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
Date: 2019-09-23
Court File No.: Woodstock C55/18
Between:
Children's Aid Society of Oxford County Applicant
— AND —
K.M. J.S. Respondents
Before: Justice S. E. J. Paull
Costs Submissions Heard on: September 10, 2019
Reasons Released on: September 23, 2019
Counsel
Benjamin McIvor — counsel for the applicant(s)
Gary McQuaid — counsel for the respondent, K.M.
James Battin — counsel for the respondent, J.S.
Susan Gordon — counsel for the children
Decision
PAULL J.:
Issue
[1] Before the court is the issue of costs resulting from the withdrawal by the Society of its Protection Application pursuant to the motion at tab 39 of the continuing record seeking leave to withdraw and an order for no costs.
[2] J.S. filed a responding affidavit consenting to the withdrawal but opposing that it be on a without costs basis.
[3] All parties consented to the motion seeking leave to withdraw and the costs portion of the motion was heard on September 10, 2019.
Positions of the Parties
[4] J.S. seeks costs in the amount of $31,870.41 inclusive against the Society which is comprised of partial indemnity recovery up to October 14, 2018 when he served an offer to settle the Protection Application on the basis of withdrawal, and substantial indemnity recovery after that time. He filed a Costs Outline which included copies of invoices from his various legal counsel and from Dr. Warren, who provided him with critiques of the medical reports of Dr. Baird which were relied upon by the Society.
[5] He supports his position on the basis that he has been put to considerable expense in defending this matter, that he achieved equal success to his offer to settle, and that the Society failed in its obligation to properly investigate this matter which in the circumstances amounted to incompetence on its part.
[6] The Society takes the position that there should be no order as to costs in that it has at all times acted reasonably and pursuant to its mandate under the CYFSA.
[7] OCL counsel and K.M. take no position with respect to costs but both consented to a withdrawal of the Protection Application.
[8] In making this determination I have considered the affidavits filed at tabs 40 and 41, the submissions of counsel, and the costs outline of J.S.
Background
[9] K.M. (mother) and J.S. (father) are the parents of two children together, J.Sh. born […], 2010 and C.S born […], 2014. Prior to Society intervention the parents had shared custody of the children on a week about basis.
[10] J.S. resides with his partner, C.H who has three children, C. age 12, Co. age 9, and Ca. age 7. These children reside with their mother and J.S. half the time on the basis of a shared custody arrangement she has with the children's father.
[11] In January 2018 the father of C.H.'s children alleged that J.S. assaulted their son Co. J.S. acknowledged that he hit Co.'s leg with his hand because Co. had pulled a button off the seat of his vehicle but denied it was excessive. A Society worker interviewed C., Co., and Ca. who disclosed discipline by J.S. in the home including spanking and ear pulling. J.S. admitted to using spanking and ear pulling as a form of discipline. The police and CAS investigated. No charges were laid, and the Society cautioned him against using physical discipline.
[12] J.S. has another child, D. born […], 2016 who resides in the primary care of his mother A.M., with access to J.S.
[13] The current proceeding was instigated when Haldimand-Norfolk CAS contacted Oxford CAS on March 17, 2018 to advise they were involved in an investigation as a result of the mother of D. noting bruises on his buttocks when he returned from J.S.'s care after a weeklong visit. She took the child to the local hospital in Hagersville where bruises on the buttocks were noted that the attending physician opined were likely accidental rather than abuse.
[14] A Protection Proceeding before the court in that jurisdiction seeks to place D. with his mother under terms of supervision with access to J.S.
[15] Following the attendance at the emergency department, D.'s mother was directed to take the child for an assessment. D. was assessed the next day by Dr. Burke Baird, a staff pediatrician for the Child Advocacy and Assessment Program (CAAP) at McMaster Hospital. Photographs were taken as part of the assessment and Dr. Baird provided a written report dated March 21, 2018.
[16] Dr. Baird noted that D. had extensive bruising over most of the surface of both the right and left buttock with clear indications of parallel and linear patterning. Tests were conducted that ruled out a bleeding disorder as the cause of the bruising.
[17] Dr. Baird concluded that:
"The appearance of his buttock bruising is highly characteristic of injuries that result when a child is forcefully struck on the buttocks with an adult hand. Although not specific to this particular mechanism, his bruising is highly suggestive of this type of injury. Given that no plausible accidental mechanism of injury was observed to have occurred, his bruising is considered highly suspicious of being the result of significant inflicted trauma."
[18] Dr. Baird rejected that the mechanism of injury was consistent with the child falling out of a crib, and noted that, "a very high degree of force is required to cause such extensive bruising."
[19] It was the concerns raised by Dr. Baird that caused the applicant herein to begin investigating whether J.S.'s other children, J.Sh. and C.S. were in need of protection.
[20] As part of the investigation the Society worker interviewed Ca., Co., and C. again in March 2018 and they disclosed no concerns and reported no use of physical discipline by their caregivers since the Society involvement in January 2018, when they had made various disclosures related to physical discipline by J.S.
[21] The police interviewed J.S. and C.H. on March 20, 2018. The police later advised the Society that no charges would be laid.
[22] On March 20, 2018 Dr. Baird assessed J.Sh. and C.S. and no concerning marks were noted.
[23] The applicant commenced a protection application first returnable May 18, 2018 with respect to J.Sh. and C.S., seeking a finding that the children were in need of protection and an order placing the children with their mother subject to six months supervision with access to J.S. as arranged and at the discretion of the Society.
[24] J.S. has maintained his position throughout this matter that he is not responsible for any injuries to D. or that he uses excessive discipline on any of his children.
[25] On May 1, 2018 the court heard a temporary care and custody motion, and on May 4, 2018 Reasons for Judgment were released granting an interim order placing the children in the care of their mother subject to supervision of the Society with access to J.S. to include a minimum of three visits per week for two hours each visit, or otherwise a minimum of six hours of access per week.
[26] The court found that the applicant had satisfied its onus of establishing both that there were reasonable grounds to believe there was a real possibility that the children would likely suffer harm if returned to the care of J.S., and further that the children could not be adequately protected in his care under terms of supervision. The court concluded based on the evidence before it that the least intrusive order consistent with the adequate protection of the children was that they remain in the temporary care of K.M. with access to J.S.
[27] J.S. was of the view at that time (May 2018) that the bruises were caused by the child falling on a particular toy and provided various pictures. The pictures were provided to Dr. Baird, who requested either the measurement of the toys or to physically observe them. The toys were provided and Dr. Baird provided a further written report outlining his view that the toys could not be responsible for the injuries observed.
[28] By October 2018 J.S. began proposing that D.'s injuries were caused by him sliding down the stairs in the family home. The Society provided this proposed explanation to Dr. Baird who rejected that it could have caused the injuries. Dr. Baird concluded that, "a series of several inch falls onto subsequent stair treads during a sliding event could not plausibly account for what was observed on [D.'s] buttock" when he was assessed at McMaster on March 17, 2018.
[29] J.S. retained Dr. Warren who provided two critiques of Dr. Baird's reports. In the most recent report of Dr. Warren which was received by the applicant on April 15, 2019 he states, "… the linear marks on the left buttock I agree with Dr. Baird are more likely in relation to a single harsh slap, spank or grab mark to the left buttock…".
[30] Since the application was commenced access by J.S. increased over time and by the fall of 2018 had expanded to include alternate weekend overnight visits with check-ins.
[31] Currently the access occurs on alternate weekends from Friday to Sunday, and Mondays from 4 PM to 7 PM. The schedule is consistent with the children's views and preferences as expressed to the worker and their counsel.
[32] The worker reported ongoing concerns that J.S. has exposed the children to adult conversation including speaking negatively about their mother and regarding his child support payments. This is a concern that the children expressed both to the worker and their counsel.
[33] In support of the motion for withdrawal of the Protection Application the worker deposed that the withdrawal was appropriate at this time on the basis of the following:
No additional concerns of physical discipline have been noted or disclosed.
J.Sh. and C.S. are at an age where they can clearly articulate any concerns that may arise in the future.
J.S. and his partner have completed both streams of the Triple P parenting program and his partner has also completed the Supportive Mothering Program.
J.S. has completed the Caring Dads Program.
[34] Further, the Society was aware the parents have been actively trying to negotiate a resolution to a family court variation proceeding that has begun in the SCJ, wherein J.S. seeks a return to the shared custody arrangements and K.M. is seeking an order to reflect the current status quo.
[35] The motion for leave to withdraw was first returnable on June 11, 2019 and was adjourned at the request of the Society and supported by the OCL until such time as there was an interim order in the S.C.J. matter which mirrored the current status quo. I was advised on September 10, 2019 by counsel that there was an interim without prejudice order in place in that proceeding that mirrors the current schedule and on that basis all parties were agreeing to proceed with the motion for leave to withdraw and to argue the issue of costs.
[36] The Society takes the position that the SCJ variation proceeding is the more appropriate venue at this time for what has become in their view a custody and access matter, and that any remaining risks to the children can be managed by the parents without the involvement of the Society. In the absence of evidence of ongoing protection concerns, the Society sought withdrawal.
[37] None of the evidence provided in the affidavit in support of the withdrawal was disputed in J.S.'s responding affidavit which simply stated that he was content with the withdrawal of the protection application but not on a no costs basis.
[38] Counsel for J.S. submitted that when D.'s mother initially took him to the emergency department because of the bruises and before she was directed to attend CAAP the next day, the attending physician at that time reported he was of the view there was no abuse.
[39] Counsel further suggested that the Society did not properly obtain and consider this information or investigate what happened in D.'s mother's home between when J.S. dropped him off and the next day when she attended at CAAP. I took from this that J.S.'s position is now that the bruises could have been inflicted when D. was in his mother's care, after he dropped him off.
Law and Analysis
[40] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules. Mattina v. Mattina, 2018 ONCA 867.
[41] Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002 SCC, paragraph 25.
[42] While rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party, rule 24(2) specifically states that the presumption of costs to a successful party does not apply in a child protection case.
[43] An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. Berta v. Berta, 2015 ONCA 918 at para. 94.
[44] In making this decision the court has considered the factors set out in Rule 24(12) of the rules which reads as follows:
24(12) In setting the amount of costs, the court shall consider:
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party's behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
[45] Rule 24(5) provides criteria for determining the reasonableness of a party's behaviour in a case (a factor in clause 24(12)(a)(i) above). It reads as follows:
DECISION ON REASONABLENESS
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine:
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
[46] As this is a child protection proceeding additional considerations apply. In Children's Aid Society of Hamilton v. K.L., 2014 ONSC 3679, Justice Deborah Chappel sets out, in an excellent review of the case law concerning costs in a child protection case, that the court must consider the following:
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 obligation 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 those 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 very difficult to weigh and balance the evidence and predict the legal outcome.
Important factors to consider in deciding whether costs against a Society are appropriate include the following:
i. Has the Society conducted a thorough investigation of the issues in question?
ii. Has the Society remained open minded about possible versions of relevant events?
iii. Has the Society reassessed its position as more information became available?
iv. Has the Society been respectful of the rights and dignity of the children and parents involved in the case?
v. In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society's efforts to diligently carry out its statutory mandate of protecting children.
[47] The essential test for the appropriateness of an award of costs against a Society is whether the Society should be perceived by ordinary persons as having acted fairly. Children's Aid Society of Niagara Region v. W.D..
[48] The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a Society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection. It should not be dissuaded from the pursuit of its statutory mandate by costs considerations. Children's Aid Society of Ottawa-Carleton v. S..
[49] A child protection agency should neither be rewarded nor punished by an order for costs, but rather it should be held accountable. Children's Aid Society of Brant v. D.M.C. and J.C..
[50] The lens through which the Society's conduct is viewed is that of the properly informed, reasonable person, considering the Society's conduct and the prejudice caused to the child or parent by that conduct. Catholic Children's Aid Society of Toronto v. S.V., 2000 O.J. No. 5866 (OCJ).
[51] Once liability for costs is established in a child protection proceeding, the court must determine the appropriate amount of costs, having reference to the provisions of rule 24. Children's Aid Society of Hamilton v. K.L., 2014 ONSC 3679.
[52] As noted in B.(C.) v. Alberta (Director of Child Welfare), 2008 CarswellAlta 341 (Alta.QB), a Society has the following obligations:
Conduct a thorough investigation before acting.
Consider alternative measures for the protection of children before proceeding to court.
Continue its investigation up until the time of a final court determination in a vigorous, professional manner.
Treat all clients fairly and equally and with as much dignity as possible.
Reassess its position as more information becomes available.
Ensure that its workers are skilled in the performance of their roles.
Analysis
[53] I am not satisfied an order for costs is appropriate in this case, or that the Society has behaved in a manner that brings the Society or the administration of justice into disrepute.
[54] On the evidence before me I do not find that the Society failed to conduct an adequate investigation. I agree with Justice Murray in Children's Aid Society of Toronto v. K.M. and G.G., 2018 ONCJ 558, that an adequate investigation does not require perfection.
[55] In this case the Society did not simply rely on the allegations of D.'s mother but rather the opinion of Dr. Baird from the Child Advocacy and Assessment Program at McMaster Hospital, who provided a strong opinion with respect to the child's injuries.
[56] Further, each time J.S. proposed a different explanation the Society sought a further opinion from Dr. Baird who assessed it and reported back. I do not accept counsel's submission on behalf of J.S. that Dr. Baird's opinions amounted to "wild allegations". J.S.'s own expert, Dr. Warren concluded in his most recent report that with respect to, "the linear marks on the left buttock I agree with Dr. Baird are more likely in relation to a single harsh slap, spank or grab mark to the left buttock".
[57] The report from the emergency room visit at the hospital in Hagersville, which appears to have come to J.S.'s attention in April 2019, confirms that D.'s mother brought him in for an assessment and there was some degree of bruising noted. The attending physician's comment in the emergency room report that it did not appear to be abuse is not on its own determinative of the protection issues, or that the Society has been neglectful in his duties to investigate, particularly when considered in the context of the reports from Dr. Baird and most recently from Dr. Warren.
[58] The Society also conducted its own investigation into the circumstances surrounding the children who are the subject of this case and considered the recent protection history with the family concerning similar allegations which included disclosures by his partner's children about physical discipline by J.S.
[59] Intervention by the Society was warranted on the basis that there was sufficient evidence that one of J.S.'s other children suffered unexplained and non-accidental injuries while in his parent's care. The Society is of the view that the evidence supported that was inflicted by J.S., and J.S. is now of the view that it occurred in his mother's home. Either way it was evidence to support that the child was in need of protection, and given the previous involvement in January 2018 when J.S.'s partner's children all disclosed physical discipline by him, supported that the other children in his care were at similar risk.
[60] As such the Society had reasonable and probable grounds to initiate the Protection Application. The evidence at the time of intervention outlined a real risk given the level of concern reported by Dr. Baird with respect to another of J.S.'s children. The evidence supported intervention and ultimately supported the temporary care and custody order requested by the Society which was made by the court in written reasons released following a contested hearing after receiving evidence and arguments from all parties.
[61] The Society has also moved the case forward in a reasonable and timely way and attempted to work to mitigate the concerns by offering the appropriate programming.
[62] The Society exercised appropriate diligence by continually reassessing its position based on J.S.'s progress in programming, and on the circumstances of the children. Access progressed to include overnight and weekend visits subject to terms starting in the fall of 2018.
[63] When the Society determined that J.S. had progressed sufficiently and the circumstances of the children were such that it was no longer necessary to continue with court involvement, it acted appropriately by bringing a motion seeking leave to withdraw. The parties are currently engaged in a variation proceeding in SCJ to determine what if any variation should be made to the status quo which was in place prior to Society intervention. In the current circumstances this is the appropriate venue to resolve this issue.
[64] In all these aspects the Society has acted in a reasonable, timely, and appropriate manner in accordance with its mandate under the CYFSA. J.S.'s argument that the Society behaved in an incompetent and fallacious manner is not borne out by the evidence filed in support of the motion. I also note that in response to the Society's motion to withdraw without costs he provided virtually no evidence to support his position, and did not dispute any of the Society's evidence in its affidavit supporting the motion except to say that he agreed with the withdrawal but disputed the issue of costs.
[65] While there is no presumption of costs in the child protection proceeding under the rules, rule 24(2) does not eliminate the court's discretion to order costs in child protection matters.
[66] I am mindful that child protection agencies do not enjoy immunity from costs, however, I am of the view that a reasonable member of the public apprised of the evolving circumstances of this case and the legislative mandate under which the Society operates would not conclude that it has acted in a patently unfair or indefensible manner. Rather, the Society has approached this matter with due diligence and appropriately reassessed its position as the circumstances warranted, including ultimately seeking leave to withdraw.
[67] Having considered all these issues liability for costs against the Society has not been established and accordingly there shall be no order as to costs.
Released: September 23, 2019
Signed: "Justice S. E. J. Paull"