Court File and Parties

COURT FILE NO.: FC -17-FO283-002 DATE: 2023-05-15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children’s Aid Society of the Regional Municipality of Waterloo, Applicant AND: J.P., mother R.H., father Qualipu Mi’Kmaq First Nation, Band M.B. and C.B., kin caregivers

BEFORE: Justice M. Tweedie

COUNSEL: Eric Smith, counsel for the Applicant Brent Balmer, counsel for the mother Father, self-represented Qualipu Mi’Kmaq First Nation, not participating Scott Grainger, counsel for the kin caregivers Valeria Ruoso, Office of the Children’s Lawyer

HEARD: In Writing

Costs Endorsement

[1] The respondent mother brought a motion, which I heard on September 21, 2022, and for which I released my decision on October 17, 2022: CAS v. J.P. et al, 2022 ONSC 5793. As a result of intervening events, the final costs submissions were to be filed by March 15, 2023.

[2] Even though my endorsement indicated that submissions were to be no more than three pages, double spaced, with caselaw hyperlinked, the Society’s responding submissions were 10 pages long, with an additional 138 pages of attachments which included pleadings, and historical affidavits, some of which were not before the court for the argument of the motion. I have reviewed the Society’s submissions, but not the affidavits and pleadings attached to them.

Background

[3] On September 21, 2022, I heard the mother’s motion seeking a temporary order placing the child in the care of former kin caregivers (who, prior to being kin caregivers, were foster parents to the child) subject to Society supervision. At the time that the mother brought her motion, the existing order was a temporary order placing the child in the care of his father, subject to Society supervision. The father resided in the jurisdiction of the Children’s Aid Society of the Region of Peel (“Peel CAS”) who was supervising the placement on the Society’s behalf. However, the father was arrested on criminal charges, incarcerated, and denied bail. At the time of the motion, the child remained in the father’s home, placed in the care of the father’s partner, pursuant to a temporary without prejudice order granted on the first return of the mother’s motion. At the motion before me, the Society sought a temporary with prejudice order placing the child in the care of the father’s partner, subject to Society supervision. More fulsome details regarding the history of the matter can be found in my endorsement for the motion.

[4] My decision was to grant a temporary order that the child be placed in the care of the kin caregivers, subject to Society supervision.

The Law

[5] The Ontario Court of Appeal in Children’s Aid Society of the Region of Peel v. L.M., 2022 ONCA 379, 72 R.F.L. (8th) 1, held the following about costs awards against child protection agencies:

[30] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, gives the court discretion to determine the costs of the proceeding. Here, the Family Law Rules applied on the motion.

[31] Under those Rules, the general presumption is that a successful party is entitled to its costs: r. 24(1). However, Children’s Aid Societies are treated distinctly from other parties in a family law proceeding. Section 24(2) provides that the presumption of costs to the successful party does not apply in a child protection case or to a party that is a government agency. At the same time, s. 24(3) empowers a court with discretion to award costs to or against a party that is a government agency, whether or not it is successful.

[32] The jurisprudence elaborates on the proper exercise of this discretion. Children’s Aid Societies are presumptively protected from costs awards in order to encourage them to act in the best interests of the child. As Chappel J. explained in Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679, at para. 13:

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.

[33] Justice Chappel went on to summarize the general principles animating costs against a Children’s Aid Society, at para. 14:

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 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 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.

[34] In making a costs decision, as in all family law decisions, the court must bear in mind the primary objective of ensuring the case is dealt with justly: Family Law Rules, s. 2(2). Rule 2(3) further elaborates. Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties, (b) saving expense and time, (c) dealing with the case in ways that are appropriate to its importance and complexity, and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

Position of the Parties

[6] The mother states that she is entitled to costs because she was successful in her motion, and that the Society failed in its procedural obligations in this matter. The mother submits that the Society failed to bring a motion to change the child’s placement, delegated its investigation to Peel CAS and failed to obtain adequate disclosure, did not take adequate steps to obtain information about the father’s prospects of release, and did not properly participate in the mother’s motion as they did not bring a cross-motion or present an alternate plan.

[7] The Society submits that costs should not be ordered against the Society. The Society submits that it did not act in a manner that would be perceived as patently unfair and indefensible. It submits that it was appropriate to take a cautious approach in assessing plans. There is a history of multiple placement changes for the child. Justice Walters, in an earlier decision on a temporary care hearing, (2021 ONSC 7691) identified concerns with the kin caregivers’ ability to meet the child’s needs. The Society also submits that there was no obligation for it to bring a motion, and that it did not improperly delegate its responsibilities to Peel CAS since Peel CAS had jurisdiction to investigate the matter as the child was residing in Peel Region at the time of the father’s arrest.

Analysis

[8] Although the Society was unsuccessful in the motion, the position taken by the Society was reasonable. The issues before the court on the motion were complex due to the lengthy history of involvement, the conflict between the parties, the Black and Indigenous heritage of the child, and the involvement of former foster parents as kin. Further, Walters J. had previously found that the kin had subjected the child to emotional harm, did not support or embrace his Black heritage, and lacked understanding of the impact that racism would have on the child throughout his life. In my motion decision, I note concerns regarding the kin plan, as well as the father’s partner’s plan. It was not unreasonable for the Society to support a placement with the father’s partner, with whom the child had resided for several months.

[9] For the following reasons, I do not find that it was patently unfair or indefensible that the Society had not yet brought a motion regarding placement before the mother brought her motion:

a. The mother brought her motion only two and a half weeks after the Society became aware of the father’s arrest. b. The Society was required to take a cautious and mindful approach in its assessment of the child’s situation, particularly given the history of multiple placements. c. The Society learned that the father was arrested on July 28, 2022, but no information was provided to the Society about the nature of the charges. The Society worker immediately and diligently began making several calls to various individuals to obtain information about the charges but did not receive any definitive answer about those charges until August 11, 2022. It was not until that point in time that the Society had a full appreciation of the nature of the potential risk that it was required to assess. d. The child had been assessed by Peel CAS as being immediately safe in the care of the father’s partner. It was reasonable and appropriate for the Society to allow the child to remain there while it conducted its assessment. While it would have been necessary for the existing order to change eventually, it was the mother who chose to bring the motion instead of waiting for the Society to do so.

[10] However, there were several procedural failings on the part of the Society. These failures resulted in the mother presenting relevant and necessary evidence which should have been obtained and presented to the Court by the Society. For the following reasons, I find these procedural failings to be patently unfair and indefensible, and entitle the mother to an award of costs:

a. The Society did not obtain adequate information about the father’s incarceration and potential for release. This information was directly relevant to the assessment of the father’s partner’s plan for the child and should have been obtained by the Society and presented to the Court. Its failure to do so resulted in the mother taking the necessary steps to obtain the information and present it to the Court. b. The Society improperly delegated its decision-making responsibility regarding the placement of the child to their agent, Peel CAS. While Peel CAS was required to conduct the investigation and safety assessment relating to the allegations and charges against the father, and whether the child was immediately safe with the father’s partner who resided with the father and child at the time of the charges, the ultimate assessment of whether the plan involving the father’s partner would meet the child’s needs on a longer-term basis was the responsibility of the Society. c. The Society did not adequately assess the plan placing the child with the father’s partner. It merely relied on the safety assessment of Peel CAS. The differences between the two assessments (immediate safety vs. ongoing placement) and the Society’s shortcomings in this regard are discussed in paras. 50 to 56 of my motion decision, and I rely on those comments in this costs decision. d. The Society did not disclose to the Court the father’s partner’s child protection involvement. It is unclear whether the Society even sought consent from the father’s partner to search for involvement on the provincial database or requested that information from Peel CAS during its assessment of the father’s partner as a caregiver. This information is critical to the assessment of any individual’s plan to care for a child, and the Society’s failure to inquire into the father’s partner’s child protection history is a failure in its responsibilities toward the child. Ultimately, the mother was required to bring a motion to obtain those records, and it was the mother who brought the father’s partner’s child protection involvement to the Court’s attention. e. After the mother moved for an order that the child be placed with the child’s former kin caregivers, the Society did not bring a cross-motion seeking any relief. The Society’s factum indicated that it sought an order placing the child with the father, which was clearly impossible, given that the father was incarcerated. The Society’s position was not clearly articulated until the commencement of the motion when the Society clarified that it sought an order placing the child in the care of the father’s partner.

Quantum

[11] The mother submits that her costs for the motion, and preparation of costs submissions, are $3,600.00 plus HST for counsel fees, $2,325.00 plus HST for staff fees, and a disbursement fee of $1,140.30 plus HST for obtaining the transcripts of the father’s bail hearing, for a total of $7,065.30 plus HST.

[12] The mother argues that the quantum of the award should be sufficiently high to encourage the Society to perform its duties properly in the future but acknowledges that a costs award less than full indemnity would be appropriate, given the Society’s limited resources and that costs paid by the Society would potentially deprive other families of those resources. She therefore requests costs in the amount of $3,115.30, representing $2,000.00 in lawyer/staff fees, and full recovery of the transcript costs (less a $25.00 fee for other parties to receive a copy of the transcript).

[13] Balancing the fact that the Society was reasonable in its position in the motion against the procedural failures of the Society, I award the mother costs in the amount she seeks. This is a reasonable amount to compensate her for the work she was required to undertake as a result of the Society’s procedural failures.

Order

[14] The Children’s Aid Society of the Regional Municipality of Waterloo shall pay to the Respondent, J.P., costs of the motion argued September 12, 2022, in the amount of $3,115.30 within 30 days.

Tweedie, J. Date: May 15, 2023