepared at the request of the Respondent father by Dr. Paul King, psychologist, dated 13 July 2013 as a result of his involvement with A.O. on four separate occasions being December 6, 2011, March 30, 2012, January 22, 2013 and May 7, 2013. His opinion with regards to the Society's claim pursuant to S.37(2)(g) CFSA in its Application was that the child, A.O., "was not presenting indications that she was suffering from the conditions identified in [the Society's Application]"

[34] The Society did not accept the opinion of Dr. King given the concerns that he was not an independent person given his past involvement with the family. Further, the Society had concerns that Dr. King was not provided with the allegations that formed the basis for the Society's suspicions as to the harmful effects of the Respondent father's behavior in placing the child A.O. in the centre of adult conflicts. Also of serious concern for the Society was the fact that on all four occasions A.O. was seen and interviewed in the presence of the father, R.O. The Society questioned whether A.O. was in a position to speak freely to Dr. King in the presence of her father. For those reasons the Society continued to press for an independent assessment of and counselling, if necessary, for A.O. All of that is consistent with the Society's mandate to protect children in the context of maintaining families. In the context above, the Society's actions could not be said to be unreasonable in attempting to ascertain the status of A.O.'s emotional health.

[35] The Respondents' questioned the reasonableness of the Society's actions from the time that the first referral was made on Friday, July 5, 2013 until the Application was prepared and filed on Monday, July 8, 2013 with a return date of Wednesday, July 10, 2013. At no time did the Society agree to meet with the Respondent parents and their counsel and this amounts to a "rush to judgment". In argument at the costs hearing the Respondents' asserted that "all this could have been avoided" by that early meeting. As enticing as such a proposition may seem at first blush, it does not accord with the evidence. No evidence was led as to how this matter might have concluded at that early stage. No possible scenario was presented that any reasonable person could conclude that a golden opportunity was missed. The fact is that these parties did not trust each other and were very unlikely to resolve matters without the intervention of an independent actor. Enter the OCL, Mr. Rutland, who did help bring this matter to a conclusion in his role as A.O.'s counsel. His involvement, as I noted earlier was not easily concluded primarily due to the Respondents' ingrained distrust of anyone they suspected of having links with the government.

[36] The law is clear as reviewed by Justice Chappel in the case of Children's Aid Society of Hamilton v. K.L., 2014 ONSC 3679, that child protection agencies do not enjoy immunity from a costs award. 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 obligations to protect children. The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that these professionals exercise good faith, due diligence and reason in carrying out their statutory mandate. The high threshold of "bad faith" is not the standard by which to determine a claim for costs against a child protection agency. Costs will generally only be awarded against a Children's Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner. A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it difficult to weigh and balance the evidence and predict the legal outcome.

[37] Justice Chappel laid out a number of important factors to consider in deciding whether costs against are appropriate.

(a) In answering the question of whether the Society conducted a thorough investigation of the issues in question, I cannot conclude given the factors that I outlined above that the Society "rushed to judgment" in bringing this Application before the court.

(b) In answering the question of whether the Society remained open-minded about possible versions of relevant events, I cannot conclude given my findings above that the Society failed to consider any evidence provided. It is true that they rejected some evidence (vide Dr. King's report) as they had serious and reasoned reservations about the reliability of that evidence.

(c) In answering the question whether the Society reassessed its position as more information became available, I conclude that they reassessed all information as it became available, not always accepting same but it acted reasonably when provided with the OCL's report. The fact that they did not withdraw the Application is indicative of nothing more than a legitimate concern over potential costs implications. They instead invited the court to dismiss the Application which ended in the same result, and

(d) In answering the question of whether the Society had been respectful of the rights and dignity of the children and parents involved in the case, I conclude that the Society focussed on the child, A.O., throughout. It requested the involvement of the OCL in the initial Application and sought throughout to meet with A.O. independently to attempt to assess her emotional well-being. The Society's refusal to meet with the parents only in the presence of counsel speaks volumes about the high conflict nature of this case and the suspicion on everyone's part that permeated these proceedings. The Respondent father's sister's complaint that the Society contacted her employer regarding not placing wards in her house was reasonably explained as a desire to meet the Society's mandate to protect children in their care and not as any sign of disrespect towards the parents or their extended family.

[38] It is a fact that these proceeding concluded long before a trial became necessary and were only delayed by the OCL's inability to meet independently with the child, A.O. and not as a result of any procedural impropriety on the part of the Society. I cannot conclude, nor would the public at large conclude that the Society acted unfairly.

[39] This is not a case where the Repondents have satisfied me that the Society acted unfairly and ought to be penalized with an award of costs.

E. Conclusion

[40] There will no order for costs.

Released: September 16, 2016

Signed: "Justice L. J. Klein"