WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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

Citation: 2018 ONCJ 391

Date: June 6, 2018

Court File No.: Brampton 20144/17

Parties

Between:

The Children's Aid Society of the Region of Peel Applicant

— And —

M.D. A.B. Respondents

Before: Justice A.W.J. Sullivan

Heard on: April 25, 2018

Cost Decision released on: June 6, 2018

Counsel

Manjit Pannu — counsel for the applicant society

Anser Farooq — counsel for the respondent father A.B.

Decision

SULLIVAN J.:

Facts

[1] This is a decision respecting a motion for costs commenced by the respondent father Mr. A.B. against the Children's Aid Society of the Region of Peel (Society).

[2] The Children's Aid Society for the Region of Peel is the respondent to this motion.

[3] The mother Ms. M.D. in a now discontinued protection application takes no position on this motion for costs.

[4] The respondent parents gave birth to a son E.B. on […], 2017.

[5] Their son was brought into care after an apprehension that took place at the hospital where their child was born in Toronto.

[6] The Society from its perspective became involved with the family over concerns relating to them not being prepared for the infant. In particular, an inability to work together to create a plan that would address their child safety, risk of violent behavior between family members and allegations regarding the mental health of the mother raised by the father within their dispute. The parents are separated.

[7] The father argues that it was this apprehension that should attract costs as the actions of the Society fell short of their duty to "fair dealing" and bordered on reckless disregard.

[8] The father argues that the Society stepped beyond its permissible boundaries when a dispute between the parents was merely about whom their son would be discharged to from the hospital. The father argues that his entire extended paternal family was available for his son's care.

[9] Father notes in his affidavit that at one point after the Society's involvement it had deemed it would be safe for his son to be discharged into his care. Parents were encouraged to arrive at a decision between them both as to whom the child would be discharged to.

[10] He further notes that the paternal grandmother was also ready to care for his son on a full-time basis in order to avoid the child being placed in care. In addition, paternal uncles were available but not investigated.

[11] From the Society's perspective, initially neither parent had supplies for the child and there were competing parenting plans at the time of birth and neither parent proposed alternative caregivers.

[12] Workers then met on November 23, 2017 with both mother and father and advised them that the Society did not have a position as to whether the mother or father cared for the baby given that no concerns were noted and the parents at this point had adequate supplies and each their own living arrangements.

[13] Between November 23, 2017 to November 27, 2017, the society workers had meetings with the parents to encourage them to develop a plan that would assist in their caring of their son upon discharge. The parents did not come up with a plan and continued to have differences and competing plans for their infant son.

[14] In particular, the respondent father on November 27, 2017 reported to the Society that he had serious concerns regarding the mother's mental health and provided letters from doctors in Egypt which he advised indicated the mother was unstable.

[15] On that same day there was a conflict at the hospital between the family that required the intervention of the nursing staff, hospital security and police.

[16] The father engaged in a verbal argument with the Society workers at the hospital while holding the child. This argument escalated at which point a Society worker asked the unit nurse to care for the newborn and place the child in a secure location.

[17] During this incident, both parents engaged in arguments to the point that a "code white-stage-2" was called by hospital staff. Hospital nursing staff intervened for the safety of the child. Hospital security and police requested family and friends to leave the hospital.

[18] The police were involved and advised that the father could potentially be arrested and charged. The parents at this point still did not have a plan for the discharge of the child other than competing family plans.

[19] On November 28, 2017 the Society applied for and obtained a warrant from a Justice of the Peace to apprehend the child which they did.

[20] On December 4, 2017 at the first appearance of the return of the protection application, following the apprehension, the Society and the parents assisted by counsel arrived at a plan and signed Minutes of Settlement that the child would be placed with the father with access to the mother.

[21] This protection application was discontinued on or about April 25, 2018 with a plan in place for the parents to arrive at an interim order in a Family Litigation file, which is ongoing.

Law

[22] When it comes to the issue of costs against a child protection agency the central focus is on what an ordinary person perceives the actions of the society as having acted unfairly or unreasonably in the circumstances.

[23] The court has discretion to award costs against a party that is a government agency. Rule 24(3).

[24] When considering costs to be awarded against a Protection Society, the court is to consider if that Society's behavior was "unfair, indefensible or exceptional". The test is governed by the seven principles which are set out in Children's Aid Society of London and Middlesex v. C.D.B., 2014 ONSC 1414.

[25] In assessing the fair dealing of the Society with parents the central focus is fairness. In Catholic Children's Aid Society of Toronto v. C (M), [2015] OJ No 4173, the court stated that "fair dealings" are to be assessed through the eyes of the ordinary person. Also reference paragraph 90 of Children's Aid Society of Niagara Region v. B (C).

[26] I am also instructed in these matters to note that child protection agencies should not be penalized for attempting to fulfill their mandate, unless they have acted in some indefensible manner. CAS of Algoma v. M(R).

Discussion and Ruling

[27] In this particular matter the following is undisputed in leading up to the Society obtaining a warrant to apprehend the child E.B.

[28] The mother and father initially had not prepared for their son's discharge from hospital and although this was rectified in short order, they could not agree as to which parent the child would be discharged to.

[29] While at the hospital, the father raised serious allegations against the mother's mental health from treating physicians in Egypt where the mother had resided before coming to Canada.

[30] In addition, while at the hospital, the father and mother engaged in conflict which led to a physical confrontation between the parents when their son was in the father's arms.

[31] The nursing staff at the hospital raised concerns for the safety of the child and their operations, calling for assistance from security and eventually also the Toronto Police.

[32] It is not an everyday occurrence when a child has just come into the life of a family for such high-level conflict involving staff at the hospital, security and police. Such conflict attracts concerns for the safety of a child and triggers the reporting provisions under the now CYFSA for professionals involved, being the Nurses and Social work staff at hospitals.

[33] The Society in assessing the situation did not act without a warrant, which is their duty to obtain except in those situations that demand immediate action for the safety and well-being of the child. This the Society did and a warrant was granted.

[34] The Society attempted to work with the parents to arrive at a family focused plan, which the family failed to settle on and conflict occurred.

[35] The Society then acted under its authority in what I consider to be a reasonable and balanced fashion. This they did by assessing and remaining open-minded to the ongoing and available information that came to its knowledge which lead to the placement of the child with his father with conditions within 5 days of Apprehension.

[36] The father attempts to frame the above as merely a dispute between the parents as to which of them would care for their son. The father further takes umbrage with the fact that his relatives were willing to assist.

[37] In argument, the father glosses over the conflict that involved the hospital staff charged with the duty of care for young children and infants, security and eventually the police.

[38] The Society worked for a number of days with the parents in attempting to arrive at a plan.

[39] I find that a reasonable person looking at the situation that erupted into conflict, verbal and physical confrontation with a young child in the middle, would find, as I do, that the Society acted reasonably and fairly.

[40] The Society did not shut its mind from ongoing information when both parents presented themselves at court within five days with counsel that assisted the parents in focusing on their son's needs to arrive at a plan that saw their son discharge back into the family's care while the family moved on with further litigation, something that was not available at the time of potential discharge at the hospital when emotions were ruling the parent's behavior.

[41] Considering the above facts and law I dismissed the father's notice of motion for costs dated March 29, 2018.

Released: June 6, 2018

Signed: Justice A.W.J. Sullivan