Superior Court of Justice – Ontario

Family Court

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

Court File and Parties

COURT FILE NO.: C110/13-01

DATE: July 4, 2013

RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant

AND:

D.P. and P.S., respondents

BEFORE: VOGELSANG J.

Counsel

Randolph C. Hammond for the Society

Brian Garlough for the respondents, D.P. and P.S.

Patricia Miller for the child, A.P.-V.P.

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[1] In starting this complicated proceeding, the Children’s Aid Society commenced a motion returnable March 5, 2013. The respondents were served late in the afternoon only the day before, March 4.

[2] In the motion, the Society sought temporary but emergency relief: first, a supervision order with terms and conditions; second, an order that a third-party medical expert review the many medical interventions which have taken place through the life of 12 year old A.P.-V.P.; third – as an alternative – a s. 54 assessment of the child, possibly to include an assessment of the respondents’ psychiatric or psychological condition and their ability to care for A.P.-V.P..

[3] Almost unbelievably, by the morning of March 5, 2013, Mr. Garlough and the respondents were able to prepare very lengthy responding materials. Mitrow J. provided a timeline for further material and adjourned the motion to a special appointment. His thoughtful written endorsement indicates to me that he was confused and doubtful about the position taken by the Society. He refused to make any of the “emergency” orders the Society sought for disclosure of medical information and immediate access to the child.

[4] The matter came on before me on April 30, 2013 with even more voluminous material. After argument, the Society motion was dismissed outright. I indicated that Ms. P. could clearly be a parent with whom teachers, a school principal and Board employees would deal with difficulty. She is of obvious high intelligence and fully committed to the best interests of her daughter A.P.-V.P. who, sadly, is subjected to myriad physical and emotional problems as a result of a rare genetic disorder. Ms. P. understands “the system” as few others could from her own experience on a Board of Education committee concerning special needs students. She knows how to deal directly – and, I am sure, bluntly – with senior management of the Board. She has successfully gained the help of the Provincial Advocate and various community support groups for her daughter.

[5] I discussed some of the authorities dealing with rule 24(2) of the Family Law Rules, O. Reg. 114/99 in Children’s Aid Society of London and Middlesex v. Tammy S.-V., 2013 ONSC 4517 (Sup. Ct.). In that case I cited Children’s Aid Society of Niagara Region v. B.(C.) (2005), 2005 32915 (ON SC), 20 R.F.L. (6th) 50, 2005 CarswellOnt 4414 (Sup. Ct.) as a case setting out the expectations imposed on a Society pursuing its statutory obligation to investigate and pursue proceedings. Included in those expectations are even-handed action conducted in good faith and an investigation that is objectively fair and reasonable.

[6] During argument, I suggested that the Society insistence that there was something possibly nefarious about “inconsistencies” between what Ms. P. described about her daughter and what the school authorities said they saw was misguided. It was quite apparent to me that the Society and its workers were acting throughout as a stalking horse for the Board. The requests for outside expert review or assessment represented nothing more than a fishing expedition.

[7] In this case, the Society investigation and position taken fell, in my view, far below the required standard of fairness and reasonableness and should attract an award of costs. As Kukurin J. pointed out in Children’s Aid Society of Algoma v. M.(R.) (2001), 2001 25594 (ON CJ), 18 R.F.L. (5th) 36 (Ont. C.J.) at para. 40, the fact that the caseworker or other Society employees maintained an honest and continuing belief that their efforts on behalf of the Board were justified has nothing to do with the test by which a costs issue is governed.

[8] I have carefully considered the draft bill of costs submitted by Mr. Garlough in the total amount of $17,645.81. I am mindful of the factors concerning quantum of a costs award set out in r. 24(11). In my view, a fair, appropriate and proportional award of costs against the Society – and one in the range an unsuccessful litigant could reasonable expect to pay – is $12,500 inclusive of recoverable disbursements and HST. The costs are payable in 30 days.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: July 4, 2013