WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017 , which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO.: FC-17-1979 DATE: 2019/07/11 ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 AND IN THE MATTER OF K.K. born xx‑xx‑2009 and X.K. born xx‑xx‑2016
BETWEEN:
The Children’s Aid Society of Ottawa Applicant – and – J.K. (Mother) A.A. (Father) Respondents
Judith Hupé, counsel for the Applicant Cedric Nahum, counsel for the Respondent Mother, J.K. Mellington Godoy, counsel for the Respondent Father, A.A.
HEARD: May 16, 2019 at Ottawa
labrosse J.
Reasons for Decision on REquest for Costs
Introduction
[1] This is a request by the Respondent Mother J.K. seeking an Order for costs against the Children’s Aid Society of Ottawa (“Society”) for the costs she incurred due to delay in having one of her children returned to her temporary care and custody. In support of her request for costs, she has filed an invoice from her counsel totalling $5,070.88.
[2] The Society has opposed the request for costs and brought its own motion for costs in the amount $2000.00 against the Mother and personally against the Mother’s counsel in relation to the preparation, service and filing of a factum and book of authorities, as well as the preparation of submissions and attendance at court to defend the Mother’s request for costs. At the conclusion of the Mother’s request for costs, there was no time to deal with the Society’s motion and it was adjourned pending the outcome of the Mother’s request for costs.
[3] The Society’s Protection Application relates to two children, X.K. (dob xx-xx-2016) and K.K. (dob xx-xx-2009). The Father of X.K., is A.A. and he did not participate in the costs proceedings. The whereabouts of K.K.’s father are unknown. The Children’s Lawyer appointed for K.K. was also present but did not participate.
[4] For reasons that follow, I conclude that the evidentiary record does not lead to the conclusions sought by the Mother and particularly the evidence does not suggest that the Society acted in a patently unfair and indefensible manner. Consequently, the Mother’s motion for costs is dismissed. The Society will advise if it still wishes to pursue costs against the Mother and personally against the Mother’s counsel.
Background
[5] The Society issued a Protection Application relating to the parents’ two children, X.K and K.K. on September 21, 2018, seeking a finding that the children were in need of protection and an order that they be placed in the interim care of the Society for a period of six months. The Mother is of Inuit heritage.
[6] The facts leading up to the September 2018 Protection Application began in October 2017 when the children were removed from the parents, after they were found to be at home with two very intoxicated men and the parents were passed out. The children were apprehended on October 1, 2017. On October 5, 2017, Blishen J. issued a temporary order placing the children in the care and custody of the Society pending disposition of the application.
[7] Plans of reintegration were discussed in November 2017 with a view of a reunification in the next three months to allow the parents to demonstrate a sustained effort of sobriety. On February 2, 2018, the children were returned to the care of their parents on a prolonged visit. The parents followed through with their support system and services and showed great commitment in bettering themselves. The Protection Application was withdrawn in favour of a voluntary service agreement on May 15, 2018.
[8] On September 18, 2018, the police attended the parents’ home as they were intoxicated and fighting in the street. The parents had X.K. with them. K.K. was with a neighbour. The neighbour was not prepared to care for the children. The police called the Society and the worker attended the home and brought the children to a place of safety.
[9] On September 21, 2018, Summers J. granted a temporary without prejudice order placing the children in the temporary care and custody of the Society.
[10] This was the second time the children had been brought into care in the previous 12 months. The Society was requiring that the parents engage in a strong support network to help them bring safety to the children.
[11] On October 15, 2018, Engelking J. granted an extension of time to the Mother for her to file her Answer and Plan of Care, on or before October 29, 2018.
[12] The Mother filed her Answer and Plan of Care on October 29, 2018, which sought the return of the children to the care of the parents. The Plan of Care listed four supports being Michael Sevents (TI), Ottawa Inuit Children’s Center (OICC) (activities and programs), Tiffany Sheshmmush (sister) and Tungasuvvingat Inuit (TI) (Family and child programming).
[13] The evidence suggests that the Society was less than proactive in the early months in moving the Mother’s file forward. There were three different workers who were assigned to the file as a result of staffing changes at the Society from September 2018 to December 2018. The current worker, Tamara Stard, became involved with the parents on December 4, 2018. The Society takes the position that this period of lesser activity was required to allow the Mother to follow through with the services. However the Society’s affidavit filed in support of its motion for costs does not set out the efforts of the Society to support the parents between September 21, 2018, until the current worker first met with the parents on December 4, 2018.
[14] At the December 4, 2018 meeting, the worker learned that the parents were attending Trauma and Addictions Recovery group once a week with elder Reepa Evic-Carleton but that the Father had missed three of the group sessions. The Mother advised that she was looking to participate in one-on-one support with an Addictions worker. That one-on-one counselling proceeded in January 2019. The Mother also advised that she was now pregnant and expecting her baby in August 2019.
[15] During a home visit on December 20, 2018, the parents advised the worker that the groups at OICC had ended, and Ms. Evic-Carleton was on a leave from the centre. The Mother advised that she would be reaching out to the addictions worker at Minwaashin Lodge. The Father said he had a list of Alcoholic Addictions meetings and was trying to connect with a previous counsellor at TI.
[16] On December 26, 2018, the children were at a visit with their parents and the parents received the support of police due to K.K. acting out with aggression and she was then transported to CHEO. She returned to her foster home the next day. K.K. continued to have difficulty and spent time between the foster home and CHEO.
[17] As of January 20, 2019, it is evident that the Society was concerned with the lack of progress made by the Father. The Mother had offered to have him leave the home if that is what the Society wanted. The Society explained that it was their decision to make.
[18] On January 29, 2019, the Mother filed a Motion seeking leave to file her affidavit late for the upcoming Temporary Care and Custody Motion. That affidavit, dated January 29, 2019, sets out why the Mother was of the view that she was in a position to have the children returned to her. She indicated that she stopped drinking in November 2018. The Mother also set out that she had done an initial assessment with Ottawa Addictions Access and Referral Services (OAARS) in October 2018 and that the parents started Trauma and Addictions Recovery program that ended in late December 2018. The parents were waiting to be informed as to when it will restart and the Mother began one-on-one support meetings with an addictions worker on January 10, 2019. A support letter from the counsellor indicated that the counsellor was willing to continue meeting with the Mother.
[19] With respect to the Father, the Mother’s January 29, 2019 affidavit does not state for how long he had been sober, only that he was. He had found an addictions counsellor and was going to meet her as soon as possible. The Mother also said that the Father was prepared to move out until he could satisfy the Society that he started his addictions counselling. While the Mother was seeking the return of X.K., she agreed that an appropriate plan needed to be in place for K.K.
[20] During this period leading up to the February 1, 2019 Temporary Care and Custody motion, the parties had agreed that the child K.K. should remain in the temporary care of the Society given that she was displaying significant behavioral issues, which the parents struggled with, even prior to her coming into care.
[21] The February 7, 2019 Decision of MacEachern J. highlights that it was premature at that time to have either child return to the care of the parents. The decision highlights the progress of the Mother having completed the OAARS assessment in October 2018, attending a weekly Trauma and Addictions Recovery program, individual counselling which started on January 10, 2019, parenting programs and Healing Circles. The Court added that the parents may wish to bring a motion seeking the return of X.K. to their care in the near future with further evidence of the progress made by the parents in the various programs, the development of a safety plan to address risks of harm and possible terms and conditions of an interim supervision order that may address risks of harm. The Court makes no comment about any issues with the work done by the Society since the children were brought to a place of safety.
[22] In the weeks following the February 7, 2019 Decision, counsel for the Mother took steps to notify the Society that he felt that not enough was being done to support the reintegration of X.K. to the parents’ care. The worker was accused of having a lackadaisical attitude on this file and causing delays. However, there were no such concerns expressed by the Mother in her affidavit dated January 29, 2019.
[23] On February 27, 2019, the worker participated in a support network meeting for the Mother who was accompanied by a non-professional support and three professional supports. The Mother advised at that time that the Father had left the home and that she wanted to present a plan to care for her children, independent of the Father. The Mother presented a list of involved supports. At that meeting, the Mother again confirmed that she had maintained her sobriety since November, 2018.
[24] In early March 2019, counsel for the Mother addressed further critical comments to the worker and indicated that the Mother shared his views. On March 5, 2019, counsel for the Mother forwarded a detailed list of supports for the Mother to counsel for the Society. It is assumed that this was the same list that was provided to the worker on February 27, 2019, however it is apparent that counsel for the Society did not receive it until March 5, 2019.
[25] A meeting was held with the Mother and her support on March 6, 2019. According to the Society, both the Mother and her support denied that they had any concerns with the workers involvement. The worker offered to transfer the file to another worker but the Mother stated that she did not want a change of worker. This evidence was not challenged.
[26] On March 6, 2019, the worker met with the Mother to discuss the return of X.K. on an extended visit and for the amendment of the Society’s application in favour of a Supervision Order. The worker explained that due to the Father’s lack of active involvement with supports, the worker continued to view him as a potential relapse and risk to the children. The worker requested that the Father not be in the family home until agreed to by the Society.
[27] On March 7, 2019, the Society amended its Protection Application in favour of a return of X.K. to the Mother subject to a temporary supervision order. The return date of the Amended Protection Application was March 22, 2019. This was scheduled prior to an upcoming network meeting scheduled for March 20, 2019.
[28] On March 11, 2019, X.K. was sent to the Mother’s home on an extended visit and then on March 22, 2019, the Society’s Amended Protection Application proceeded with the consent of the parents.
[29] In the Mother’s March 15, 2019 affidavit used in support for her request for costs, she confirms her support for the Amended Protection Application and that she will be seeking costs against the Society at the Motion. She states that as of the February 1, 2019 Temporary Care and Custody Motion, all her supports were in place. She acknowledges that her plan included A.A. but that she was prepared to have him leave the home. The Mother also complains as to how the temporary care and custody motion was handled before Justice MacEachern. This complaint was echoed by her counsel during the hearing of this request for costs.
[30] In her affidavit, the Mother complains that although she had just recently provided the Society with a comprehensive list of supports that she had outside Ottawa, she states that the worker already knew about this on February 1, 2019. No evidence was filed to support this position other than the list of supports provided to the Society on February 27, 2019.
[31] On March 22, 2019, Engelking, J. signed an Order placing X.K. in the temporary care and custody of the Mother, subject to supervision.
Mother’s Position
[32] The Mother advances that the Society must be held accountable and that only a court can do so. Briefly put, the Society’s inaction on this file amounts to bad faith and this is particularly the case in light of the recent amendments to the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. (“CYFSA”). The Mother states that there are too many Indigenous children in care and that the Society needs to change its practices.
[33] The Mother relies on the amendments to the CYFSA to demonstrate an intent to deal with First Nations, Inuit and Métis families with more care and diligence to address the Truth and Reconciliation Report.
[34] The Mother states that after the incident that led to the apprehension, there was no other evidence that the parents were struggling. She also states that in the months following the apprehension, she was required to access her supports on her own without a meeting with a worker until December 4, 2018.
[35] The Mother further states that a number of the supports listed on the February 27, 2019 list were already in the Mother’s Plan of Care and that otherwise the Society was aware of them. Moreover, although there was discussion about support network meeting in December 2018, such a meeting was not held and that the worker should have been more proactive in asking for more information.
[36] In the end, the Mother states that X.K. remained in care for several months too long and that the Society must change its practices to avoid this happening again. The Mother therefore seeks for the Society to pay costs for the delay.
Society’s Position
[37] The Society’s position is that there is no evidence that it acted in bad faith. The Mother is looking to second-guess the February 7, 2019 Decision of MacEachern J. The Society relies on the fact that Justice MacEachern stated that it was premature to return the children to the Mother but encouraged that this could happen soon if the Mother’s progress continued. If the Mother was not satisfied with MacEachern’s J. Decision, she should have appealed.
[38] The Society states that the progress in the file is seen after December 2018 with in-home visits, various meetings and that after the Mother presented her own plan at the end of January 2019 things intensified towards the March 7, 2019 Amended Protection Application. In the end, there is no evidence to support a finding of bad faith.
The Law
[39] Subrule 24(2) of the Family Law Rules, O. Reg. 114/99. (“Family Law Rules”) sets out that in a child protection case there is no presumption that the successful party is entitled to a costs order.
[40] The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection. It should not be dissuaded from the pursuit of its statutory mandate by costs considerations: see: Children’s Aid Society of Ottawa- Carleton v. S., [2003] O.J. No. 945 (SCJ – Divisional Court).
[41] Justice Chappel conducted a thorough review of the case law concerning costs claims against child protection agencies in Children’s Aid Society of Hamilton v. K.L., 2014 ONSC 3679, 2014 O.J. No. 2860 and set out the following principles:
a. Child protection agencies do not enjoy immunity from a costs award.
b. The starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.
c. 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.
d. The high threshold of "bad faith" is not the standard by which to determine a claim for costs against a child protection agency.
e. 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.
f. 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.
g. Important factors to consider in deciding whether costs against a Society are appropriate include the following:
i. Has the Society conducted a thorough investigation of the issues in question?
ii. Has the Society remained open minded about possible versions of relevant events?
iii. Has the Society reassessed its position as more information became available?
iv. Has the Society been respectful of the rights and dignity of the children and parents involved in the case?
v. In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society's efforts to diligently carry out its statutory mandate of protecting children.
[42] A child protection agency should neither be rewarded nor punished by an order for costs, but rather it should be held accountable. See: Children’s Aid Society of Brant v. D.M.C. and J.C., [1997] O.J. No. 3145 (OCJ).
[43] The lens through which the society’s conduct is viewed is that of the properly informed, reasonable person, considering the society’s conduct and the prejudice caused to the child or parent by that conduct: see: Catholic Children’s Aid Society of Toronto v. S.V., 2000 O.J. No. 5866 (OCJ).
[44] Once liability for costs is established in a child protection proceeding, the court must determine the appropriate amount of costs, having reference to the provisions of Rule 24: see: Children’s Aid Society of Halton v. J.S., supra; Children’s Aid Society of Hamilton v. K.L., supra.
Analysis
[45] I agree with the Mother that in considering her request for costs, that such a request must be considered in light of the recent amendments to the CYFSA that emphasize the special considerations applicable to First Nations, Inuit and Métis children. This approach is reflected in the preamble of the CYFSA which sets out the following:
Further, the Government of Ontario believes the following:
First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.
Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.
For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.
[46] It is within this framework that the Court of Appeal for Ontario identified the intent of the CYFSA in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316.
[47] Additionally, while the Mother claims that the Society’s delay in properly moving the Mother’s file forward amounts to bad faith, this is not the standard by which the Mother’s request should be analyzed. The test is more general to assess the proceedings and ask ourselves if the public at large would perceive that the Society has acted in a patently unfair and indefensible manner: see CAS Hamilton v. K.L.
[48] The analysis cannot however be done in a factual vacuum. The factual matrix is essential to any costs analysis but this must be considered in light of the special considerations for First Nations, Inuit and Métis children.
[49] I begin by noting that the manner in which this file began was surely less than desirable. The children were brought to a place of safety on September 18, 2018. Three workers were assigned to the Mother before the first meeting was first held with the Mother on December 4, 2018. This certainly raises eyebrows and merits that the Court have a close look at the impact of this period on the conduct of the file.
[50] It is obvious that the Society approached the current application with concern given that the safety plan put in place in February 2018 had not been successful. Further, as at December 4, 2018, it was clear that the Father had not fully engaged in his recovery group as a result of missed group sessions and as of December 20, 2018, the parents were waiting to commence ongoing counselling in the new year.
[51] Further meetings were held with the parents and it became evident at the end of January 2019 that the Mother’s sobriety had only started on November 18, 2018 and that there were significant questions about the Father’s sobriety and his development of a relapse prevention plan.
[52] I firmly disagree with the Mother that there was any injustice or racism in the manner that the Temporary Care and Custody motion was conducted as she suggested at the motion. The suggestion that there was institutional racism against the Mother because the Society obtained leave to file its material late is without foundation. There is no evidence to support such an allegation and in fact, the Mother also received consents to file late at times. If there was a problem with how the Temporary Care and Custody Motion was held, the Mother should have appealed the decision rather than make baseless accusations during the hearing for costs.
[53] While giving special considerations for Inuit children, the reality is that the Mother had simply not demonstrated a sufficient period of stability leading up to the February 1, 2019 motion to allow for the result to be any different.
[54] Contrary to the statements made by the Mother during this motion, the evidence does not support that the Society was fully aware of all of the Mother’s supports as at February 1, 2019, and even less in the Mother’s Plan of Care. In that Plan of Care, there are four supports listed and this is nowhere near the comprehensive list received by the Society on February 27, 2019.
[55] The reality is that within one month of MacEachern’s J. Decision on the Temporary Care and Custody Motion, the Society had amended its Protection Application to move for X.K. to be placed in the temporary care and custody of the Mother.
[56] I specifically reject the Mother’s claim that she was in a position to have X.K. returned to her months prior to March 11, 2019. The Mother’s bald accusations of delay and bad faith are simply not reflected in the evidentiary record. I come to this conclusion for the following reasons:
a. The Mother’s period of sobriety commenced on November 18, 2018, and there were significant questions about the Father’s sobriety;
b. The evidence leading up to February 1, 2019 and after demonstrates that the Mother’s process towards sobriety and stability continued to be fluid and her counselling and supports were ongoing. Even after the February 7, 2019 Decision of the court, the plan for X.K. to return but not K.K., the questions about the Father’s role and the ongoing counselling, support meetings and parenting programs were developing. This resulted in a continual need to reassess where the Mother’s progress was at;
c. While the period from September 18, 2018 to December 4, 2018, raises some questions about a delay in the Society engaging with the Mother, the reality is that she was not sober during part of this period and that it effectively had no impact on the progression of the Mother’s file. I reject any suggestion that the Mother was in a position to have X.K. returned to her prior to March 2019;
d. Until the end of February 2019, the Mother took insufficient steps to formally have the Father removed from her plan and confirm his absence from the family home. I am of the view that it is insufficient to simply say that they were prepared to have him move out and not take any steps to give effect to it;
e. The evidence leads me to conclude that the Mother’s support network was not formally communicated to the Society until February 27, 2019, and I reject the Mother’s contention that it was up to the Society to pursue the Mother for her support plan. The evidence suggests that the Society made it clear to the Mother that her support network was essential to the return of the children and that the existence of a support network was presented to the Society at the February 27, 2019 support network meeting with the Mother. From there, the Protection Application was amended on March 7, 2018; and,
f. Finally, the Society did take steps to arrange for the return of X.K. on an extended visit as of March 11, 2019, and by proceeding with the Amended Protection Application prior to the March 20, 2019 support network meeting.
[57] As previously stated, other than the initial period of delay in meeting with the Mother, during a period where she was still not sober and had only commenced group counselling, I am of the view that the matter of the return of X.K. progressed at a rather rapid pace. This initial period did not in my view delay the return of X.K. to the temporary care of the Mother. I question if Justice MacEachern had it in her mind that X.K. be returned to his Mother five weeks after her decision when she suggested that the Mother may want to bring a further care and custody hearing after further evidence of the parents’ progress became available.
[58] With this said, has the Society acted perfectly? It would be unfair to require such a standard to the Society. Has it recognized the special considerations for First Nations, Inuit and Métis children as set out in the CYFSA? The worker’s March 7, 2019 affidavit highlights that she has worked on a specialized team identified to work with First Nations, Inuit and Métis families. She recognizes that the Society must work exceptionally hard to support these children living safely within their family and community. On the evidence before me, I conclude that the Mother has failed to demonstrate any unfairness to the Mother. While there were a few weeks where there is little activity in the evidence, this transpired during periods where the Mother was expected to be progressing with her counselling and programming. My overall assessment is that once this worker became involved on December 4, 2019, the file was properly handled, in keeping with the objectives of the CYFSA.
[59] As I return to the assessment of the public at large and if it would perceive that the Society has acted in a patently unfair and in an indefensible manner, I soundly conclude that the public would not come to such a conclusion. I therefore find that no costs should be awarded against the Society.
Society’s Motion for Costs
[60] At the conclusion of the argument for this request for costs, there was insufficient time to consider the Society’s motion for costs against the Mother and/or her counsel.
[61] In this decision, I have highlighted some observations on how this file was handled since September 2019. I have no difficulty with a party highlighting to the Society that they feel the objectives of the CYFSA for First Nations, Inuit and Métis families are not being met. That message need not be delivered in an aggressive manner that personally attacks a worker. It is not clear at this point if an order for costs against the Mother or the Mother’s counsel is the manner to address these issues, however I am willing to hear from the parties on the Society’s motion for costs.
[62] If the Society seeks to have me adjudicate on that motion, they may make arrangements with the trial coordinator to have that re-scheduled. Should the motion date be re-scheduled, that will be the Mother’s counsel’s opportunity to be heard as required by Rule 24(9) of the Family Law Rules.
Conclusion
[63] The Mother has failed to demonstrate that the Society’s conduct throughout these proceedings falls within the range of circumstances, which would require an order of costs against it.
Mr. Justice Marc R. Labrosse
Released: July 11, 2019
COURT FILE NO.: FC-17-1979 DATE: 2019/07/11 ONTARIO IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 AND IN THE MATTER OF S.L. born xx‑xx‑2014 and B.L. born xx‑xx‑2008 BETWEEN: The Children’s Aid Society of Ottawa Applicant – and – J.K. (Mother) A.A. (Father) Respondents REASONS FOR JUDGEMENT Labrosse J. Released: July 11, 2019