Court File and Parties

NEWMARKET COURT FILE NO.: FC-15-48047-00 DATE: 20170525 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Children and Family Services of York Region Applicant – and – G. H. Respondent – and – R. H. Respondent

Counsel: Nancy Guatto, Counsel for the Applicant Lance Talbot, Counsel for the Respondents

HEARD: In writing

Ruling on Costs

WARNING

This is a case under Part III - Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:

45(8) PROHIBITION: IDENTIFYING CHILDREN - No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

76(11) PUBLICATION - No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.

85(3) OFFENCES - A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to

a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or

to both.

JARVIS J.:

[1] This Ruling deals with costs arising from protection proceedings.

[2] On February 7, 2017 an Order was made, as requested by the Society, to withdraw a Protection Application involving two children. The parents seek costs against the Society. They claim that the Society failed to properly discharge its statutory obligations; in particular, failing to adequately investigate the protection concerns, failing to re-assess its position as more information became available and failing to act in a fair and reasonable manner throughout the process. The Society maintains that it acted appropriately in carrying out its mandate.

[3] The parents seek all-inclusive costs of $47,864.27 on a full recovery basis or, alternatively, partial recovery costs of $35,898.17.

[4] The parents and Society delivered Affidavits, supplemented by written submissions, and authorities upon which they relied. The parents made an Offer to Settle dated August 30, 2016 proposing that the Protection Application be withdrawn by October 1, 2016 without costs.

Background

[5] The Protection Application was started on May 27, 2015. The children involved were then five and three years old. The Society claimed that the children were in need of protection because they had suffered harm (sections 37(2)(a)(i) and 37(2)(a)(ii) of the Child and Family Services Act, R.S.O. 1990, c. C. 11 (“CFSA”)), are likely to suffer harm (sections 37(2)(b)(i) and 37(2)(b)(ii) of the CFSA) and that there was a risk of sexual molestation or exploitation (section 37(2)(d) of the CFSA).

[6] The genesis of the Application is particularly relevant, and may be summarized as follows:

(a) the children are the biological children of the father. They were adopted by the mother shortly after birth;

(b) the biological mother of the children was a surrogate. She was an immigrant from St. Vincent and a friend of the father and mother (sometimes referred to as “the parents” or severally as “the father” or “the mother” as the context warrants). She resided with the parents for about a year between June 2008 to July 2009;

(c) the surrogate had four children of her own, all of whom lived in St. Vincent. The surrogate asked, and the parents agreed, that they would apply for guardianship of the three oldest children who, subsequently, became permanent residents of Canada and lived with the parents until September/October 2013 after which they began to live with their mother in Toronto;

(d) on or about March 2, 2015 the parents were notified by Canada Immigration that they were ineligible to apply for Canadian citizenship for the children because they were not the children's adoptive or biological parents. They, in turn, relayed this news to the surrogate;

(e) while the evidence is disputed, it is a not unreasonable inference that the relationship between the parents and the surrogate deteriorated after the Canada Immigration letter. That is what the parent’s allege;

(f) on or about May 3, 2015 the parents became aware that the surrogate had made allegations about them of physical and mental abuse of her children and sexual abuse of one of the surrogate’s daughters by the father, which the recipient of those allegations was obliged to report to the authorities;

(g) the Children's Aid Society of Toronto (“CAST”) reported the allegations to the Society;

(h) the children were interviewed by a Society worker on May 12, 2015. No action was taken;

(i) around this time the father was charged with sexual assault of one of the surrogate’s children. Both parents were charged with assault involving one or more of the surrogate’s children. The mother was also charged with assault involving one of her children;

(j) the parent’s oldest child was interviewed again on May 22, 2015 by a different Society worker and a York Region police detective;

(k) a decision was made by the Society to apprehend the children, which was done on May 22, 2015;

(l) the Protection Application was started on May 27, 2015;

(m) the children were placed with the paternal aunt and uncle subject to conditions which involved continued parental contact;

(n) judicial conferences in the protection proceedings were held afterwards. A review of the Endorsement Record discloses that adjournments of the Protection Application were agreed because, in particular, the mother's criminal trial was expected to commence in January 2016 (December 15, 2015 Endorsement), later rescheduled to July, 2016 (February 4, 2016 Endorsement). This later Endorsement also referred to the father's preliminary hearing on the sex assault charge, which was scheduled for June 2016. An April 4, 2016 Endorsement noted that the parents were seeking the adjournment until after the conclusion of the mother's criminal trial;

(o) the father's preliminary hearing was held on June 16, 2016;

(p) the criminal charge against the mother involving one of the children was withdrawn by the Crown on July 13, 2016. The other charge against the mother involving one of the surrogate’s children was withdrawn on August 18, 2016;

(q) the children were returned to their mother’s care but the father was not permitted by the Society to return to the family home;

(r) the parents made their Offer to Settle on August 30, 2016;

(s) all criminal charges against the father were withdrawn by the Crown on September 30, 2016; and,

(t) the Protection Application was withdrawn on February 7, 2017.

Position of the Parents

[7] Under the all-encompassing umbrella that the Society did not to act in a fair or reasonable manner, the parent's position is that the Society failed to discharge its duties in three respects, each of which will be considered.

(a) Excessive Disclosure Delay

[8] On May 27, 2015, five days after the children's apprehension, Kaufman J. noted that the parents had just been provided with the Society's material and that disclosure to the parent’s counsel was to be made by June 10, 2015. That was not done.

[9] On June 11, 2015, the parent’s counsel wrote to the Society's counsel for its disclosure. No disclosure was apparently provided.

[10] A further written request for disclosure was made by the parents on August 21, 2015. It does not appear that disclosure was provided.

[11] On August 25, 2015 Kaufman J. ordered that Society disclosure was to be provided by September 30, 2015. That was not done.

[12] Disclosure was provided to the parents on or about October 28, 2015. None of the disclosure included any disclosure from CAST, which the parents allege was the foundation for the Protection Application.

[13] After the father's criminal charges were withdrawn on September 30, 2016 it appears that the parents requested that the Protection Application be withdrawn or dismissed. In a letter to the father's counsel dated October 7, 2016, the Society's counsel (Ms. Guatto) wrote:

With respect to this withdrawal [of the criminal charges], while I appreciate [R.H.] is anxious, under the circumstances, to be reunited with his family as soon as possible…the outcome of the criminal proceedings do not dictate what happens in the child protection matter. There is a different burden of proof in our proceedings which is not as onerous as that of a criminal matter. That being said, however, the fact that the charges were withdrawn is definitely an important new development on this file that the Society will carefully consider.

In order for the Society to make a fully informed decision on your client’s request, now more than ever we require the CAST file on the matter, and in particular the notes pertaining to the interviews of the [surrogate’s] children insofar as they relate to the allegations against [R.H.]. This documentation has been requested by the Society on a number of occasions, including on June 24, 2016 and again on September 27, 2016, which was followed up with a written request. I was also advised yesterday, by Family Services Supervisor Deborah Slater that she was discussing this request with the CAST Supervisor who has now indicated that in order for the Society to obtain this information we will require consents from [the surrogate] and her children, failing which we will need to bring a third party records application.

…As soon as we have all relevant information with respect to the interviews and the reasons for the withdrawal of the charges we will be in a position to make an informed decision about [R.H.]’s ability to return to the family home.

[14] Key to the parents’ concern was the fact that the Society did not have the CAST records. This was also addressed in Ms. Guatto’s letter,

It is my understanding, from speaking with Ms. Slater and Nicola Graham, that during the transfer meeting with parents that took place in August, Ms. Graham asked [R.H.] if he had ever received a copy of this disclosure as part of his criminal proceeding, and if so, if the Society was experiencing difficulty obtaining this information could he provide it to us. [R.H.] indicated that he did have this material and that he could provide it to us. While I appreciate that he may not have fully understood what was being asked of him, if he is able to get this information to us, that would obviously expedite this process given the position now being taken by CAST regarding their documentation.

In addition, in terms of making a decision regarding [R.H.]’s request, the Society will need to obtain information regarding the reason(s) for the withdrawal of the charges. In this regard, any information you are able to share, including information from [R.H.]’s criminal counsel would be greatly appreciated.

[15] No information why the charges against the father were withdrawn was provided to the Society by either him or his criminal counsel. The father maintained that it was the Society’s duty to provide to him all of the records upon which it was relying.

[16] A further request was made by the Society to the father on or about November 22, 2016 but when there was apparently no response to that request, the Society wrote to the Crown on November 29, 2016 for an explanation. There is no evidence that the Society initiated any such inquiry from the Crown after September 30, 2016 until then. On December 7, 2016 the Society contacted the Crown to follow up its request. In an Endorsement made by Kaufman J. on December 22, 2016 involving a Motion by the parents to, among other relief requested, permit the father to return to the family home, the court made an Order suo motu that, “in the event that the Newmarket Crown Attorney’s office does not provide the Society with information concerning the decision to withdraw the charges against [the father] by January 23, 2017 then [the Crown attorney] or his designate shall attend court on January 24, 2017 [this being the date scheduled for a Trial Management Conference] with the requested information or an explanation as to why it has not been provided”.

[17] On January 17, 2017 the Society advised that its file, which included the CAST records, was available. Three days later the Crown advised the Society that the decision to withdraw the criminal charges against the father was made after a review of the preliminary hearing transcripts and material provided by the father’s criminal defense counsel. Based on that review and the reliability and credibility of the witnesses there was no reasonable prospect of conviction. The Society advised the parents later that day in a letter to their counsel that it proposed to withdraw the Protection Application, which was done on February 7, 2017.

[18] The Society acknowledges that there was significant delay in providing disclosure but maintains that no prejudice was caused to the parents. The May 27, 2015 affidavit of the worker given to the parents at court that day contained what the Society contends was detailed information about the statements made by the surrogate’s children to CAST and by the parent’s children and, in any event, the Society speculates that it was likely that the parents would have been aware of what was being said through the Crown disclosure process in the criminal proceedings.

(b) Failure to Adequately Investigate

[19] The parents claim that the Society undertook no independent investigation of its own before starting the Protection Application. According to them, the Society should have interviewed the surrogate’s children and made an effort to reconcile conflicting statements of harm made by one of their own children. Had the Society undertaken such an investigation it would have also discovered that the CAST intake disclosed that it was the mother, not the father, who was the subject of the investigation. The verification decision was not done for any concerns about the father. However, a June 24, 2016 Society file note made during a meeting between the parents and a Society supervisor noted in several areas that the protection concerns had been verified. In relation to the father, this was untrue.

[20] The Society acknowledged that CAST failed to verify the allegations made against the father. It assumed that verification had been made. However, the Society maintains that the decision to start the Protection Application was appropriate because there was sufficient information based on the Society's interviews of the children, the records of the interviews with the surrogate’s children and the criminal charges against the parents. In other words, CAST’s failure to verify the allegations was a procedural irregularity which would not have affected the Society's decision to apprehend.

[21] According to the parents, the Society should have interviewed friends, community members, a stepdaughter and, specifically, the surrogate’s children to flush out inconsistencies in their allegations.

(c) Failure to Re-assess

[22] The parents claim that the Society relied on the outstanding criminal proceedings to avoid more timely investigatory due diligence in the protection proceedings. Had the Society independently assessed the case, particularly given the parents’ cooperation with the Society (which it acknowledged) there was no basis to delay the father's reunification with the mother and children after the criminal proceedings against him ended on September 30, 2016. Society efforts afterwards to plan the father's reintegration with his family while the Society sought clarification from the Crown why the criminal charges were withdrawn were unacceptable to the parents, although more expansive access by the father was informally allowed.

[23] The Society maintained that, at least until the criminal charges had been resolved, it acted appropriately and progressively expanded the children's contact with their parents.

Law and Analysis

[24] It is well settled that the costs may be awarded against a Society in child protection proceedings although the range of circumstances in which such an award will be made is circumscribed. In Children’s Aid Society of Algoma v. K.B. and T.S. [1] Gareau J. observed,

The test to attract costs against a Children’s Aid Society in a child protection proceeding is a high one in that “there must be exceptional circumstances or unreasonable or unfair behaviour”. The rationale for this approach is sound in that Children’s Aid Societies ought not to be discouraged by the sanction of costs in carrying out a statutory mandate imposed on it to protect vulnerable children in our society.

[25] In Children's Aid Society of Hamilton v. K.L. and T.M. [2] Chappel J. also explained why a special approach to costs in such cases was warranted,

The special approach to costs claims against Children’s Aid Societies recognizes the extremely important and difficult task which those agencies are entrusted with, and the challenging judgment calls which child welfare professionals must make on a regular basis in carrying out their mandate to protect children. Child protection staff must be encouraged to err on the side of caution in favour of protecting children in situations where they have reasonable grounds to do so, without having the added burden whenever they are required to make difficult judgment calls of having to embark upon a taxing cost/benefit analysis as to whether they can financially afford to protect the child in question.

[26] Chappel J. then summarized the general principles applicable,

1. Child protection agencies do not enjoy immunity from a costs award.
2. However, the starting point in analyzing a claim for costs against a child protection agency is that the child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.
3. The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.
4. The high threshold of “bad faith” is not the standard by which to determine a claim for costs against a child protection agency.
5. Costs will generally only be awarded against a Children’s Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.
6. A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome.
7. Important factors to consider in deciding whether costs against a Society are appropriate include the following: i. Has the Society conducted a thorough investigation of the issues in question? ii. Has the Society remained open minded about possible versions of relevant events? iii. Has the Society reassessed its position as more information became available? iv. Has the Society been respectful of the rights and dignity of the children and parents involved in the case? v. In cases involving procedural impropriety on the part of the Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society’s efforts to diligently carry out its statutory mandate of protecting children.

[27] In support of their costs claim the parents rely on Children's Aid Society of Waterloo Region v. B.-C.(Z.) [3] and Children's Aid Society Hamilton v. Si. R. and C.D. [4], cases in which costs were awarded against the respective Societies. In the former case, the Society had failed its investigatory duties in not interviewing a child complainant before starting protection proceedings: in the latter, the Society failed to comply with disclosure timelines which had been ordered, which procedural failure increased the mother's costs.

[28] In Children's Aid Society of London and Middlesex v. T.S.-V. [5], Vogelsang J. awarded costs against a Society for procedural misconduct when the Society apprehended children in circumstances where a Justice of the Peace had shortly before just dismissed an apprehension warrant for them.

[29] None of these cases appears to have involved concurrent protection and criminal proceedings.

[30] In Children’s Aid Society of Nipissing and Parry Sound v. L.O. and R.O. [6], the parents sought substantial indemnity costs in the amount of $22,614.07 for what they contended were a number of Society failures. These included inadequate investigation, over-reliance on unproven allegations of sexual assault, and bad faith. In a careful analysis of the facts and law, Klein J. found that none of the important considerations listed by Katarynych J. in B.-C. (Z.), and which were further summarized by Chappel J. in K.L. and T. M. above, warranted a costs award in that case. An important fact was delay caused by the child's inability to meet independently with the Office of the Children's Lawyer, and not as a result of any procedural impropriety on the part of the Society. There was some evidence in the case report about there being criminal charges of a sexual nature against the father but it is unclear whether those were on-going when the Protection Application was dismissed or, if laid, their status.

[31] The issue of the parents’ complaint in this case is that the Society ought to have more thoroughly investigated the allegations made by the surrogate’s children which the parents contend triggered the Protection Application. However, this ignores the fact that there were concurrent criminal proceedings of a serious nature involving both parents and a Society assessment made after interviewing the children which satisfied it that the children were at risk.

[32] A review of the evidence leads to the following conclusions:

(a) there is no question that there was delay by the Society providing the disclosure requested by the parents and as ordered but those delays, with one exception, did not prejudice the parents. The exception, which forms the principal basis of their costs claim, was the Society's failure to obtain the CAST records before the father's criminal charges were withdrawn on September 30, 2016. It cannot be said though that the parents were unaware of the essential allegations by the surrogate’s children as those were detailed in a protection worker's Affidavit (paragraph 35) provided to the parents when the Application first came before the court on May 27, 2015;

(b) the Protection Application dealt solely with the children, not with protection concerns involving the surrogate’s children. The Society was statutorily required to consider, and to rely on, the report made to it by CAST. While that information was a contributing factor to the decision to start the Protection Application it was not the only, or even determinative, factor. The criminal charges against the parents coupled with the interviews of the children were equally important factors;

(c) until such time as the criminal charges were resolved, there was little likelihood that the Protection Application would have been permitted to be withdrawn. The parents requested that the protection proceedings be delayed until the outstanding criminal charges against them were resolved. The Society cannot be faulted for its acquiescence to those requests nor would it have been likely that a court would have dismissed the Application or acceded to any motion that the parents could have brought to have the children returned to their care while those criminal proceedings were outstanding. The parents were justified, in particular the father, in their frustration with the family being reunited after his criminal charges were withdrawn by the Society's failure to more thoroughly investigate beforehand, and obtain, the CAST file. But that observation must be viewed in the context of the Society's reasonable and responsible interest in ascertaining the reasons why the criminal charges against the father were withdrawn. This is the context in which the parent’s August 30, 2016 Offer to Settle must be viewed. The Endorsement made by Kaufman J. on December 22, 2016 reflects this court's displeasure, not with the Society, but with the Crown law offices in failing to more helpfully respond to the Society's concerns and to respect the parents’ interests.

[33] The case law is clear that the bar is high when considering costs against a Society not involving unreasonable procedural failures but that, in appropriate circumstances, the Society can be held accountable for procedural misconduct. In this case, no reasonable explanation has been given why the Society failed to comply in a timely fashion with the disclosure Orders made by Kaufman J., or requested by the parents. There is no satisfactory reason why the parents were charged $373.47 for what appears to be the disclosure containing the CAST file. While that disclosure may not have led to a different assessment of the Society's handling of this family’s file or even the very unlikely withdrawal of the Protection Application before resolution of the outstanding criminal proceedings, the fact is that the Society didn't comply with the Orders made by Kaufman J. or respond more quickly to the not unreasonable disclose requests made by the parents’ counsel, which only increased the their costs. It is axiomatic that court Orders are not suggestions; there should be consequences for Order non-compliance.

[34] Accordingly, the Society shall pay to the parents the sum of $1,373.47 inclusive of HST comprising the sum of $1,000 for its failure to provide disclosure as ordered and requested and $373.47 for the cost of the CAST file charged to the parents.

Justice D.A. Jarvis Date Released: May 25, 2017