Court File and Parties

COURT FILE NO.: FC-06-FO-000981-0005

DATE: 2021-05-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Family and Children’s Services of Renfrew County, Applicant

AND:

M.B., Algonquins of P[...], S. and S. D., C.F.K, N.A., K.A., Respondents

BEFORE: Justice Mary A. Fraser

COUNSEL: Anais Lussier-Labelle, Counsel for the Applicant Jenny Friedland, Counsel for the Respondent, M.B. Katherine Hensel, Counsel for the Respondent, Algonquins of P[...] Gonen Snir, Counsel for S. and S. D. Mary Birdwell, Legal Representative for the Children

HEARD: In writing

ENDORSEMENT

[1] A Final Order was made in this proceeding on November 9, 2020. At that time, on consent, the Applicant, Family and Children’s Services of Renfrew County (“FCSRC”) withdrew its Status Review Application and Amended Status Review Application of a child in Extended Society Care. The only issue which was not addressed as part of the final disposition of the proceeding was costs. That issue was to be addressed by the parties making written submissions.

[2] As such, the issue now before me is whether this Court should award costs against FCSRC. Counsel have each provided me with their written submissions on that issue. Those submissions outline the chronology of events and their position on this issue.

[3] I am to decide the following:

A. Should there be an order for costs ordered payable to the Respondents, S. and S. D. by FCSRC;

B. Should there be an order for costs ordered payable to the Respondent, M.B. by FCSRC;

C. Should there be an order for costs ordered payable to the Respondent, Algonquins of P[...] by FCSRC.

Background facts:

[4] The children who are the basis for this Application are S.K., born […], 2005, and Z.A.-K., born […], 2008. They were 11 and 8 years old at the commencement of the proceedings.

[5] C.K. is the children’s biological mother. K.A. is the father of S.K. and N.A. is the father of Z. A.-K. None of the children’s biological parents participated meaningfully in these proceedings, C.K. attended one court appearance.

[6] S.K. and Z. A.-K. were made Crown wards with access (now referred to as being placed in Extended Society Care) on August 20, 2012 after a lengthy trial. They have resided with the foster parents, S. and S. D. since July, 2010.

[7] The children have First Nation heritage and are registered with the Algonquins of P[...]. Although efforts were made to place the children in the care of an indigenous foster family, none was available at the time they were brought into care which led to the placement with S. and S. D., a Caucasian family.

[8] M.B. is the children’s maternal grandmother. She was awarded court ordered access as this contact was determined to be beneficial and meaningful. M.B.’s commitment to the children has remained consistent throughout FCSRC’s involvement and is not in question.

[9] A chronology of the history leading up to this proceeding as provided by FCSRC can be outlined as follows:

A. S.K. was in M.B.’s care from September 26, 2006 to July 24, 2009 pursuant to a section 57.1 Custody Order dated September 10, 2008. Z. A.-K. was placed in M.B.’s care as of May 12, 2009;

B. The children were removed from M.B.’s care on July 24, 2009 and brought to a place of safety;

C. The children were placed with S. and S. D. in July, 2010;

D. Mr. S.D. moved to the United Kingdom for work in the summer of 2011. Ms. S.D., S.K. and Z. A.-K. joined Mr. S.D. for the summer but then returned to Renfrew for 2011‑2012 school year;

E. After trial, Selkirk J. ordered that the children be made Crown wards with no access on December 12, 2011;

F. Ms. S.D., S.K. and Z. A.-K. moved to the United Kingdom to join Mr. S.D. in February, 2021;

G. An Appeal of the trial decision was granted on August 3, 2012. The decision of Selkirk J. was set aside and a new trial ordered;

H. Kirkland J. ordered that the children be made Crown wards with access to M.B., and supervised access to C.K. and N.L. (uncle) as determined by FCSRC. Access provision of the Order indicated that access would be expanded upon the foster family’s return from the United Kingdom in keeping with the children’s best interests;

I. An Appeal of Kirkland J.’s decision to the Superior Court of Justice was dismissed on December 6, 2013;

J. An Appeal to the Court of Appeal was dismissed on September 23, 2014;

K. Leave to appeal to the Supreme Court of Canada was dismissed on January 15, 2015;

L. M.B., the Band, S.D., a representative from the OCL, and FCSRC representatives attended a Circle on May 8, 2015. An agreement was reached with respect to access and services for the children.

M. On July 9, 2015, FCSRC learned that S. and S. D. had returned to Renfrew County. They had not informed FCSRC despite inquiries to them.

N. A reunification assessment on M.B. was completed on June 23, 2016;

O. On June 24, 2016, the children began refusing to go on access visits;

P. FCSRC representatives and the Band met on November 28, 2016 to discuss issues, including failure of FCSRC to follow through with access;

Q. A Status Review Application for Crown wards was commenced December 8, 2016;

R. On January 30, 2017, March J. added S. and S. D. as parties to the proceedings.

S. On May 29, 2017, March J. released a decision with respect to interim access. However, access did not resume in accordance with decision.

T. On November 12, 2017, a Circle took place between the parties and their counsel;

U. On May 26, 2018, another Circle took place;

V. On March 11, 2020, a further Circle took place with M.B., her lawyer and the Band as part of a series of individual meetings;

W. On September 9, 2020, a virtual Circle took place with all parties;

X. On November 9, 2020, following FCSRC’s Notice of Motion, a Final Order was made, on consent of all parties, allowing FCSRC to withdraw its Application.

Position of FCSRC:

[10] FCSRC maintains that despite a mediated agreement between the parties on May 8, 2015, which was intended to demonstrate a commitment to move forward, the scheduling of access was extremely difficult. It maintains that S. and S. D. would cite other commitments which impeded the scheduling of visits. S. and S. D. expressed concern to FCSRC that sending the children for visits was sending them into a potentially harmful situation by allowing access at the home of M.B. However, even phone access was not being adhered to.

[11] FCSRC asserts that while it arranged for a “reunification assessment” to be conducted, this did not mean that reunification would necessarily occur and this was made this clear to the parties. FCSRC advises it was concurrently planning and that it also hoped that this assessment might alleviate some of the safety concerns felt by S. and S. D.

[12] FCSRC asserts that it also made it clear that the contents of this assessment were not to be shared with the children. Notwithstanding, as soon as the assessment was released, the children began to resist contact with M.B. FCSRC then embarked on several strategies aimed at resetting access with M.B. over the course of the next 5 months and that none of the strategies proved successful and access did not resume.

[13] At this point FCSRC felt it could be reasonably concluded that S. and S. D. were not supporting the children’s relationship with M.B. and that the children’s views on this issue were being influenced. It concluded that S. and S. D. were not meeting what was required of them as a foster family and M.B. had been identified as a potential safe caregiver for the children.

[14] Because of this, FCSRC brought a Status Review Application for Crown wards (as it was then known) and sought to place the children in the care of M.B. subject to Society supervision.

Position of the S. and S. D. (foster parents):

[15] S. and S. D. assert that FCSRC brought the Status Review Application seeking a placement with M.B. without due regard for the on-going challenges the children were experiencing with visitation and without first considering more measured and positive steps.

[16] S. and S. D. allege that FCSRC laid the entire blame for the communication and access issue entirely on S. and S. D. and take the position that it ought not to have taken such an extreme measures to remove them from “the equation,” rather than trying to get to the root of the issues by trying to build stronger communications mechanisms with the girls and to rebuild their trust.

[17] S. and S. D. assert that FCSRC did not consult with and/or improperly refused the assistance of other agencies/resources when such measures which would have been less drastic were available.

[18] S. and S. D. also assert that their expressed concerns with M.B.’s alcohol issues were properly founded.

[19] In taking the position it did, S. and S. D. also assert that FCSRC ignored the fact that the children had been living in a stable environment for 7 years and failed to investigate the children’s best interest.

[20] S. and S. D. assert that in initiating the status review proceedings, the children were heavily impacted and that in order to fight for their best interests, S. and S. D. were compelled to use their savings to retain a lawyer and respond.

Position of M.B.:

[21] M.B. asserts that FCSRC pursued reunification with M.B. as a result of difficulties it was having with S. and S. D. She maintains that FCSRC did not seek solutions to those difficulties that included all the parties and that the commencement of a status review application was disproportionate to the issues at hand.

[22] M.B. asserts that FCSRC’s decision to pursue “permanency planning” and possible reunification with M.B. exacerbated the loyalty bind that these children already faced and forced them to choose between their foster family and their grandmother. Had FCSRC consulted with counsel or ascertaining the needs of the children, she maintains that the “poor” decision to commence litigation would not have followed.

[23] M.B. asserts that she has been treated the most unfairly as a result of these proceedings and the most negatively impacted by the decisions made by FCSRC. M.B. maintains she is the only party to the litigation who came with clean hands.

[24] M.B. asserts that the Society did not commence the Application because the children were in need of protection, but rather, because it took issue with and was trying to alter the very care arrangement it had authored.

[25] She claims the errors in judgment by the FCSRC were as a result of its failure to ascertain the views of the children and its failure to appreciate the loyalty bind the children were already in and the obvious prospect that if forced to choose, they would reject their grandmother.

Position of the Respondent, Algonquins of P[...]:

[26] The Algonquins of P[...] assert that FCSRC failed to meet its statutory obligation to consult P[...] prior to commencing a status review and that it failed to reassess its position on the Application in a timely manner as more information became available.

The Law:

[27] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended. It provides that subject to the provisions of an Act or rules of courts, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid.

[28] Rule 24 of the Family Law Rules, O.Reg. 114/99, as amended, sets out a number of principles to guide the court in the exercise of its discretion.

[29] The presumption that a successful party is entitled to the costs of a proceeding does not apply in a child protection case or to a party that is a government agency. (See: Rule 24(2) of the Family Law Rules). The term “government agency” as defined in Rule 2, includes a society.

[30] Rule 24(3) provides that the court has discretion to award costs to or against a party that is a government agency, whether that agency is successful or not. Rule 24 sets out factors to consider in deciding whether to make a costs award.

[31] The special approach to costs claims in child protection matters recognizes the importance of the 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. Indeed, 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. (See: Children’s Aid society of Ottawa-Carleton v. S., 2003 CanLII 88994 (ON SCDC), [2003] O.J. No. 945 (Ont. Div. Ct.); Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 367).

[32] The following principles apply when determining whether to make a costs award against a society:

1. A society has no immunity from a costs award.

2. As a general rule, child protection agencies should not be penalized in attempting to carry out their statutory mandate under the Province's child protection legislation.

3. Protection agencies are not ordinary litigants. The society has a mandate to protect children, and children have a right to be protected.

4. As part of its duty to act with fairness and reasonableness in carrying out its statutory responsibilities, a society must exercise good faith, due diligence and reason in its investigations. A society is not free to assume that "if there is smoke, there must be fire".

5. Nowhere is a society authorized, in the name of the powers entrusted to it by the legislature, to ignore or trample on a parent's rights.

6. The essential test for the appropriateness of an award of costs against the society is whether the society should be perceived by ordinary persons as having acted in a patently unfair or indefensible manner.

7. An ordinary person perceives a society as having acted fairly in the following circumstances:

(a) before launching a court proceeding, the society has undertaken a thorough investigation on allegations or evidence of a child's need for protection;

(b) as part of its thoroughness, the society has recognized and acted on its duty to look beyond an allegation for corroboration or independent evidence of it;

(c) as part of its thoroughness, the society, mindful of its duty under section 15 of the of the CYFSA, to ensure that children and parents have an opportunity, where appropriate, to be heard and represented when decisions affecting their interests are made, has interviewed the person who is alleged to have created the need for protective intervention, invited that person to have counsel involved, permitted that person an opportunity to reply to the allegation, and then weighed the competing versions for their likely reliability and credibility ‐ before the society proceeds to "validate" the allegation and draw the unequivocal conclusion that the need for protection exists;

(d) the society has demonstrated its openness to any version of the events that is offered, including the version offered by the person against whom the allegation is made;

(e) as part of its thoroughness, the society is alert to rancour that might reasonably be animating the allegations;

(f) the society reassesses its position as more information becomes available, even if a court hearing is in session at the time. In short, it is to continue its investigation up to the time of a final court determination of the alleged need for protection, and do so in a vigorous professional manner; and,

(g) the society is to investigate all pieces of relevant information, not just those pieces for which there is uncontroverted proof.

8. The society's good faith will not relieve it of an award of costs against it. It will, however, preclude an award of costs other than in accordance with the normal tariff.

(See: Children’s Aid Society of Waterloo Region v. C. (Z.B.), 1996 CanLII 4742 (ON CJ), 1996 O.J. No. 4245; Children’s Aid Society of Niagara Region v. W.D. (2004) 1 R.F.L. (6th) 117 (Ont. Div Ct).

[33] There is one other consideration in awarding costs against a society that has also been touch upon in many cases. This is the principle of accountability. As stated by Agro J. in Children’s Aid Society of Brant v. D.M.C., 1997 CanLII 9575 (ON CJ), [1997] O.J. No. 3145:

“Costs are neither reward nor punishment. In my view, it is not fairness that is the issue in the exercise of discretion under section 131 of the Courts of Justice Act. Rather it is the accountability for the manner in which any litigant presents its case and expedites a reasonable resolution, whether by settlement or at trial. In the case of a children’s aid society, this accountability is for the manner in which it investigates its case and presents it to the court measured against the background of the statutory requirements of the Child and Family Services Act. In the absence of an award for costs, there is no such accountability.”

Analysis:

[34] In all of the circumstances, I am satisfied that no order for costs is should be made in this case.

[35] The juxtaposition of the positions taken by the responding parties, even through all are claiming costs from the FCSRC, in my view, underlines why a cost order is not appropriate in this instance.

[36] S. and S. D. do not dispute that there were issues with access when the FCSRC initiated a reunification assessment. To the contrary, they do not deny access was problematic. S. and S. D. believed that there was legitimacy to their concerns, principally to do with their concern that M.B. had alcohol abuse issues. They point out that even after the bringing of the Status Review Application, M.B. was charged with impaired driving.

[37] While the reunification assessment continued to support the continued placement of the children with S. and S. D. given the bonds that had formed during the long term placement in their care, the assessment did not suggest or otherwise raise the concerns respecting M.B. that S. and S. D. maintained existed.

[38] M.B., on the other hand, maintains that she is the only “innocent” party here even though there were the past issues with her care of the children or possibly some legitimate concerns respecting her use of alcohol.

[39] The reasonableness of the decision to commence and pursue its Status Review Application cannot be judged in hindsight. Rather it must be examined from the perspective of what the ordinary person would have surveyed when and as the litigation unfolded.

[40] On the whole of the evidence, based upon what the Society had available to it in investigatory information at various times throughout its interaction with the foster parents, I do not conclude that the FCSRC embarked upon unfair dealing that should be addressed by a cost award. It acted based upon the information it had. It attempted to further its investigation by obtaining an assessment. It seems that the dissemination of the conclusions of the assessment to the children added to the problem. While unfortunate, the decision to obtain an assessment did not in my view constitute an unfair dealing. It was a reasonable step which was taken when one objectively considers what options were available to it. At that point in time, FCSRC was attempting to address an apparent reluctance by the foster parents to promote and facilitate the access which had been court ordered, and this was compounded once the results of the assessment were known by the foster parents and suddenly all access by the children was refused.

[41] As stated by Katarynych J. in Catholic Children’s Aid society of Toronto v. M.C., 2015 ONCJ 427 at para. 122, the “[f]air dealing” duty includes movement of litigation forward for adjudication of the merits of the agency’s claims when difficulty in engagement is paralysing the progress of the case.”

[42] I believe that the ordinary person, statute in hand, would point out that the passage of time in foster care with insufficient access to those intended to have continuing contact with the children, would result in an erosion of those relationships over time and warrant action to address same.

[43] The importance of this contact is made even greater when one considers the need to ensure that the children remain connected to their Indigenous community and culture.

[44] It is clear that FCSRC willingly participated and encouraged the parties to find solutions through alternative dispute processes in consultation with the Band and through a number of Circles such processes did ultimately bring the parties to a resolution.

[45] As the proceeding progressed, I am satisfied that FCSRC continued to assess the merit of its position and did not become entrenched in its position. It was prepared to continue to assess the merit of its position and was prepared to withdraw its Application and in fact did so on the basis of the terms agreed upon by all of the parties.

[46] Given the history of this matter and the complex and difficult dynamics at play, I am not satisfied that there has been any clear misstep taken by FCSRC or unreasonable delay in this instance that warrant an order of costs. This longstanding dispute has unfortunately negatively affected all of the Respondents and the children. However, I do not conclude that an ordinary person would perceive FCSRC to have acted in a patently unfair and indefensible manner.

Disposition:

[47] Based on the foregoing, there shall be an Order as follows:

1. There shall be no costs payable in connection with the Society’s Status Review Application.

M. Fraser, J.

Date: May 28, 2021