WARNING

The court hearing this matter directs that the following notice should 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 File and Parties

Court File No.: Halton 104/15

Date: 2016-02-04

Ontario Court of Justice

Between:

The Children's Aid Society, Region of Halton Applicant

— And —

O.H.-R. (Mother), A.R. (Father of J.V.) Respondents

Before: Justice S. O'Connell

Costs Endorsement dated February 4, 2016

Counsel:

• Diane Skrow for the applicant society
• Modupe Ehinlaiye for the respondent mother

O'CONNELL J.:

Introduction

[1] The respondent mother seeks an order for costs against the Children's Aid Society in the above proceeding on a partial indemnity basis in the amount of $2,275.43 or on a full indemnity basis in the amount of $3,447.63. The respondent father supports the relief sought.

The Respondent Mother's Position

[2] The respondent mother submits that the society failed in its duty to conduct a thorough investigation prior to commencing its protection application regarding her child. She submits that the whole proceeding was completely unnecessary and prompted by prejudice. According to the mother, the society relied too heavily on the hearsay statements of doctors and other medical professionals, resulting in frivolous and vexatious proceedings.

The Society's Position

[3] The society submits that it acted reasonably and fairly throughout its child protection investigation and that it had no alternative but to commence a protection application regarding the child because the mother refused to cooperate in its initial investigation.

[4] The society submits that absent a court order, it was unable to conduct a thorough child protection investigation. Once the proceedings were commenced and the mother cooperated by providing the information requested, the society completed its investigation, reassessed its earlier position and ultimately withdrew the protection application.

Background

[5] The Halton Children's Aid Society ("the society") commenced a child protection application on January 16, 2015. It sought an order that the child, J.H., age 13 ("J."), remain in the care and custody of the mother, but subject to the supervision of the society for a period of seven months.

[6] J. has Crohn's disease. The mother sought treatment for her son's Crohn's disease at McMasters Children's Hospital. J. was admitted to McMasters Children's Hospital on January 5, 2014 and received treatment from the hospital between January and August 2014. However, for a number of reasons, the mother expressed dissatisfaction with the treatment that the hospital provided for her son in August 2014, including what she described as the aggressive nature of the treatment proposed by the hospital. The mother also has Crohn's disease and is familiar with different treatment options.

[7] The mother researched alternative care for her son and found Dr. Karen Barnes, a naturopathic doctor, where she sought treatment for her son's condition.

[8] On August 27, 2014, the society received a report from McMaster Children's Hospital regarding J. The hospital reported that they were concerned that J.'s hemoglobin levels may have significantly decreased and that the child required immediate blood work. Hospital staff reported to the society that they had been unsuccessful in contacting the mother to relay their concerns and to ensure that the child has an immediate blood transfusion, if necessary.

[9] The society met with the mother in August of 2014. The mother advised the society of the concerns that she had with respect to the treatment by the McMasters Children's Hospital. She further provided the society with the name of Dr. Barnes, her naturopathic doctor, and her alternative treatment plan.

[10] The society informed the mother that the hospital required the child to complete blood work on that day given the concerns raised about the decrease in the child's hemoglobin levels. The mother agreed that she would take the child for blood work on that day and attended a local lab to do so. However, later that day, the society requested that she attend McMasters Children's Hospital the same day for further blood work on her son as the hospital was required the blood results to be read immediately in the event that immediate intervention was required.

[11] Notwithstanding that the mother had already attended a local lab earlier that day to obtain blood work for J., she agreed to attend the hospital later that evening with J. for further blood work. The mother and J. were at the hospital for a number of hours. The mother and child were sent home from the hospital after J.'s hemoglobin levels were tested.

[12] The society contacted Dr. Barnes on September 5, 2014. According to society materials, although Dr. Barnes indicated that she was treating J. for Crohn's disease, Dr. Barnes was concerned that the mother may not comply if a medical doctor requested a blood transfusion for the child, which could be detrimental to the child's health. According to Dr. Barnes, medical doctors play an integral role in addressing the needs of Crohn's patients and that includes requesting blood work and receiving the results.

[13] The society called the mother to inform her of the information relayed by Dr. Barnes. The society requested that the mother sign a consent to permit the society to contact the mother's family physician. According to the society, the mother refused to sign the consent.

[14] The mother discontinued her relationship with Dr. Barnes after Dr. Barnes apparently advised the society that she no longer felt confident in her ability to treat J.'s condition. Subsequently, the mother obtained alternative treatment for her son and sought out and found another naturopathic doctor, Dr. Kelly McGuire. The society was unaware that the mother had found another naturopathic doctor.

[15] The society attempted to meet with the mother on October 3, 2014 regarding their investigation. The mother provided two letters to the society on that day, both of which were marked as exhibits in these proceedings. It was the mother's position that she would not cooperate with the society until she had received full file disclosure.

[16] On October 14, 2014, a child protection supervisor sent a letter to the mother inviting her to come to the office to discuss the family's file. The child protection supervisor included consent forms with the letter and requested that the mother complete the forms in order to allow the society to provide the mother with file disclosure. The mother responded and advised that she would not communicate with the society until she received file disclosure. The mother did not return the signed consents.

[17] The society received further calls from the child's pediatrician in November 2014. The child's pediatrician expressed concerns that the child's hemoglobin level had dropped to low levels. On January 8, 2015, Dr. Barnes advised the society that the child should receive blood work approximately every three months and although she did not have concerns that the child's hemoglobin levels had dropped, she did feel that the child needed to have blood work completed no later than January 9, 2015.

[18] On January 9, 2015, child protection workers attended at the mother's home in order to meet with her and the child and to ensure that blood work was completed for the child. The workers were unable to meet with the mother nor were they able to communicate with the mother after that time.

[19] As a result, the society commenced this child protection application. It was the society's position that J. was a child in need of protection because he required ongoing medical or naturopathic treatment and the society was concerned that the mother may refuse a blood transfusion for the child if his hemoglobin levels dropped too low.

[20] The first court appearance on the child protection application was January 22, 2015. There were two subsequent court appearances, one on February 18, 2015 and one on March 26, 2015. On March 26, 2015, after the mother provided certain information requested by the society, the society withdrew its protection application. A notice of withdrawal by the society was served and filed shortly thereafter.

[21] The mother filed extensive and detailed responding materials in the child protection application. Based on the information provided by the mother, it was clear that the mother was keenly aware of the child's condition and had actively sought out appropriate medical and naturopathic treatment for him. The mother is a strong advocate for her son and was taking all of the steps necessary to manage her son's Crohn's disease.

[22] In her materials, the mother confirmed that she had obtained the assistance of a further naturopathic doctor, Dr. Kelly McGuire. Following the treatment plan addressed with Dr. McGuire, the mother introduced various changes to the child's diet, she continued to follow the doctor's recommendations regarding his treatment and plan of care, and she continues to cooperate in blood transfusions when necessary in accordance with a medical doctor's recommendations.

[23] The evidence demonstrated that since the implementation of the new treatment plan the mother noticed significant improvement in the child's energy levels and his hemoglobin levels. The child had gained significant weight. The mother would continue to take the child to the doctor to obtain blood work regularly and when required.

[24] As a result of receiving the information from the mother in her responding affidavit materials including all the exhibits attached, the society agreed to withdraw its protection application on March 26, 2015, approximately two months after it commenced the application.

The Law and Governing Principles

[25] Rule 24 of the Family Law Rules governs the matter of costs in family law proceedings.

[26] Rule 24(1) provides that there is a presumption that a successful party is entitled to costs. However, Rule 24(2) provides that this presumption does not apply in child protection cases or to a party that is a government agency. Pursuant to Rule 24(3), the court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful.

[27] Subrules 12(3) and 12(4) of the Family Law Rules are also relevant in this case. Subrule 12(3) provides that a party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties agree otherwise. Rule 12(4) provides that despite subrule (3), if the party is a government agency, costs are in the court's discretion. Rule 2 states that "government agency" includes a children's aid society.

[28] The case law regarding costs against a children's aid society demonstrates that a society's conduct need not amount to bad faith in order to attract a costs award. However, there must be exceptional circumstances of unreasonable or unfair behaviour. The reason for this is that a society must not be penalized in carrying out its statutory mandate to protect children. As the Ontario Divisional Court stated in S. (D.), Re, [2003] O.J. No. 945:

The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a children's aid society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations.

[29] In Children's Aid Society of the Region of Halton v. K.J.H., [2004] O.J. No. 3828, Justice Theo Wolder reviewed the case law regarding costs and sets out the test to be applied in determining whether to impose costs against a children's aid society as follows:

In Children's Aid Society of Algoma v. Robert M., Christine M., Brian B., Barbara B., Christopher H. and Joanne H., (2001), 18 R.F.L. (5th) 36, [2001] O.J. No. 2441, Justice John Kukurin set out a thorough review of the competing considerations of cost awards in child protection proceedings. Since the introduction of the Family Law Rules, the test to be applied in deciding whether to impose costs against a children's aid society is whether a reasonable person would perceive the society as having acted unfairly and unreasonably in its conduct. See Children's Aid Society of Ottawa-Carleton v. C. and H., 2000 CarswellOnt 5448 (Ont. Fam. Ct.). Costs may be awarded against a society on this basis, even absent of finding of bad faith. See Children's Aid Society of Ottawa v. D.S., (2002), 110 A.C.W.S. (3d) 1055, [2002] O.J. No. 146.

[30] Courts have applied the fairness principle both before and after enactment of the Family Law Rules in 1999. In CAS Waterloo v. B.Z., [1996] O.J. No. 4245, Justice Heather Katarynych set out the following principles in determining whether a party is entitled to costs against a society:

From that jurisprudence, I concluded that the adjudication of a claim for costs against a children's aid society must be guided by the following principles:

1. A society has no immunity from a costs award.

2. As a general rule, child protection agencies should not be penalized in attempting to carry out their statutory mandate under the Province's child protection legislation.

3. Protection agencies are not ordinary litigants. The society has a mandate to protect children, and children have a right to be protected.

4. As part of its duty to act with fairness and reasonableness in carrying out its statutory responsibilities a society must exercise good faith, due diligence and reason in its investigations. A society is not free to assume that "if there is smoke, there must be fire".

5. Nowhere is a society authorized, in the name of the powers entrusted to it by the legislature, to ignore or trample on a parent's rights.

6. The essential test for the appropriateness of an award of costs against the society is whether the society should be perceived by ordinary persons as having acted fairly.

7. An ordinary person perceives a society as having acting fairly in the following circumstances:

a) before launching a court proceeding, the society has undertaken a thorough investigation on allegations or evidence of a child's need for protection;

b) as part of its thoroughness, the society has recognized and acted on its duty to look beyond an allegation for corroboration or independent evidence of it;

c) as part of its thoroughness, the society, mindful of its duty under subsection 2(2) of the Act to ensure that children and parents have an opportunity, where appropriate, to be heard and represented when decisions affecting their 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 versions for their likely reliability and credibility - before the society proceeds to "validate" the allegation and draw the unequivocal conclusion that the need for protection exists;

d) the society has demonstrated its openness to any version of the events that is offered, including the version offered by the person against whom the allegation is made;

e) as part of its thoroughness, the society has been alert to 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; and

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

[31] In Children's Aid Society of Brant v. V.G., [2001] O.J. No. 3202, Justice Thibideau held that there were two principles to be considered in assessing whether costs should be awarded:

1. there should be no costs against a society that loses a case simply because of that loss, without something more being present; and

2. costs should be awarded in exceptional circumstances, the exact definition of which has been interpreted in various ways but all pointing to conduct by the society that is seen as patently unfair by the public at large.

[32] In A.M. v. Chatham-Kent Integrated Children Service Children's Aid Society, 2006 ONCJ 555, [2006] O.J. No. 4522, Justice Margaret McSorley summarises the principles that can be gleaned from the case law on the issue of costs against a children's aid society as follows:

a) Costs against a Society should only be awarded in exceptional circumstances;

b) Exceptional circumstances includes conduct by the Society that is seen as patently unfair by the public at large;

c) Societies are not ordinary litigants and should not be penalized for attempting to fulfill their mandates unless they have acted in some indefensible manner;

d) A society should not be penalized for an error in judgment, but an error in judgment can only truly arise where the society has considered all courses of action reasonably available at the time;

e) A society must be even-handed and reassess its position as the investigation unfolds and more information becomes known;

f) Costs should be awarded if the Society would be perceived by ordinary persons as having acted unfairly;

g) Costs may be awarded against a Society even absent bad faith; and

h) The possibility of an award of costs is the only manner in which a litigant, including a Society can be held accountable for its actions.

The Application of the Law and Principles to this Case

[33] The court sympathises with the mother's frustration in this matter. It is clear that she is a strong advocate for her son and that she has his best interests and welfare at heart. However, I do not find that the society acted so unreasonably in this case to attract costs against it. The society was attempting to carry out its statutory duty to investigate child protection concerns brought to their attention by a hospital and medical professionals involved in the treatment of a child with a serious illness.

[34] The mother's submission that the society should not have relied upon the "hearsay reports" of medical professionals when first conducting its investigation is incorrect. The medical professionals have a duty to report any concerns to the society pursuant to section 72(1) of the Child and Family Services Act. The professional "duty to report" attracts a very low threshold. The society has a legal and statutory obligation to follow up and investigate those reports. It attempted to do so but was met with a lack of cooperation from the mother.

[35] Although the mother was understandably upset in having to attend with her son to obtain blood work for him twice in one day at the society's request, her subsequent refusal to cooperate with the society workers prevented the society from conducting a thorough investigation, as per its mandate, prior to commencing court proceedings.

[36] The society attempted to work voluntarily with the mother for approximately five months before commencing its protection application. The society then sought a minimally intrusive order to compel the mother to cooperate with the society's investigation of the protection concerns. Absent commencing the protection application, the society would not have been able to obtain the information it required and that ultimately led to the withdrawal of the protection application.

[37] The cases that the mother relies upon are fundamentally distinguishable from the facts in this case. In the case before me, the society sought a minimally intrusive order to permit it to adequately investigate protection concerns regarding the child because the mother refused to cooperate in the investigation. The society did not remove the child from the mother's care or restrict the mother's access to her child. Once the society obtained the information necessary to complete its investigation, the society reassessed its earlier position and was satisfied that the protection application regarding J. should be withdrawn, and did so immediately at the third court appearance, two months after the case had commenced.

[38] In conclusion, I find that the society's conduct throughout these proceedings does not fall within the range of exceptional circumstances by which a reasonable person would perceive the society to have acted unreasonably and unfairly, thereby attracting costs. The mother's motion for costs is therefore dismissed.

Released: February 4, 2016

Signed: "Justice S. O'Connell"