CITATION: Children’s Aid Society of Ottawa v. T-L., 2015 ONSC 1664

COURT FILE NO.: FC-11-916

DATE: 2015/03/16

ONTARIO

SUPERIOR COURT OF JUSTICE

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 S.T-L. (d.o.b. […]/96); K-E.T-L. (d.o.b. […]/03); C. T-L. (d.o.b. […]/06)

BETWEEN:

Children’s Aid Society of Ottawa

Applicant

– and –

L.H. and O.T-L.

Respondents

Tracy Engelking, for the Applicant

Self- Represented

HEARD: February 3, 4 and 5, 2015

additional reasons for decision

beaudoin j.

[1] On September 16, 2014, Justice Jennifer Mackinnon directed that three days be set aside for Mr. T-L to argue his claim of costs of over $100,000 against the Children’s Aid Society of Ottawa (“CAS”) also referred to as (“the Society”), and against Ms. H, the mother of their three children. Mr. T-L was given two hours to make submissions for costs arising out of the alleged CAS failure to properly investigate or re-evaluate its case during the period between April 2011 to and including July 12, 2012 when the Family Court Clinic Assessment was delivered. A further day was to be allocated for the balance of the time with regard to CAS involvement and Mr. T-L was given an additional two hours to prove his Bill of Costs. Mr. T-L was required to file a compendium containing the specific portions only of the CAS file and the court record that he would rely on.

[2] Mr. T-L filed a Notice of Motion and delivered a 215 paragraph affidavit with 32 tabs of documents and exhibits. He then delivered an amended affidavit of equal length. Rather than delivering a compendium as directed, Mr. T-L delivered a 19 page document which contained an itemized list of all of the documents that he would be referring to but his compendium did not include the actual documents. I advised Mr. T.L. that this was not a proper compendium and he subsequently corrected this the next day by delivering two volumes of documents. He also delivered an extensive Factum and a Book of Authorities. While I had hoped that Mr. T-L’s revised compendium would not require a closer examination of the 7 volumes of the Continuing Record that did not prove to be the case.

[3] The hearing commenced on February 3, 2015 and Mr. T-L immediately raised a preliminary issue with respect to disclosure. He maintained that the CAS had not disclosed an audiotape that it had in its possession. He claims that Ms. H, the children’s mother, had provided an audiotape of a conversation with their daughter. The CAS worker had made a transcription of that conversation which had been disclosed to him. Nevertheless, he maintained that there was an audiotape in existence and that the hearing could not proceed without that evidence being provided to him. He accused the Society of concealing the evidence.

[4] Ms. Engelking, on behalf of the CAS, indicated that the Society had provided full disclosure to Mr. T-L and that she had repeatedly invited Mr. T-L to bring a motion before the court before the hearing was to commence. She pointed out that Mr. T-L had over four months to bring such a motion and that he had not done so. I was prepared to adjourn the motion with costs thrown away to the CAS. Ms. H then advised the court the audio conversation had been recorded on her smart phone which she no longer had in her possession. She also confirmed that the worker did not keep a copy of the audiotape but merely transcribed the content of the conversation. Mr. T-L then abandoned his objection and the hearing proceeded.

[5] At the end of the hearing, I dismissed Mr. T-L’s claim for costs as against both the CAS and the mother. At first, Mr. T-L argued that he had not sought costs against Ms. H until it was demonstrated to him that his materials clearly revealed otherwise. I ordered him to pay her costs in the amount of $600 which represented the income she lost for having to attend the three days of the hearing. I indicated to Mr. T-L that I would provide these additional written reasons and I reserved on the Society’s cross-motion for costs in the amount of $6,000.

[6] Mr. T-L’s argument for costs is based on his interpretation of Justice Harper’s decision in the Children’s Aid Society of London and Middlesex v. C.D.B., 2011 ONSC 5853, 210 A.C.W.S. (3d) 163. He argues that the CAS failed to observe its duties as an entrusted statutory litigant; that it failed to properly carry out its responsibilities under the Child and Family Services Act, R.S.O. 1990, c. C. 11 (”CFSA”) and that the CAS failed to properly assess the alleged protection concerns on their merit. He characterizes the CAS’ actions as being unfair, exceptional or indefensible.

[7] He clearly believes that a conspiracy or some collusion existed between the Ottawa Police Services, the children’s teachers, the daycare providers at K. and C.’s daycare, the mother and the Society which was aimed at ensuring the children’s mother, Ms. H. would obtain custody of the children.

Background

[8] The factual and procedural background relating to Apprehension is set out in in the affidavit of Ivana Ljubic, the child protection worker sworn on April 20, 2010 and her notes. Although Ms. Ljubic was extensively cross-examined by Mr. T-L’s former counsel on two occasions, her evidence has not been seriously contradicted or undermined by the transcripts of those examinations or by other notes and records in the file. I review this evidence in detail in the light of T-L’s allegation that the CAS did not conduct a proper investigation.

[9] The family in this case consists of the mother, Ms. H, the father Mr. T-L, and the children: S, born […], 1996, K, born […], 2003 and C, born […], 2006.

[10] The Society began working with the family following an incident of domestic violence on December 2, 2010 which incident was reported to the Society by the Ottawa Police. S had phoned the police after claiming that he had witnessed his father hit his mother over the back of the head. As he ran upstairs to call the police, he alleged that his father ran after him and slapped him across the face twice. Mr. T-L was arrested and charged with two counts of assault. He was released on conditions of no contact with the mother and the child.

[11] On the same date, a Society worker, Michelle Evans, contacted Ms. H and they met in the presence of Ms. H’s lawyer. On December 9, 2010, Ms. Evans spoke with Detective Leanne Smith of the Ottawa police. Detective Smith detailed her concerns for the children in the family.

[12] On December 13, 2010, Ms. Evans attended the Ottawa police station and listened to the 911 call that S had made on December 2, 2010. Mr. T-L could be heard yelling in the background. S stated to the operator that he needed the police. The phone was then hung up. The 911 operator called back and the phone was answered by Ms. H. Ms. H was crying throughout the conversation and yelling could be heard in the background.

[13] On December 21, 2010 Ms. Evans met with Mr. T-L. He denied having harmed his wife in any way. He admitted to struggling with S to try to remove the telephone from his hand but denied hitting him. Ms. Evans had contacts with the family on December 22, 2010, December 23, 2010, December 29, 2010, and December 30, 2010. On January 11, 2011, Ms. Evans received a voicemail from Mark Holmes from the New Directions program who indicated that Mr. T-L had participated in their treatment program.

[14] On January 28, 2011, Ms. Evans was subpoenaed to testify at a bail variance hearing for Mr. -T-L. She reported to the court that Mr. T-L had started a parenting class. She did not feel, however, that there had been significant changes in the whole. Ms. H filed an affidavit wherein she recanted her allegations of assault and indicated to the court that she wanted Mr. T-L to return to the home.

[15] On February 2, 2011, Ms. Evans received a voicemail from the Victim Witness Assistance Program advising that Mr. T-L had pleaded guilty with respect to the assault on S and had received one year probation.

[16] On February 15, 2011, Ms. Evans received a voicemail from Michelle Bentley, a counsellor at Christian Counselling. Ms. Bentley had been working with Mr. T-L and she was impressed with the way he had made changes in his parenting style.

[17] On March 28, 2011, the Society received a referral from the Montfort Hospital. The worker was advised that Ms. H had been brought to the hospital by an ambulance after taking an overdose of sleeping pills.

[18] On March 30, 2011, the Society learned that Mr. T-L had reported to the police that Ms. H had tried to poison him by giving him coffee laced with sleeping pills.

[19] On the same date, Ms. Evans met with Ms. H at the hospital. Ms. H advised that Mr. T-L had gone to visit her at the hospital and that he had been abusive. She indicated that she would not return home but would stay with a friend instead. On the same date, Ms. Evans spoke with hospital staff, Josée Chouinard, who advised that Ms. H’s doctor did not feel that she was at risk to herself or to her children.

[20] The next day, Ms. Evans received a voice message from Ms. H. She had been released from hospital and was making arrangements with the police to attend her home to pick up her belongings.

[21] On April 1, 2011, Ms. Evans received a voicemail from Mr. T-L. He did not want Ms. H to have access to the children unless they were supervised visits. On the same date, Ms. Evans received a phone call from Ms. H. She had gone to the home with the police to retrieve her belongings. She claimed that Mr. T-L refused to give her personal belongings, although, the police eventually forced him to do so. She reported that Mr. T-L had been belligerent to the police and that a report was going to be provided to Mr. T-L’s probation officer.

[22] On April 5, 2011, Ms. Evans received a voicemail from Mr. T-L stating that he spoke with his lawyer and had advised him that he should be present when Ms. Evans spoke to the children. On the same date, Ms. Evans met with Ms. H who had also retained counsel. Family court proceedings were in place by this time.

[23] On April 6, 2011, Ms. Evans attended a home visit with Mr. T-L and the children. She spoke to him about the importance of not involving the children in discussions about the situation with his wife. She noted that the home environment was clean and appropriate. On the same date, Ms. Evans met privately with S. S claimed he knew that his mom had tried to poison his dad and that his mother had tried to commit suicide. He stated that his dad had told him about these issues. Ms. Evans also spoke with K who indicated that she was missing her mother and wanted her mother to return to the home.

[24] On April 8, 2011, Ms. Evans received a phone call from Ms. H. She spoke to her again on April 13, 2011 as she had returned to the house again with the police to pick up more of her belongings. On April 14, 2011, Ms. Evans received a further phone call from Ms. H who indicated that she was worried about the children and their safety in Mr. T-L’s home. Another phone call from Ms. H on April 15, 2011 indicated conflicts in the home were continuing.

[25] On April 18, 2011, Ms. Ljubic received a phone call from Constable Jeff Daunt with the Ottawa police. He had attended K and C’s school and had spoken to school staff. The teachers, the daycare provider and the principal reported that they had history of verbal aggression by Mr. T-L towards staff of the school. The school suspected that Ms. H was a battered spouse due to the level of aggression they had witnessed from Mr. T-L. The staff was worried about the safety of the children when they do not attend school. The staff also reported to Constable Daunt that the children were making statements such as “mom is dead to us.” The daycare provider reported that C had attended school in January with a sore eye and told her that his father had hit him and spanks him all the time.

[26] Ms. Ljubic spoke with Constable Daunt again. Constable Daunt expressed serious child protection concerns to Ms. Ljubic regarding the current state of affairs in the household. Indeed, in the first telephone call, he indicated to Ms. Ljubic that he was “afraid of murder suicide because police contact was increasing”, and, in the second telephone call, he advised Ms. Ljubic that he was “thinking of apprehending the children myself.” Constable Daunt provided Ms. Ljubic with information regarding those with whom he had spoken at that point, that being teacher, Cindy Simpson, and childcare provider, Jennifer Tessier. He also advised Ms. Ljubic of eight police contacts with the family since December of 2010. In the second call, Constable Daunt outlined what and when those contacts were, namely, December 2, 2010, December 3, 2010, March 28, 2011, March 31, 2011, April 1, 2011, April 3, 2011, April 7, 2011, April 13, 2011 and April 15, 2011 (these actually total nine). Constable Daunt also let Ms. Ljubic know that he was not comfortable with what he was seeing and expressed his concern that “something terrible could happen.”

[27] On April 18, 2011, the Society received an anonymous phone call from the daycare that C attends. The reference stated that Mr. T-L had been verbally aggressive with the daycare staff to the point where the staff requested that he sign a contract that he will control himself while at the daycare. The daycare staff had also witnessed the father yelling at other children at the daycare. The daycare staff reported that C had earlier reported that an ambulance had been to the home to take his mother to the hospital. C said that his father told him that his mother was dead and not coming back. Mr. T-L told the daycare staff that the mother had attempted suicide. Daycare staff had noted that C had had some scratches and a bruise on his side two weeks earlier. C said this happened when the father was rough with him in the bath.

[28] An April 18, 2011, Ms. Ljubic met with the principal of the school for C and K. The principal, Cindy Simpson, reported that the school had concerns regarding Mr. T-L’s aggressive behaviour toward school staff.

[29] On the same date, she met with Marie Melanson, C’s childcare provider. She described challenges that the daycare had had with Mr. T-L in the past. She described incidents where Mr. T-L had been verbally aggressive toward her and others at the daycare. C had told them that he was not allowed to talk to his teachers about his mom. Daycare staff observed that C had become recently more distant from the daycare staff.

[30] Ms. Ljubic then met with K’s teacher, Jenny Labelle. She reported, two weeks earlier, K had come to the school upset stating there was blood in the bathtub and mommy had gone to the hospital. She also reported that her father had told her that her mom was “dead to them.” Ms. Labelle reported conversations between herself and Ms. H. where Ms. H. reported that she was in an abusive relationship.

[31] On that date, K had reported to Ms. Labelle that the police had been at her home again on the weekend and that her mom, brother and dad were arguing. Ms. Labelle described K as presenting anxious at school lately.

[32] On April 19, 2011, Ms. Ljubic met with K at her school. K described arguments in the home between Ms. H and S. She stated she did not feel safe at home because her mother was not there. Ms. Ljubic then met with C who also described arguments between Ms. H and S. While discussing discipline, C stated that his dad spanks him on his behind with the spoon and hits K on the back with the spoon.

[33] On that date, Ms. H had attended the school to see the children while Ms. Ljubic was interviewing C. Ms. H reported that she had returned from court and her custody motion had been postponed. She said that Mr. T-L was not providing her with regular access and that she came to school to see the children because, otherwise, she would not get to see them regularly. She reported that her older son had been lashing out at her and using words that Mr. T-L uses towards her. She believed that S had been “brainwashed’ by his father.

[34] Ms. H repeated that Mr. T-L had hit her and S on December 2, 2010. Due to the children being exposed to a significant amount of conflict and a concern that Mr. T-L’s behaviour was escalating, the Society arranged for Ms. H and the children to be brought to a place of safety.

[35] On the same date, Ms. Ljubic and Constable Daunt met with S. S was protective of his father and blamed his mother for what had happened in the home. S nevertheless agreed to stay with his mother at the place of safety.

[36] The Society apprehended the children because of documented concerns reported by professionals in the community with respect to Mr. T-L’s behaviour; a concern that this behaviour was escalating and the concerns about the increased level of conflict between Mr. T-L and Ms. H to which the children have been exposed.

[37] Ms. Ljubic sought and obtained a warrant to apprehend the children, pursuant to section 40, subsection (2) of the Child and Family Services Act, and then did apprehend them. For the very same reasons, the Society filed a Protection Application requesting an order placing the children with the mother subject to the supervision of the CAS. The Society also sought an order regarding Mr. T-L’s access to the children, and an order restraining him from communicating with the mother and the children and from attending or being within 500 metres of the mother’s residence, the children’s school, or any place in the community where the children may be, with the exception of attending for access at the Society’s office.

Procedural History

[38] This history is set out in the affidavit of Deborah Bennett, counsel for the CAS, and it is not contradicted and is corroborated by the documents contained in the Continuing Record.

[39] On April 21, 2011, a Temporary Supervision Order to the mother was granted for all three children on a without prejudice by the Hon. Mr. Justice Sheffield. He also granted an order restraining Mr. T-L from communicating directly or indirectly with the children, with the exception of attending at the Society for access with them.

[40] Mr. T-L filed an Answer and Plan of Care on May 21, 2011. That Plan was never amended and it sought the following orders:

1. An order that Ms. H and Mr. O T-L shall have access to S, K and C T-L on a week on/week off basis subject to CAS supervision for four (4) months. Access shall be exercised at the matrimonial home, which shall be vacated by the other party during the access periods.

2. An order that Ms. H and Mr. T-L shall participate in mediation to determine access, child support and spousal support, failing which they shall proceed by of the Family Court process.

[41] The children remained in the care of their mother subject to the Temporary Supervision Order from April 21, 2011 until September 1, 2011, at which time Justice Mackinnon granted a temporary order providing that the children, K and C were to remain in the care of the mother subject to the supervision of the CAS and that the child, S, was to be placed in the care of Mr. T-L subject to the supervision of the CAS, both under certain terms and conditions. That Order was based on the agreement of the parties. The Restraining Order against Mr. T-L was varied.

[42] On November 23, 2011, Justice McMunagle granted an order based on Minutes of Settlement removing the Restraining Order against Mr. T-L. It also provided for access at specific times. He also ordered that the parties were to only communicate with each other for the purpose of access as well as the court proceedings, or to foster a positive relationship between the other parent and the children and that neither of them were to speak negatively to one another or about one another in the presence of the children, or to discuss these proceedings with the children. Also, on consent, a Family Court Clinic Assessment was also ordered, as was the appointment of counsel for the children.

[43] On April 26, 2012, Justice Maranger ordered that the temporary orders be varied according to Minutes of Settlement filed. The changes included the following residential arrangements; that S would continue to reside primarily with his father and that K and C will live with the mother and father on a week-on/week-off basis.

[44] The Family Court Clinic provided a report dated July 19, 2012. It recommended that the existing arrangements with respect to the children continue. Dr. McLean also recommended that the Society remain involved due to continuing protection concerns relating to the bitter acrimony between the parents and the emotional damage caused to the children. Dr. McLean made some specific recommendations, including individual counselling for S, K, and C.

[45] On July 20, 2012, the Society filed a Settlement Conference Brief which included the following “Offer to Settle”:

A finding that the children are in need of protection and that the least intrusive measure, in their best interests, is a supervision order: placing S in the care and custody of the father, O. T-L; and placing K. and C. in the care of both parents under supervision order, with K. and C. alternating residence between the parents’ homes on a week about basis. The Society will discuss in detail conditions for the supervision orders with the parties and their counsel.

[46] The matter came before Justice Lalonde on October 3, 2012 for Settlement Conference. In his endorsement of that date, Justice Lalonde noted that “the CAS made a without prejudice compromise that should have settled the matter”. The matter was adjourned to the assignment court on November 2, 2012.

[47] The Society filed a Trial Management Conference Brief dated October 26, 2012. In that Trial Management Conference, the Society made these further Offers to Settle:

A finding that the children are in need of protection in that the least intrusive measure, in their best interests, this legal custody order pursuant to section 57.1 of the Child and family services act, which reflects the status quo. The Society’s offer is also conditional upon the parents enrolling the children in counselling as per the recommendations of the Family Court clinic assessment. Once the counselling and legal custody orders in place the Society will close his file subject to any subsequent referrals made.

The Society also requests that, if the parents continue to litigate their custody/access dispute(s) at the Superior Court of Justice, then the case should be noted as a high conflict case and subject to case management.

An alternative “Offer to settle” provided that it may also be acceptable to the Society that it withdraw its application on the basis that the parents resolve the custody and access issues within the domestic proceedings and shield the children from future exposure to adult conflict and litigation.

[48] On November 27, 2012, the Society served the parties with the Notice of Withdrawal of the Protection Application with respect to S. In September 2012, notwithstanding that he was then subject to specific conditions of a temporary supervision order requiring him to do so, Mr. T-L had indicated to the child protection worker that he did not want to meet the worker again and that he did not want CAS involvement anymore. S had also stopped making himself available to meet with the worker. Given the age of the child, his unwillingness to engage in a relationship with his mother, his unwillingness to accept services from the Society and Mr. T-L’s unwillingness to engage with the workers, the Society elected to withdraw in relation to S.

[49] On November 27, 2012, the Society also served the parties with an Amended Protection Application with respect to the children K and C wherein the Society sought:

IN THE ALTERNATIVE: A status quo order with respect to the two younger children, C. and K. is specifically that these children live with their mother and father on a week on week off basis, with the parents picking up the children after school every other Monday for their weekly access, pursuant to sections 57.1 and 58 of the Child and family services act. The Society is also requesting that the parents of all the children in counselling as per the recommendations of the Family Court clinic assessment.

[50] None of the Offers to Settle were accepted by Mr. T-L even though these offers were better than what was set out in Mr. T-L’s Plan of care. The matter was accordingly scheduled to proceed to trial in May 2013. Rather than settle the matter, Mr. T-L’s then counsel, requested questioning of the child protection worker, the child protection supervisor, and the mother. The questioning of the child protection worker took place on December 3, 2012 and on April 2, 2013. The questioning of the child protection supervisor took place on April 2, 2013 and the questioning of Ms. H took place on March 21, 2013. Mr. T-L was also questioned on December 19, 2012. Due to the Society’s concerns with respect to the conduct of Mr. T-L’s counsel towards Ms. Bennett and the protection worker, the Society retained the services of an outside lawyer to assist in the questioning.

[51] In or about the end of March 2013, the Society retained Cheryl Hess from the law firm of Bell Baker to conduct the trial of the matter due to a scheduling conflict that Ms. Bennett had that time. The trial was to proceed May 6, 2013.

[52] In the interim, there was a motion brought by the mother to suspend Mr. T.L’s contact with K and C. On March 4, 2013, and at the end of the school day, K reported that she did not want to go to her father’s home after school to commence her week with him. She also would not allow her younger sibling C to get on the bus. Mr. T-L mistakenly refers to this motion as a “second apprehension.” The Society’s supervisor, Ms. Barrett had contact with Mr. T-L on that same date, and indicated to him that she hoped that he would respect K’s wishes, at least until it was understood why K was requesting this. Mr. T-L refused and showed up at her daycare on March 5, 2013 and got into a dispute with Ms. H which necessitated the police being called. Ms. H then filed her Notice of Motion, and the Society requested a temporary order suspending Mr. T-L’s contact pending the motion, which order was granted by Justice Linhares De Sousa on March 21, 2013.

[53] On the eve of trial, sometime immediately before 4:39 p.m. on Saturday, May 4, 2013, Mr. T-L fired his lawyer, or his lawyer fired him. The Society’s counsel of the time, Ms. Hess, was served with a Notice of Change of Representation that had been signed by Mr. T-L on May 2, 2013, and which indicated he would henceforth be representing himself. As a result, the trial did not proceed.

[54] On May 6, 2013, on the day the trial was scheduled to commence, the parties resolved the matter on a temporary basis. Once again, when the week-on/week-off schedule was back on track for K and C, the Society made another offer to withdraw the Protection Application on the basis of an appropriate order in Family Court being obtained.

[55] On November 18, 2013, the Society made another offer to withdraw the protection application on the basis of an appropriate order in Family Court being obtained. Mr. T-L did not accept that offer. The Society went even further in its Settlement Conference Brief dated February 12, 2014, by offering to withdraw whether or not the parents reached a resolution with respect to custody and access in their Family Court matter, in the hopes that they would shortly do so.

[56] Mr. T-L and Ms. H agreed, albeit, not without setting new trial dates in June of 2014, to the Protection Application being withdrawn on the basis of the Custody and Access Order made by Madam Justice Mackinnon on February 20, 2014. That resolution essentially preserved the same regime which had been put in place by Minutes of Settlement and Consent Order of Mr. Justice Maranger on April 26, 2012. A final appearance was required some six months later, on August 27, 2014, before Madam Justice Mackinnon for the sole purpose of settling the Final Order.

The Law

[57] Pursuant to Rule 24(2) of the Family Law Rules, O. Reg. 114/99, the presumptive entitlement to costs does not apply in a child protection case,

[58] In paragraph 68 of the case of Children’s Aid Society of Halton Region v. A.R., 2011 ONCJ 681, [2011] O.J. No. 5627, the Honourable Justice O’Connell recites the summarized principles that can be gleaned from the case law on the issue of costs as listed in a previous case 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.

These are essentially the same factors in the Children’s Aid Society of London and Middlesex v. C.D.B decision cited by Mr. T-L.

[59] It is necessary to make a few preliminary comments with respect to Mr. T-L’s presentation of the evidence and his argument at the hearing. There is no doubt that Mr. T-L was deeply offended by the apprehension of his children by the CAS. It is also apparent that he became convinced at an early stage that the Society had quickly decided to support the mother in the claim of custody of the children against him. Perhaps as a result of those deeply held feelings, Mr. T-L has seized on isolated phrases and statements in the various notes, records and documents and has interpreted them in a way which is not at all consistent with the evidence before the court. I am reluctant to conclude that he has done so in a deliberate attempt to mislead the court, but the pattern of misstatements and erroneous conclusions made it very difficult to accept any of Mr. T-L’s arguments.

[60] His Factum is representative of his interpretation of the events. At paragraph 3,4, and 5 he states:

On February 20^th, 2014, CAS admitted their application was wrong and requested its withdrawal on the basis that: (i) children were not in need of protection, (ii) it was not appropriate to place children in sole the mother custody. CAS’s admission is clear: the children were not in need of protection. This is the finding. The general principle of rule of law proposes that an admission of a fact is a finding of that fact. CAS admissions by constitute a palpable finding in this child protection matter. No further trial is required when an admission of wrongdoing is made before the court.

This honourable Court does not need to contemplate a finding, in the realm of child protection application, corollary to a decision at trial. Moreover, this Court does not need to further investigate the finding is against, when admission of a wrongdoing is made by one party. CAS’s admissions must be sufficient to establish to establish the responsibility for the wrongdoing in the face of the manner CAS conducted investigation.

CAS’s admissions constitute a recognition that the finding in this matter is in accordance with the position the father held and maintained and goes up against the position CAS held and maintained throughout the proceedings. CAS’s admissions are prima facie evidence that their application was wrong, ill-advised, ill-conceived and wrongly conducted, and therefore, a prima facie evidence of their undeniable responsibility.

[61] These paragraphs demonstrate that Mr. T-L fails to make a critical distinction. The fact that the Society ultimately withdrew its application does not mean it did not have reasons to apprehend the children in April 2011. He also argued that the Society could not rely on hearsay evidence at all and I had a lengthy debate with him on that issue.

[62] In argument, he tried to argue that Ms. H’s affidavit filed in support of the bail variation indicated that he had always had primary care or control of the children during the marriage when no such statement appears. He also argued continuously that the Society knew for a fact that he had not assaulted his wife or child even though he pleaded guilty to assaulting S a few days after that affidavit.

[63] He repeatedly took notes out of context or ascribed meanings to them that were not sustainable. One of the first notes he referred to was one created by Ms. Evans on April 1, 2011. In that note, Ms. Evans refers to a voice message from Josée Chouinard, who had seen Ms. H at the hospital. The note reads:

Josée advised that L. will be discharged from the hospital tomorrow and they just wanted everyone to be aware of the discharge plan. Asked if they had any concerns, Josée stated that Dr. Stewart did not feel that L is at risk to herself or her children. Worker advised that he may be in L’s best interest if O is not involved in the discharge plan worker agreed to attend at hospital to meet with L at 4:30 PM worker to assess L and will leave a message on Josée’s phone advising if O at the meeting is appropriate.

[64] Mr. T-L says that this is evidence of Society aligning itself with the mother against him. That statement is taken completely out of context. By this time, the Society knew that Mr. T-L had pleaded guilty of assaulting his son. The Society also knew that Ms. H was in the hospital with an overdose of sleeping pills and that Mr. T-L had called the police accusing his wife of trying to poison him. Ms. H had also disclosed to hospital staff that her husband was abusive. In that context, Ms. Evans’ note does not have the sinister meaning attributed to it by Mr. T-L at all. It is entirely reasonable that he should not be involved in the discharge plan.

[65] In her written submissions, Society’s counsel also provided a detailed summary of over 20 instances where Mr. T-L’s allegations with respect to notes and records set out in the 215 paragraphs of his affidavit are inconsistent with the established facts. I will give but a few examples here as these are representative of the type of statements that Mr. T-L made in his submissions to the Court which required constant correction from me.

[66] At paragraph 18 of Mr. T-L’s affidavit sworn January 13, 2015, Mr. T-L suggests as he did in court, that Ms. Evans advised Ms. H to photocopy a Sale and Purchase Agreement which K had taken from her father’s home. In fact, it is clear from the note that Ms. H is reporting to Ms. Evans that she had contacted her lawyer, and that her lawyer had advised her to make a copy of the Agreement. Ms. Evans, in fact, advises Ms. H to ensure the Agreement is returned to Mr. T-L.

[67] At paragraph 34 of that affidavit, Mr. T-L alleges that a note in the Continuing Record discloses that Ms. H attended at the school and sought the help of teachers and daycare personnel “to recover custody of [sic] children”. That note, dated November 18, 2011, says no such thing and records a conversation between the CAS worker and K’s teacher.

[68] At paragraph 128 of the affidavit, Mr. T-L swears that Ms. Ljubic was unable to provide any genuine reason to believe the children were in danger with him. This is not supported by the evidence as contained in the transcript of the examination of Ms. Ljubic dated, December 3, 2012 that Mr. T-L himself referred to at the hearing. In answer to Question 10, Ms. Ljubic lists all of the reasons why she apprehended the children.

[69] At paragraph 152 of his affidavit, he attempts to make Ms. Ljubic’s response about “the father for putting the children in the room on March 27, 2011”, as justifying the apprehension when the transcript reveals that her concern was with respect to the children being locked in the room from the outside.

[70] At paragraph 172, Mr. T-L refers to a portion of the transcript of the examination of Ms. H of March 21, 2013 upon which he relies to contend that Ms. H admitted in her second examination to have coerced [the] children in questioning them about the father. The transcript actually says the complete opposite. In lines 19 and 20 on page 22, Ms. H states: “I never asked her about, “What is your Daddy telling you?””, and in lines 21 to 23 the question is asked: “So you say all of these Item 48 sub-items are all spontaneous disclosures by K?”, and the answer is: “Yes”.

[71] At paragraph 174, Mr. T-L accuses the Society of enacting a drinking accusation against him. He relies on a report the Society received from the daycare. He does not advise the Court of Ms. Ljubic’s follow up note that reflects a telephone call with Marie of Portobello School Age Program that reads: “yesterday smelled alcohol on O but not sure if it is aftershave, mouthwash”. Mr. T-L could not identify any allegation of a drinking problem against himself, or against Ms. H in any of the CAS records or the Court file during the Society’s four years of involvement with the family.

[72] At paragraphs 183 and 184, Mr. T-L relies upon a note of Ms. Ljubic dated October 2, 2011, and alleges that Ms. Ljubic questioned the children and that she came to certain conclusions. The note does nothing but report the disclosure of Ms. H.

[73] In court, Mr. T-L relied upon a note of Ms. Ljubic dated April 27, 2011 to support his theory that the Society was advocating for the mother. He read the following from that note: “Ms. H said her biggest fear is losing her children. I advised that the Society is working with her to ensure that they can stay with her… .” He didn’t even finish the sentence which continues “to ensure that they can stay with her for the time being.” (five days after Justice Sheffield granted a temporary without prejudice order placing the children in the care and custody of Ms. H subject to supervision) Mr. T-L did not read out the next sentence of that note which says: “I expressed my role is to also work with Mr. T-L to support him to get resources to strengthen his role as a parent.”

[74] Mr. T-L suggests in his affidavit, as he did in his submissions that “the Society knew he didn’t assault his child.” His counsel spent some time attempting to get Ms. Ljubic to agree to that in her examination of December 3, 2012, where he asks: “You’ll agree with me that you subsequently determined that Mr. T-L has never hit the children?” and Ms. Ljubic responds: “I understand that Mr. T-L pled guilty to assault towards his eldest son and concerns for physical abuse were verified by the Society’s file”. At Question 25 on page 12, his counsel states: “You subsequently determined that Mr. T-L never hit his children before or after April 19, 2011”, and when Ms. Ljubic is asked by Mr. Santini if she agrees with that she says: “I do not.”

[75] In court, Mr. T-L continually argued with me that his guilty plea was not an admission that he had assaulted his son. He dismissed it as a plea bargain that had no meaning. He denied ever being cautioned before entering his plea.

[76] Mr. T L’s affidavit and his submissions, contain many references to Constable Jeffrey Daunt’s wife as being one of the teachers at his children’s school and as being a material witness. She is referred to as: “a friend and acquaintance to the mother” and residing “in the same neighborhood as one of the mother’ [sic] co-workers and friend of acquaintance”, “one of the school teachers who constituted one of the main witnesses in the accusations against [him]”, “one of the teachers at the children’s school are friends of [sic]quittance of the mother”, and “his wife and neighbour who happened to be the mother’s co-worker and friend of acquaintance.”

[77] Mr. T- L never concretely demonstrated or identified the roles of any of these people (co-worker, friends of acquaintances, neighbour) or their connections to the story, even when challenged by me to do so, but he insisted on his theory that Constable Daunt’s wife is first of all, a material witness, and second, one of the teachers at K and C school, Saint Theresa. Ms. Daunt was not a teacher at C and K’s school, and had nothing whatsoever to do with the teachers, vice-principal or principal there and she was not a material witness.

[78] In Constable Daunt’s first contact with Ms. Ljubic on April 18, 2011, he advises her as follows: “wife is teacher at S’s school– Immaculata school” and further on in that same note: “met w principle [sic] at St. Theresa 2000 Portobella Ave today”. Beyond perhaps expressing a concern to her husband about a student in her school, Ms. Daunt had no part in a conspiracy of bias against Mr. T-L, and there is not one piece of evidence to actually support that other than Mr. T.L’ firm belief.

[79] Mr. T-L was very critical of Constable Daunt’s summary of the police occurrence reports. He even argued with me that Constable Daunt’s reference to an April 1, 2011 incident at the Ottawa Court House was not correct. It says:

Both O and L were observed at the Ottawa court house by Constable Janzen. Cst. Janzen described O as being in L’s face. While speaking to O, he reveals to Constable Janzen that he loves L and wants the marriage to work.

Mr. TL seemed to take great exception to the reference to his being “in his wife’s face” and claimed that this was inaccurate. When we reviewed Constable Janzen’s note, those were her exact words. Mr. T-L argued that Cst. Janzen’s report was “neutral” when in fact her report indicates that she was called to the counter because she was made aware of a “possible domestic situation”. Her report is far from “neutral”.

[80] In attacking the contents of the occurrence reports, Mr. T-L ignores the pattern of the contacts - seven police contacts within two weeks and four days. This pattern of increasing police contact was combined with what others who had occasion to have contact with Mr. T-L had experienced - his volatility, and his propensity to escalate. He seemed to imply that the Society should have been more critical of the report and conducted its own investigations of these incidents simply because Constable Daunt reported a conversation he had with his wife.

Analysis and Conclusion

[81] From the date of Mr. Justice Sheffield’s Temporary Orders of April 21, 2011, the matter was very much in the hands of the Court. Notwithstanding that was the case, I accepted the Society’s submissions and was satisfied that on each and every occasion thereafter where an interim variation or resolution to the evolving situation was necessitated, the Society reached appropriate agreements, which were reflected in Agreements, Minutes of Settlement or Consent Orders. The Record before me demonstrates that the Society was even-handed and reassessed its position as the investigation unfolded and more information became known to it.

[82] When it became clear that maintaining S in Ms. H’s care was not sustainable, the Society agreed that he be placed in the care of Mr. T-L. The Consent Order of Madam Justice Mackinnon dated September 1, 2011 varying Mr. Justice Sheffield’s Order is evidence of this.

[83] Later into September and October of 2011, when the Society was receiving information from the parties that they were having some levels of contact despite the existence of a Restraining Order, the Society agreed that the restraining order be terminated.

[84] When the Society came to the conclusion that a Family Court Clinic Assessment was required in order to get a fuller understanding of this family’s dynamics, the parties consented to an order for same. Although Mr. T-L refers in his affidavit to this and other outcomes as having been “imposed” upon him, in every instance, he negotiated terms, signed agreements or minutes of settlement, or consented to interim orders. In every instance, that he did so. Mr. T-L was represented and advised by counsel who also signed the Minutes or Agreements.

[85] The parenting time set out in the Order of Mr. Justice McMunagle was too cumbersome for the parties. A resolution is reflected in the Minutes of Settlement and Consent Order of Mr. Justice Maranger dated April 26, 2012. This resolution brought about the week-on/week-off parenting schedule for K and C, while S remained in his father’s care and this became the basis for all later Offers to Settle be made by the Society.

[86] The Family Court Clinic Assessment was completed on July 12, 2012, and it recommended, among other things, that the week-on/week-off schedule for the younger children be maintained. Dr. McLean also recommended that the Society remain involved due to the continuing protection concerns related to the bitter acrimony between the parents and the emotional damage caused to the children. He also would have liked to see some individual counselling for S and K. Dr. McLean referred to the children as “being caught up emotionally in the middle”, but did also note that: “It is my sense that the week-on/week-off rotation, with fewer turnovers, has lessened the distress for the children and I would therefore support its continuance”.

[87] Almost immediately upon receipt of the Family Court Clinic Assessment, the Society began to make Offers to Settle to the parties in hopes of reaching a resolution which would minimize the impact of the conflict between the parents and on the children.

[88] Because S had turned 16 on October 30, 2012, and because neither he nor Mr. T-L were cooperating with the Society, the Society filed a Notice of Withdrawal on the April 20, 2011 Protection Application and filed an amended Protection Application pertaining to K and C only on November 27, 2012, which reflected that the Society would be prepared to settle on the basis of a s. 57.1 Custody Order to both parents, or by way of a withdrawal should the parents address the custody/access issues in the domestic proceedings.

[89] Mr. T-L accepted none of the Society’s offers. Although the Society filed the Notice of Withdrawal and did not name S again on any other application, no endorsement appears in the Endorsement Record permitting the Society to withdraw its application pertaining to S as there was no consent. At the hearing, Mr. T-L would not agree that the Society had sought to withdraw its application with regard to S until I showed him the affidavit of service on his counsel.

[90] From all of the evidence filed, I conclude that the Society executed its mandate in a fair and defensible fashion. It did so in good faith, and with the sole objective of protecting the children from harm; emotional or otherwise. Bad faith cannot be found in the facts of this case.

[91] There is no evidence before me that supports a finding of “the conscious doing of wrong because of dishonest purpose or moral obliquity” on the part of Ms. Evans, Ms. Ljubic, Ms. Streilein or Ms. Barrett. The Society’s work and Ms. Ljubic’s, in particular, was extremely thorough and professional. The motive projected by Mr. T-L namely, bias in favor of securing custody of the children to their mother, is not supported by the evidence nor the outcomes proposed and agreed to by the Society of:

1. S being in his father’s care, and

2. K and C being in the joint custody of both parents with equal parenting time.

[92] As part of its duty to assess and reassess, the Society sought and obtained an Order for a Family Court Clinic Assessment. Upon receipt of the FCCA in July of 2012, the Society immediately contemplated what course or courses of action would be in the best interests of the children in light of the recommendations contained therein.

[93] The Society also continuously resolved interim issues in a reasonable way on a consensual basis. The Society also continuously offered to do so on a final basis. The Society could not be perceived by ordinary persons in these circumstances as having acted unfairly. The only thing that prevented a final resolution was Mr. T-L’s refusal to accept any offer and his desire to have a trial so that he could try to prove that the CAS had been wrong throughout. He attempted to do so at this hearing and he failed completely.

[94] Rule 24(11) (b) requires the Court to consider “...the reasonableness or unreasonableness of each party’s behaviour in the case”. In determining what constitutes “reasonable” or “unreasonable” behaviour, Rule 24(5) requires the Court to consider the “party’s behaviour”, any offers that were made, withdrawn or rejected, and the “reasonableness” of such offers. The Society’s offers to resolve these proceedings were reasonable.

[95] The Society argues that the reasonableness or unreasonableness of Mr. T-L’s behaviour, on the other hand, is something the Court may wish to consider. By his own admission, Mr. T-L failed to comply with the Orders of Mr. Justice Sheffield dated April 21, 2011, relating to his court ordered access to the children and the Restraining Order. He failed to comply with the terms and conditions of the Temporary Supervision Order of Madam Justice Mackinnon with respect to S after September of 2012, while at the same time, declining to permit the Society to withdraw its application regarding S.

[96] He refused to allow the Society to process what was happening to K in the spring of 2013 without Court intervention; and, he prolonged the proceedings from November of 2012 to February of 2014 by refusing to accept the Society’s offers, and again, from February 20, 2014 to August 27, 2014 by refusing to approve the Draft Order of Madam Justice Mackinnon, all of which resulted in additional costs to the parties.

[97] The Society seeks an order of costs in relation to the defence of this motion. Mr. T-L was served with another Offer to Settle on January 23, 2015 which indicated that the Society would not seek an order for costs in the event that he withdrew this motion. The offer was open until one minute after the commencement of the hearing on February 3, 2015. Mr. T-L did not accept the Society’s offer. While the Society is mindful that any order of costs this Court may make in favour of the Society is money that would be better suited to meeting the needs of the children. It is equally apparent, from some of the materials filed, Mr. T-L has also threatened to sue the CAS of Ottawa.

[98] For that reason, the Society asks that an order of costs in the amount of $6,000 be made in favor of the Society on this motion, and that should such an order be made, I further order that Mr. T-L will be prevented from bringing any other action or application absent proof of payment of those costs.

[99] Ms. Engelking has filed a Bill of Costs in this matter which sets out a total amount of $29,503.85 as the expenses incurred by the CAS in responding to this motion. Given the breadth of the materials filed by Mr. T-L and the nature of his allegations, I am satisfied that the very thorough and detailed work carried out by Society’s counsel was justified. I further conclude that the Society is being generous in limiting its claim for costs to the amount of $6,000.

[100] While I agree that it would be preferable for Mr. T-L’s financial resources to be made available for the benefit of his children, I am mindful that his concerns for his children did not prevent him from incurring $80,000 in legal fees for his last lawyer who did nothing to advance his case. For these reasons, I grant the request made by the Society to fix their costs in the amount of $6,000. Mr. T-L is further prevented from commencing any action or initiating any other proceeding against the Ottawa CAS unless those costs are paid.

Mr. Justice Robert N. Beaudoin

Released: March 16, 2015

CITATION: Children’s Aid Society of Ottawa v. T-L., 2015 ONSC 1664

COURT FILE NO.: FC-11-916

DATE: 2015/03/16

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

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF S.T-L. (d.o.b. […]/96); K-E.T-L. (d.o.b. […]/03); C. T-L. (d.o.b. […]/06)

BETWEEN:

Children’s Aid Society of Ottawa

Applicant

– and –

L.H. and O.T-L.

Respondents

ADDITIONAL reasons for decision

Beaudoin J.

Released: March 16, 2015