ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-12-33
DATE: 2014/05/23
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF J.S., d.o.b. ([…], 1996), K. S. B. (d.o.b. […]1, 1997), K.B.S. (d.o.b. […], 1998), N.S. (d.o.b. […], 2000) and Z.S. (d.o.b. […], 2001)
BETWEEN:
CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
R.S. (the mother)
K.S. (the father)
Respondents
Judith Hupé, for the Applicant
Cedric Nahum, for the Respondents
Hana Ahmad-Yousuf, the Children’s Lawyer
HEARD: March 26, 2014 (at Ottawa)
DECISION ON CLAIM FOR COSTS
lalonde j.
Overview
[1] The family constellation consists of the mother R.S., the father K.S. and their five children, J.S. (d.o.b. […], 1996), K.S.B. (d.o.b. […], 1997), K.B.S. (d.o.b. […], 1998), N.S. (d.o.b. […], 2000) and Z.S. (d.o.b. […], 2001).
[2] The Application pertained only to the three youngest children, namely, K.B.S., N.S. and Z.S. The children were represented by Hana Ahmad-Yousuf.
[3] The mother and father are both represented by Cedric Nahum. The parents are requesting costs in relation to the Protection Application brought by the Children’s Aid Society of Ottawa (“the “Society”) on June 11, 2013. The Society is opposing the Respondents’ motion and filed a cross-motion seeking costs for this motion. I accept as accurate and reproduce the narration of proceedings as found in the Society’s factum.
Sequence of Events
[4] On June 6, 2013, the Society obtained a warrant to apprehend the three children K.B.S., N.S. and Z.S. because the Society had concerns that the mother, R.S., encouraged the children to steal for her.
[5] The Society obtained police reports which indicated that K.B.S. was arrested for stealing and possession of stolen property. R.S. was also arrested for possession of stolen property. The reports suggested that R.S. encouraged the children to steal for her for the money.
[6] The children were apprehended on June 6, 2013 and remained in CAS care until August 23, 2013.
[7] On June 11, 2013 the Society filed an application seeking an order that the children K.B.S., N.S. and Z.S. be placed in the care of the Society.
[8] The care and custody motion was argued on June 11, 2013 before Justice Kane who was satisfied that the children were at risk if immediately returned to the care of the parents.
[9] On June 6, 2013, the Society also obtained a warrant for access to records concerning R.S. from the Ottawa Police and the Society was informed that the Ottawa Police had extensive involvement with her.
[10] The application proceeded through court channels and was disposed of on a final basis on December 9, 2013. On that date, the Society agreed to withdraw its application and work with the family under the terms and conditions of a signed Voluntary Agreement. The Agreement is still in effect.
Brief History of Children’s Aid Society Involvement
[11] There is no reason to doubt the accuracy of the following events reproduced from the Society’s factum and so they are reproduced and used as a good narrative.
[12] The Society has had involvement with this family dating back to June 1996. There have been thirteen (13) file openings. The most recent file opening took place on August 31, 2011. The concerns relate to domestic violence, lack of supervision, attempted suicide on the part of the mother, parenting skills, sale and consumption of drugs. Also of concern is the family members’ involvement in illegal activities including theft and vandalism.
[13] The Society received six police reports concerning domestic violence and thefts committed by the mother between 2005 and 2006. The mother was charged for theft on two occasions during that period. She participated in a diversion program to avoid having a criminal record.
[14] In August 2011, K.S.B. reported that her mother was selling her prescribed medication and that K.B.S. was in charge of transporting and delivering the drugs. At the time of K.S.B.’s report, she had left the family residence and was refusing to return home. It was also reported that there was family violence between the parents.
[15] K.S.B. was placed in the care of the Society under a four (4) month Temporary Care Agreement on September 7, 2011. She was refusing to return home and claimed that she was scared.
[16] During that period of time, the Society also received a report from K.B.S.’s school that they suspected that he was dealing drugs from school. Several cell phones were found in his locker.
[17] On January 11, 2012, the Society obtained a temporary order placing K.S.B. in the care of the Society. The Society also obtained a temporary supervision order regarding the other children who remained in the care of the parents. The supervision order remained in place until September 10, 2012.
[18] On July 4, 2012, the Society obtained a temporary order placing K.S.B. in the care of her aunt and uncle, C.B. and A.B, under the supervision of the Society.
[19] In August 2012, K.S.B. decided to return home to the care of her parents under a Voluntary Service Agreement signed by the parents. The agreement also dealt with the other children in the care of the parents.
[20] On September 10, 2012, The Society withdrew its application regarding the children and terminated its supervision order regarding K.S.B., in favour of a Voluntary Service Agreement with conditions.
[21] On November 12, 2012, J.S. advised the Society that her boyfriend’s sister was hiding at her mother’s home. The police were searching for this person and attended the family home on two occasions and did find her on the second occasion.
[22] In January 2013, R.S. and K.S. advised that K.S.B., who was sixteen years of age, again left their home and she was residing with her new boyfriend.
[23] On April 24, 2013, the Society received a police report to the effect that R.S. had made threats to a sixteen year old girl.
Events Leading to the Apprehension
[24] On May 24, 2013, the Society was informed that K.B.S. and R.S. were arrested for possession of stolen goods. Police and workers were concerned that R.S. was telling her children to steal. K.B.S. would also encourage his brother Z.S. to steal. K.B.S. was being accused of stealing at school.
[25] On May 29, 2013, the Society received three (3) police reports regarding thefts committed by K.B.S. and Z.S. There was also a report dated December 2012 reporting that R.S. had asked one of K.B.S.’s young friends to steal for her in exchange for a small money contribution. Mrs. S. is alleged to have asked him to steal IPADs or IPHONEs and women’s clothes.
[26] In April 2013, K.B.S. was arrested for theft. According to the police report, K.B.S. was seen on the school security camera, interfering with the camera while other children, including his brother Z.S., were stealing school bags.
[27] On May 17, 2013, Constable Carr was called to the F[…] school concerning stolen objects. On that day, R.S. was seen at school delivering an IPAD to her son K.B.S. It was later discovered that the IPAD was stolen school property.
[28] Mrs. S. claimed that she had purchased the IPAD on the internet.
[29] On June 4, 2013, the school principal from F[…] School advised that following his arrest on May 23, 2013, K.B.S. did not attend school for nine (9) days. The mother was refusing to send the children to school, alleging that it was not a good school.
[30] On June 5, 2013, the worker was informed that both N.S. and Z.S. trespassed on school property during the week-end of June 1, 2013 and vandalized the school. The children broke windows and stole from the cafeteria. As a result, N.S. was suspended from school. Charges were later filed against the children.
[31] N.S. admitted to the worker that he attended the school and threw binders in the garbage. He claimed that his brother told him to enter the school.
[32] As a result of the information received, the Society obtained a warrant to apprehend the three boys.
Parents’ Position
[33] I have taken the parents’ position from the counsel’s factum. I will deal with counsel’s submissions not referred to here in the analysis and decision section of this decision.
[34] It is the position of the parents that in the case at bar, the Society acted unfairly in its treatment of the S. family from the commencement of this referral.
[35] Firstly, the Society failed in its duty to conduct a thorough investigation on the allegations before initiating proceedings. The Society not only failed to look for corroboration and/or independent evidence to support the bare allegation that R.S. encouraged her children to steal, but it also failed in its duty to provide the parents with an opportunity to be heard before apprehending the children.
[36] The Society has an obligation under s. 2 (2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 to ensure:
(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving; and
(b) that decisions affecting the interests and rights of children and their parents are made according to clear, consistent criteria and are subject to procedural safeguards.
[37] Though the Society met with the mother, the worker did not discuss all of the allegations with her or ask her to respond to the information provided. The worker failed to consider the mother’s version of events and consider it within the context of the information that it had received at the time. The mother’s version of events was not inconsistent with the information that the Society had received from independent sources.
[38] The Society failed to discuss the allegations with the father at all and did not meet with the father until after the children had been apprehended.
[39] Once the parents were given an opportunity to respond to the allegations, the children were returned home. This opportunity should have come prior to the removal of the children from the parents’ care.
[40] Within its internal documents, the Society acknowledged that it had not yet completed its investigation and that it had no evidence to confirm that R.S. was encouraging the children to steal.
[41] 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.”: Children’s Aid Society, Region of Halton v. A.R., 2011 ONCJ 681, [2011] O.J. No. 5627, at para. 66 citing CAS Waterloo v. B.Z., 1996 4742 (ON CJ), [1996] O.J. No. 4245.
[42] The Society did not act fairly or reasonably in the case at bar. The Society relied wholly on the family’s history of unsubstantiated allegations and on current unsubstantiated allegations against R.S. and the three children to apprehend the children and separate the family. The Society adopted an “apprehend first, ask questions later” approach; one that demonstrated patented unfairness to the S. family.
[43] 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: Children’s Aid Society, Region of Halton v. A.R., at para. 66.
[44] A Society must be even-handed and act in good faith. To this end, a Society must be prepared to re-assess its position as an investigation unfolds and more information becomes known. However, a Society’s re-assessment and change of a position that was unfair and unreasonable in the first instance, only mitigates the initial unfairness: Children’s Aid Society of the Niagara Region v. C.B. (2005), 2005 32915 (ON SC), 20 R.F.L. (6th) 50 at para. 96 (Ont. Sup. Ct. (Fam. Div.)).
[45] K.S. and R.S. maintain that the Society’s initial position that the children were in need of protection was wholly unfair and unreasonable. The original concerns were merely the product of hunches. Nowhere in the Protection Application is there any mention of corroboration or independent evidence that R.S. encouraged her children to steal.
[46] The Society bolstered its allegations that the mother was encouraging the children to steal by implying that the mother was of otherwise bad character by incorporating into their materials allegations that the mother was involved with person’s wanted by the police, had a history of police contacts and had threatened her son’s ex-girlfriend.
[47] The information that was provided was misleading in that it failed to disclose that: (1) the mother’s prior police contacts were primarily as a young person, more than 12 years ago; (2) that the mother had no adult criminal record; (3) that the woman that the mother had been allowing into the home that was wanted by the police was a young person who had run away from home because of allegations of abuse; (4) that the mother was co-operating with the police; and (5) further, that the allegations of threat by the mother to the son’s ex-girlfriend were denied by the alleged victim and had only been reported to the police by the child’s grandfather who was not present when the threats would have been made.
[48] The factum of the parents goes on to excerpt the following paragraphs from Children’s Aid Society of the Niagara Region v. C. B:
The justice of the peace must rely on more than mere conclusions of the worker seeking the warrant. The task of the justice of the peace is to make a practical, common-sense decision about whether (given all the circumstances set out in the sworn affidavit, including the veracity and basis of knowledge, if any, of the tipster or any person supplying hearsay information) there is a reasonable probability that a child is in need of protection. A worker swearing an affidavit in support of a request for a search warrant is required to have a subjective belief that reasonable grounds exist for the warrant and that believe, in turn, must be objectively reasonable. (Para. 62)
Under subsection 40(2), the justice of the peace is an impartial arbiter who must assess the request for a warrant and determine, first, whether there are “reasonable and probable grounds to believe” that there is evidence a children “is in need of protection.” Suspicion and conjecture are insufficient. Warrants are not intended to be the product of hunches. Second, the justice of peace must determine whether there are “reasonable and probable grounds to believe” that a less restrictive course of action is not available or will not protect the child adequately. (Para. 68)
A Society should not be punished for a mere error in judgement in carrying out its difficult and important statutory function. However … [a]n error in judgement can truly arise only where one has considered all courses of action reasonably available at the time... (Para. 94)
A warrant is not an investigative tool. Instead, it follows and is the result of, an investigation. (Para. 71)
Mere suspicion, on the part of a worker, that a child is in need of protection, is not sufficient. A suspicion must be supported by disclosure of the cause of the suspicion before the justice of the peace can be satisfied that reasonable grounds exist for believing that a child is in need of protection. (Para. 73)
[49] In the case at bar, before obtaining a warrant to apprehend the children, the Society made no effort to determine if there was a least restrictive course of action that would adequately protect the children. The Society was too quick to jump to conclusions in this case and acted unfairly and unreasonably in resorting to the most drastic measures; removing the children from the S. family home. The actions and inactions of the Society went much farther than a simple error in judgment and merit an adverse award of costs against it.
[50] The parents submit that the Society’s Protection Application only points to the police reports which “suggest that Mrs. S. encouraged her children to steal for her money.” Neither at the time of the apprehension nor afterwards was this suspicion grounded in reality. From the beginning the Society acted on utterly unsupported conjectures, which were never substantiated and ultimately resulted in the Society withdrawing its application. What is more, the Society’s actions in apprehending the children on a mere suspicion exacted a most devastating toll on the S. parents; it took their children away.
[51] As a result of the indefeasible conduct of the Society, R.S. and K.S. request that they should be compensated by obtaining an award of costs against the Society in the amount of $4,250.70 for fees, disbursements and H.S.T.
The Society’s Position
[52] The Society requests that costs should be denied as its statutory duties and obligations were met. The Society claims that there was no sub-standard conduct or lack of conduct by the Society in its handling of the S. file that would require a costs award to attempt to repair defective investigatory conduct.
[53] The Society argues that the children’s parents had a full opportunity to immediately protest the Society’s so called sub-standard investigation. The Society noted that although it is rare for parents to argue against the Society on a first Apprehension Application, the parents in this case did that on June 11, 2013 on the care and custody motion. The children had been apprehended on June 6, 2013. They also filed a response to the Society’s materials for that date.
[54] I am reproducing part of the Society’s factum to highlight its answer to the motion for costs. I will deal with the oral arguments advanced by the Society at the hearing in my decision.
[55] The Society’s counsel points out that Justice Kane heard the motion and ruled on it on June 12, 2013. Justice Kane found that “the Society had placed sufficient evidence before the court to establish that the 3 boys were at risk of emotional and or physical harm in the care of their parents.” Further, Justice Kane found that “[t]he emotional harm is aiding or permitting these boys to be involved in criminal activity. The risk of physical harm to these boys is the possibility they will be injured during or as a result of such activity and possibly convicted of a criminal offence at their young age.” He also added that “there is sufficient evidence to support a possible connection between the mother and the theft activity of the boys. Direction no longer exists in the home.”
[56] On June 13, 2013, the parents confirmed that they had made bad choices when they were younger. K.S. indicated that he stole when he was young. R.S. also indicated that she had also stolen in the past. K.S. admitted that he had a criminal record.
[57] Following the children’s placement in CAS care, the Society was informed that Z.S. had missed 31 days of school that year.
[58] On July 15, 2013, Micheline Cayer from the CAS, the contact with the Ottawa Police Services, advised that she had not yet received the requested police records as per the warrant signed on June 6, 2013. Ms. Cayer contacted the Ottawa Police and she was informed that the Ottawa Police had over 40 reports regarding R.S. and that it would take them some time to vet.
[59] On July 17, 2013, the Society received seven (7) reports of a possible forty (40). The Society received reports of domestic disturbance which took place in August 2011, an assault call in March 2011, traffic suspension and traffic complaints in March 2009. The report of April 3, 2013, pertained to a complaint for threats and harassment made by R.S. towards a third party. R.S. was informed that if one more complaint was made to the Police regarding threats and or intimidation made by her she would likely face criminal charges.
[60] By August 7, 2013, the Society had not yet received the missing police reports despite repeatedly asking for them.
[61] Prior to the apprehension of the S. children:
(a) K.B.S. has been charged for breaking and entering in his school, mischief and possession of stolen property. He went to court on June 24, 2013 and he refused to go into a diversion program at the time.
(b) He has since reconsidered and just recently completed a diversion program. As a result, the criminal charges against him have been withdrawn.
(c) N.S. was also being charged with breaking and entering in his school, theft and mischief under $5,000 dollars. He completed a diversion program and the criminal charges pending against him were withdrawn.
(d) Z.S. was also charged with breaking and entering at F[…] School, theft and mischief under $5,000 dollars. He completed a diversion program and the criminal charges against him were withdrawn.
[62] The above events warranted action to protect the children if the Society was to fulfill its mandate.
[63] On July 18, 2013, the Society received the criminal record of K.S. which indicates that he was convicted of mischief; fail to comply with recognizance in 1994. In 1997 he was convicted of theft, fail to comply with recognizance. In 1999 he was charged with attempted robbery. He got an 18 month conditional sentence plus probation for two years. That information had been requested by the Society prior to the apprehension.
[64] On August 8, 2013, R.S. advised that the charge of possession of stolen goods laid against her had been withdrawn as she also completed a diversion program which consisted of attending one education session at Elisabeth Fry and that she was going to see a counsellor there.
[65] On August 9, 2013, Constable Carr of the Ottawa Police advised that R.S. was no longer under investigation and that her charge of possession of stolen property was withdrawn as she participated in the diversion program.
[66] The social worker assigned to the S. file was told by Constable Carr that the Ottawa Police continued to have concerns regarding this family because of a long history of involvement with the Ottawa police. She indicated that in 2006, three charges for theft were laid against R.S. In 2009 and 2012, the Ottawa police were involved again with R.S. in relation to fraud allegations. There was also another involvement in 2013 pertaining to theft. No charges were laid in relation to the last three involvements.
[67] Following the apprehension, the parents advised the Society that they were committed to following the Society’s expectations in order to have the children returned to their care.
[68] R.S. and K.S. agreed to see Hélène Renaud for counselling. R.S. also agreed to see Mrs. Delic. The worker also recommended that they obtain services through the Family Service Centre for services in the home to help them with the family routine. The parents signed consents allowing the Society to connect with their service providers.
[69] As a result of the parents’ cooperation and the absence of new referrals, the Society filed an Amended Child Protection Application requesting that the children be returned to the care of their parents under terms of a supervision order.
[70] On August 23, 2013, on consent of the parties, an order was made by Justice Mackinnon returning the children to the care of the parents under terms and conditions of a Temporary Supervision Order.
[71] Following the order, the worker was able to meet with the family members on a few occasions (approximately every three weeks). The children did not report any concerns following their return home. The children and mother reported that they have seen Roxanne Landreville for the diversion progress.
[72] Shortly following the order of August 23, 2013, R.S. terminated all the consents signed in the past, which allowed the worker to speak to the Service providers regarding the family’s progress.
[73] Since October 8, 2013, the worker has been in touch with the children’s school on a few occasions. The school professionals reported that the children appear to be stable this year, their school attendance has improved, the children’s behaviours are good and Z.S. is progressing well.
[74] The children all reported that things at home have improved. They stated that the parents were working on setting limits and consequences. The children were assigned chores. They reported that overall, the family environment was calmer.
[75] In light of the improvements observed and the parents’ commitment to work with the Society on a voluntary basis, the Society, with the consent of the parents withdrew its application on December 9, 2013 in favour of a written and signed four (4) month Voluntary Agreement. The agreement is still in force as of this date.
Analysis and Decision
[76] O’Connor J. in Children’s Aid Society, Region of Halton v. A.R., at para. 68 summarized the principles that can be gleaned from the case law on the issue of costs as listed by McSorley J. in A.M. v. Chatham-Kent Integrated Children Service Children’s Aid Society, 2006 ONCJ 555, [2006] O.J. No. 4522 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 fulfil 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.
[77] I am keeping these principles in mind in rendering my decision in the case at bar.
[78] There is no presumption that a party is entitled to costs in a child protection case or if a party is a government agency: Rule 24(2) of the Family Law Rules, O. Reg. 114/99. Under Rule 24(3), it is within my discretion to award costs against a party that is a government agency. Rule 24(8) provides that the court shall order a party to pay costs if a party acted in bad faith. In Kingston v. Ghoura, 2007 CarswellOnt 1927 at para. 10 (Ont. Sup. Ct.), Wildman J. adopted the following definition of bad faith:
Bad faith is not simply bad judgment or negligence but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative ideal of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.
[79] For the reasons that follow, I find that there was no bad faith exhibited by the Children’s Aid Society’s social workers towards the parents R.S and K.S. In the result, I am not obliged under Rule 24(8) to award costs against the Society in this matter.
[80] As per the jurisprudence cited above at para. 76, I recognized that a finding of bad faith is not required to attract an adverse costs award against the Society and the appropriate standard upon which I am to make a determination as to the entitlement to costs is whether an ordinary person would perceive the Society as having acted unfairly. The existence of other orders (such as that of Justice Kane and Justice Mackinnon) or voluntary agreements between the Society and the parents is not directly relevant to the parents’ entitlement to costs however these factors form part of the overall circumstances in which the court must determine whether or not the Society can be perceived to have acted fairly.
[81] In this case, I cannot conclude that the public at large would find that the Children’s Aid Society’s conduct was unfair in handling this file in the way it did in initially apprehending the children or in its dealings with the family subsequent to the apprehension. To the contrary, I find that the public at large would be surprised at how many public funds and how much effort has been expended by the Children’s Aid Society to assist in calming and stabilizing this family unit and improving the daily routine in the S. home. As Kane J. stated in is endorsement, it was the Children’s Aid Society’s role to prevent the three boys from engaging in criminal activity.
[82] This case has not been handled in an indefensible manner by the Children’s Aid Society. The Children’s Aid Society has a statutory obligation to initiate and pursue proceedings if there is a reason to believe a child is in need of protection and it should not be dissuaded from its role just because parents will sue them for costs. The Children’s Aid Society is not obliged to go behind the conclusions and reports of the officers of the Ottawa Police Services before it can apprehend children as it happened in this case. The Children’s Aid Society had to act quickly and it was not in its mandate to wait and see if something harmful would have happened to the three boys: Children’s Aid Society of the Niagara Region v. C.B. at para. 42.
[83] When counsel for the parents alleges indefensible conduct by the Society to justify its apprehension of the three boys, he ignores that the Society has had 13 file openings on this family since 1996. I find that this is proof that the S. family needed help and that the Society had reasonable grounds to believe that the children in the home were in need of protection.
[84] In his factum counsel for the parents states at para. 76 “… the Society’s Protection Application only points to the police reports which suggest that Ms. [S.] encouraged her children to steal for her for money.” I understand counsel to be arguing essentially that these police reports are based on uncorroborated information and are thus insufficient to establish the existence of “reasonable and probable grounds” that the children were in need of protection. I strongly disagree with counsel’s position that the Society has to go behind the multiple police reports to further investigate the allegations. The Society would never have enough resources to administer the thousands of cases they handle in this jurisdiction if such was the standard of investigation.
[85] At the time of the apprehension on June 6, 2013, the Society learned:
• That K.B.S. had been charged with a break and enter and theft at his school (April 2013).
• That K.B.S. and his mother R.S. were arrested for possession of stolen goods. The police were concerned that R.S. was telling her children to steal and that K.B.S. was encouraging his brother Z.S. to steal. (May 24, 2013);
• That there were three police reports regarding thefts committed by K.B.S. and Z.S. dating December 2012, April 2012 and May 2013 (Society in receipt of police reports May 29, 2013);
• That there was also a police report dated December 2012 reporting that R.S. had asked one of K.B.S’s young friends to steal for her (Society in receipt of police report on May 29, 2013);
• That K.B.S. had missed nine days of school and R.S. had refused to send the children to school stating that it was not a good school (June 4, 2013);
• That N.S. and Z.S. had trespassed, vandalized and stolen school property (June 1, 2013, Society informed of offences on June 5, 2013). Charges were later filed against the children in respect of these offences.
Moreover, six months earlier the Society had tried a less obtrusive way to deal with this family and obviously it had not worked. It is reasonable to conclude that had the Society not apprehended the children there would not have been cooperation on the part of the parents
[86] In assessing whether there existed “reasonable and probable grounds” in this case, it is useful to look at the criminal law jurisprudence: Children’s Aid Society of the Niagara Region v. C.B at para. 36. In the criminal context, the case law is clear that judges must look at the totality of the evidence to form an opinion concerning the existence of the statutory grounds. This was not a case where the Society worker had a “mere suspicion”. In this case the worker’s belief that the children were in need of protection was based on the police reports it recently received as well as the Society’s history with the family. The police reports constitute a sufficiently reliable source of information. The Justice of the Peace is entitled to consider hearsay evidence in support of the warrant application: Children’s Aid Society of the Niagara Region v. C.B at para. 69. The information sworn in support of the warrant for apprehension was not false or misleading. Even if ex post facto it was determined that some of the information relied on by the Society was incorrect, this does not necessarily affect the reasonableness of the worker’s belief that the children were in need of protection at the time the warrant application was made. The fact that the Society ultimately entered into a Voluntary Agreement with the parents and amended its application is indicative of the Society’s willingness to re-assess its position and deal with the parents fairly. It is in no way relevant to the reasonableness or fairness of the Society’s initial belief that the children were in need of protection.
[87] In this case, it is clear that as at June 6, 2013, an objective observer would have concerns that the children may suffer serious emotional or physical harm as a result of the parents either encouraging them to engage in criminal activity, or the parents failing to properly supervise the children thus allowing them to engage in criminal activity. The Society’s investigation may not have been perfect but I find that it was a fair investigation considering its mandate which is not to prove anything beyond a reasonable doubt but to establish that there is a reasonable probability that the children require protection from emotional and physical harm.
[88] I fail to understand why the parents would think that the Society was acting in an indefensible manner in apprehending their three boys on June 6, 2013. I find that it is easy to understand Kane J.’s decision that the children were at risk both emotionally and physically of suffering harm from either being encouraged to commit crimes or engaging in criminal activities due to a lack of supervision and/or guidance from their parents. The Society, in my view, would have been derelict in its duty had it not apprehended the children. All three boys were involved in criminality at the time.
[89] The Society was entitled to rely on the police reports it received prior to June 6, 2013 to form the basis of its belief that the children were at risk. This is not a case like Children’s Aid Society of the Niagara Region v. C.B which is relied on by Mr. Nahum. In that case, the facts were completely different from the case at bar and I find that the conclusions in that case rested on specific facts. In Children’s Aid Society of the Niagara Region v. C.B, the apprehension was made without a warrant in a non-emergency situation. The Society’s worker was acting on an anonymous tip regarding three children possibly in need of protection. In ultimately awarding costs against the Society, Quinn J. found that the warrantless apprehension was unlawful. This finding was based on the fact that any potential harm faced by the children was non-imminent and the fact that the anonymous tip was in no way investigated by the Society before apprehending the children.
[90] In contrast, in this case, the Society obtained a warrant. The information relied on to obtain the warrant can hardly be said to be equivalent to an “anonymous tip” requiring further levels of verification. As stated above, I find that the Society’s reliance on the multiple police reports involving the S. family was both reasonable and sufficient to meet the statutory preconditions for the warrant authorizing the apprehension in this case. It can hardly be said that when acting in accordance with a lawfully obtained warrant, the Society was acting unfairly. In addition, the lawfulness of the warrant would not have affected the jurisdiction of Kane J. to deal with the child protection matter before him and he would have acted on counsels’ arguments at the contested apprehension hearing: Children’s Aid Society of Algoma v. R.S., 2013 ONCJ 688, [2013] O.J. No. 5606 at para. 51; Children’s Aid Society of the Niagara Region v. C.B. at para. 77.
Order
[91] In the result, I dismiss the parents’ application for costs against the Society.
[92] I also dismiss the Society’s cross-motion for $1,500 in costs for the principal reason that its factum was a mere recital of the social worker’s affidavits and fails to address the issues involved. The court is entitled to receive the Society’s arguments regarding why its actions were not unfair and nor indefensible within the meaning of the case law. A proper factum is always required.
Mr. Justice Paul F. Lalonde
Released: May 23, 2014
BETWEEN:
CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
R.S. (the mother)
K.S. (the father)
Respondents
DECISION ON CLAIM FOR COSTS
Lalonde J.
Released: May 23, 2014