Sarnia-Lambton Children’s Aid Society v. K.B., 2011 ONCJ 802

Sarnia Registry No. 269-02 DATE: 2011·X·05 CITATION: Sarnia-Lambton Children’s Aid Society v. K.B. , 2011 ONCJ 802 ONTARIO COURT OF JUSTICE BETWEEN: SARNIA-LAMBTON CHILDREN’S AID SOCIETY Applicant, — AND — Kl.B. and Kr.B. Respondents, Before Justice Wayne G. Rabley Heard on 24 August 2011 Reasons for Judgment released on 5 October 2011 Robert B. Gray .......................................................................... counsel for the applicant society Marnie C. Vickerd ........................................................................... counsel for the respondents [ 1 ] JUSTICE W.G.

RABLEY:— This is an order requiring the Sarnia-Lambton Children’s Aid Society to pay costs to the respondents Ms. Kl.B. and Mr. Kr.B. as well as the reasons for the making of such an order. [ 2 ] The Sarnia-Lambton Children’s Aid Society (“the society”.) initiated a child protection application dated October 18, 2010. It sought an order which included a finding that the children were in need of protection pursuant to ss. 37(2)(b)(

i) and (ii). It also requested placement of the children with their parents subject to a number of conditions. [ 3 ] The society’s desire to obtain an order pursuant to the Child and Family Services Act , R.S.O. 1990, c.

C-11, as amended (“the Act”), was as a result of concerns that had been first raised by anonymous and third parties and the perceived lack of co-operation that the society was getting from the parents during the course of its investigation. [ 4 ] The application by the society and this request for costs highlights the struggle between parents who do not wish the society interfering in their life without good reason for doing so and the society’s interest in fulfilling its mandate to protect children who it suspects might be vulnerable to a risk of harm. [ 5 ] Framed another way is the question: How far can the society go to force parents to cooperate when it has very little reliable evidence to make them do so? [ 6 ] The facts are quite simple.

The Lambton Children’s Aid Society received information that the B.s were duct taping the ankles of their three-year-old child at night to prevent him from climbing out of his crib. The child was somewhat unique in that he had Downs Syndrome and was described as being a very busy boy. This information had come from a parent at the nursery school that the child J. attended.

The concern raised was that the child’s ankles were taped to the side of the crib “so that he could not move” and that he had scabs on the back of his head. [ 7 ] Coincidentally on the following day, October 1 st , 2010, the society’s worker received a telephone call from an anonymous person indicating that it was “common knowledge” in the community that Mr. Kr.B. had a drinking problem. [ 8 ] There were some other minor concerns raised but these two allegations were the major areas of concern for Laurie Laprise, who at that time, was the society’s worker relative to this family. Ms.

Laprise attended unannounced at the B. residence and engaged in a three-hour interview with the parents. It was her position that the parents were being uncooperative. It was the parents’ position that Ms. Laprise was not forthright in what she reported as having been said and that she misconstrued the conversations that they had with her. [ 9 ] The B.s agreed in the initial interview that they would use other methods to deal with the issue of J. climbing out of the crib and undertook that they would not use duct tape again.

With respect to the suggestion of “a drinking problem”, the B.s denied this allegation and there was no other evidence to support this assertion by the anonymous caller. Ms. Laprise made a number of suggestions as to how the B.s might better parent and provide safety for their children. The B.s were not enthusiastic with the worker’s interference in their life but ultimately agreed to some of the suggestions.

[ 10 ] The society then brought an application for a temporary care order and sought a finding that the four children of the family were in need of protection. The grounds supporting the application relative to the other three children speak for themselves, but were in my view quite weak. [ 11 ] The society wanted to have the parents cooperate with its investigation so that it could uncover evidence to support its position.

At the return of the application, on an interim interim without prejudice basis the children were placed with the B.s with conditions. [ 12 ] Ultimately, the society continued its investigation for another ten months and then sought the permission of the court to withdraw its application. [ 13 ] In the interim, the parents had served offers to settle seeking to have the society withdraw its application, first without costs and then later with costs.

The society ultimately agreed to withdraw its application and has done so, but seeks to have the court determine if this is an exceptional situation where costs should be awarded against it and the amount of such costs. [ 14 ] The jurisdiction to award costs in a child protection matter is derived from

section 131 of the Courts of Justice Act , R.S.O. 1990, c. C-43, as amended, as the Child and Family Services Act does not make any provision for such an order. 131. Costs.—

(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. [ 15 ] The Family Law Rules , O. Reg. 114/99, as amended, deal with the issue of costs against a government agency in rules 12 and 24. They state as follows: 12.

(3) Costs payable on withdrawal.— A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties agree otherwise.

(4) Costs on withdrawal by government agency.— Despite subrule (3), if the party is a government agency, costs are in the court’s discretion. . . . 24. Successful party presumed entitled to costs.—

(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(2) No presumption in child protection case or if party is government agency.— The presumption does not apply in a child protection case or to a party that is a government agency.

(3) Court’s discretion — Costs for or against government agency.— The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful. [ 16 ] There is good reason for making an exception to the presumptive entitlement to costs in child protection cases given that the society has a statutory obligation to investigate and commence proceedings in court if there is reason to believe that a child is in need of protection.

Given their mandate, children’s aid societies should not be dissuaded from pursuing their statutory objectives because of the fear of costs ramifications. Therefore, courts must look at these cases with great care to determine if there are exceptional circumstances which would warrant costs being awarded. [ 17 ] In The Children’s Aid Society of Toronto v. S.K. (2010), 90 R.F.L. (6th) 202, [2010] O.J. No. 6031 , 2010 Cars​well​Ont 9062, Justice Marvin A. Zuker set out the appropriate responsibilities for a society.

They are as follows: • The society has an obligation to conduct a thorough investigation before acting; • The society has an obligation to consider alternative measures for protection of children before proceeding to court; • The society has an obligation to treat all clients fairly and equally and with as much dignity as possible; • The society has an obligation to continue its investigation up until the time of a final court determination in a vigorous, professional manner; • The society has an obligation to continue to reassess its position as more information becomes available; • The society has an obligation to ensure that its workers are skilled in the performance of their roles. [ 18 ] Justice Zuker then went on to make the following comments relative to the issue of costs: [95] In child protection cases, particularly when considering costs against a society, punishment should rarely, if ever, be a motivator.

But accountability certainly may. Realistically, there is no other sanction available judicially against a society that conducts itself improperly except costs.

And on the other hand, there is the consideration not so much of reward, but more of compensation for expenses incurred in the case. [96] One of the considerations important to the consideration of costs is the obligation of a society to assess and reassess its position as more information is acquired and to adjust accordingly. [ 19 ] I find these comments to be particularly applicable to the case before me. [ 20 ] Counsel for the society has invited me to review the record in its entirety and I have done so.

Unfortunately, a review of the record lends credence to the B.s’ submission that the society was very entrenched in its position and was not looking at the evidence objectively, nor was it reassessing its case as more evidence became available. [ 21 ] In her original affidavit, Ms. Laprise placed significant emphasis on the suggestion that the child J. was “restrained” in his crib at night by the duct tape. She further deposed that she was concerned about the comment made by Mr.

Kr.B., after he had demonstrated the manner of wrapping J.’s leg which included giving a significant amount of wiggle room so that J. could sit, stand up

and could roll over. In frustration to Ms. Laprise’s suggestion that the use of the duct tape was inappropriate, Ms. Laprise reported that Mr. Kr.B. “asked me if I would prefer if he used his handcuffs to restrain him.” [ 22 ] Mr. Kr.B. is a sergeant with the Ontario Provincial Police and has been a police officer for over 25 years. He has been trained as a crisis negotiator and at the time of these events was responsible for high risk/suicidal barricaded individuals in his region.

In the past he has been a member of the OPP Major Event Liaison Team and has significant training with the Criminal Investigation Bureau which involved him in the investigation of child abuse and sexual assault cases. [ 23 ] In his affidavit, Mr. Kr.B. set out his recall of the conversation relative to the duct tape and stated as follows: 15. In response to Ms. Laprise’s expression of concern about the tape hurting when coming off, I advised that we attempt to put it over J.’s pyjamas, but sometimes when he moves around at night it slides down onto his skin.

I also advised that it does not hurt him coming off as he doesn’t show any signs of pain, nor does it leave a mark. 16. Ms. Laprise appeared to be more concerned with the duct tape hurting J. as it was taken off, than the fact that we were using it. I did reply sarcastically, “Would you prefer then that I use my handcuffs instead?” The worker took this comment completely out of context as none of my issued OPP “use of force” equipment is stored at our family residence. The worker examined J.’s ankles as he sat in a high chair.

There was nothing out of the ordinary observed and no evidence of bruising or skin irritation. 17. During our meeting on this date, I repeatedly advised Ms. Laprise that the duct tape was not used to “restrain” J.. It was used to prevent him from lifting his leg over the crib rail. [ 24 ] My role at this point is not to make findings of credibility as I have only had the benefit of reviewing the affidavit material and have not heard viva voce evidence under cross-examination. However, it is my view that it is important to review the evidence to determine if there is merit to the B.s’ submission that Ms.

Laprise took what they said out of context in order to build the foundation for the society’s application. [ 25 ] From a common sense standpoint, other than anger and sarcasm, there is really no logical reason to believe that Mr. Kr.B. would utilize his handcuffs on his son at night. Anyone familiar with the use of handcuffs would no doubt quickly come to the conclusion that they would be ineffective for the purpose of “restraining” or “preventing” J. at night in this way, but that is another issue. [ 26 ] It is clear from both Ms. Laprise’s affidavit and those filed on behalf of the B.s that Mr.

Kr.B. was a caring father. It is clear that he was also an intelligent man who was concerned for the safety and wellbeing of all of his children including J.. I have no doubt that Ms. Laprise was not well received by the family and that there was some hostility to the manner in which she presented herself. However, logically it would make no sense to disbelieve Mr. Kr.B. and his wife, who was a By-law Enforcement officer, when they committed to discontinue the use of the duct tape. I find the suggestion that Mr.

Kr.B. was serious about using handcuffs to be quite misleading. [ 27 ] I review this evidence at some length because it gives context to my finding that costs should be awarded against the society. In her reply affidavit, Ms. Laprise deposed that “I am absolutely concerned about the parents’ disregard for any pain associated with removing duct tape from J.’s legs and stripping his leg hair in the process.” There was no evidence of pain or stripped hair on his legs in her first affidavit or from anything gained during further investigation.

Also at the time of swearing her second affidavit on November 1 st , 2010, there was no further evidence suggesting that the B.s were continuing to use duct tape on J.. [ 28 ] It is also interesting to note that the society had no evidence to offer that the use of the duct tape in the manner that the B.s had done was inappropriate in these particular circumstances. Further, Ms.

Laprise had confirmed with Janice Fawdry, a physiotherapist at Pathways for Children, that with respect to J., that “they used ‘kenisio tape’ a special tape designed for placing a child’s muscles in an optimal position.” There had appeared from a therapeutic perspective to be some support for this type of technique, albeit in a different context. [ 29 ] As months passed, Ms.

Laprise continued to advance the claim that “the children are in need of protection” and even though the only additional information that she had relative to the issue was a statement from one of the children that the parents had completely discontinued their use of this procedure from the time of the initial meeting with the worker, her primary and strongest ground for seeking a finding, even on March 10, 2011 was: Mr. and Mrs.

B. have admitted that they have used duct tape on a regular basis to restrain Jayden [sic] in his bed and although they now report they are utilizing alternate methods, the society has been unable to verify this. Furthermore, Mr. and Mrs. B.s’ attitude has been dismissive towards using duct tape on Jayden’s [sic] skin and the pain this may be causing him, as well as Mr. Kr.B.’s suggestion that he use his handcuffs as an alternative. [ 30 ] It is disturbing that Ms. Laprise continued to found her case on this assertion when there was no reliable evidence to support it at that time.

The balance of the grounds in the affidavit are very minor and in my view are not worth reviewing. [ 31 ] The B.s claim that the worker was using “tunnel vision” and that she was not “reassessing” the society’s position at all. Were they unhappy and less than co-operative with Ms. Laprise, I have no doubt as I have stated.

Were they entitled, given the significant intrusion in their busy life that they were facing, to have some hostility to a worker who appeared on the face of things interested only in making them succumb to her authority rather than reassess the society’s involvement given the lack of evidence that she had in her possession? I must say, I am not sure I am unsympathetic to their cause. [ 32 ] The society had very little other information from care providers suggesting that the parents were inappropriately raising their children. A letter from the B.s’ family doctor, Dr. W.A.C. MacDonald was filed indicating that:

The B. children have been my patients since 2005. At no time have I had any concerns about their welfare. [ 33 ] Mr. Kr.B.’s affidavit set out his explanation of who the family was and what discussions had initially taken place between themselves and Ms. Laprise. Ms. Laprise responded to this affidavit, but rather than acknowledging that Mr. Kr.B. was a person to whom the society might give some respect and credibility considerations, she deposed, as one of her reasons to have continuing concerns, the fact that: e. Mr.

Kr.B.’s attempts to use his position as a Police officer to excuse his actions. [ 34 ] I have reviewed Mr. Kr.B.’s affidavit a number of times. In my view, he was very fair in setting out his background and in no way was trying to “use his position as a Police officer to excuse his actions .” This regrettable statement illustrates how personally involved Ms. Laprise had become in this litigation. As I have indicated above, I have no doubt that she was confronted with two parents who were very frustrated with her intervention and suggestions on how they parent in a difficult situation.

However, she had an obligation to be fair in her representations to the court through her affidavit material and in my view she was not. [ 35 ] The worker also had an obligation to conduct a thorough investigation before acting. Given that the parents had agreed to discontinue using the duct tape, there was no urgency to proceeding with an application. Yet Ms. Laprise immediately gave notice that she intended to bring an application for an order under the Child and Family Services Act because the parents would not sign her safety plan.

It is interesting to note that the parents denied that such a written plan was ever presented to them. Ms. Laprise did not include this document to corroborate her evidence in any of her subsequent affidavits to bolster her allegations and rebut their denial. [ 36 ] In my view, absent any evidence of alcohol issues and with the acknowledgement by the parents that they would safe- proof their home and discontinue the use of the duct tape, the obligation was on the society to reassess its case. It did not. [ 37 ] Instead Ms.

Laprise filed an affidavit deposing to a conversation with Diana Doornbosch who was an Early Learning Resource Teacher employed at Pathways Health Centre for Children. The thrust of Ms. Laprise’s affidavit suggested that Ms. Doornbosch was having difficulty with the B.s and that they were not cooperating in the assessment and care of J.. Ms. Laprise further stated that: 44. Mrs.

Dormborsch expressed concern regarding the parents’ acceptance of J.’s diagnosis and development. [ 38 ] It is always difficult to determine the issue of credibility when affidavits are being exchanged and suggestions are being made that conversations are being misrepresented or misconstrued. That is especially the case in a situation like this where the parents are logical in their responding material and deserving of some credibility. Corroboration becomes important, particularly from a neutral third party. [ 39 ] In her responding affidavit Ms.

Doornbosch attached a four-page letter refuting the assertions made by Ms. Laprise relative to their conversation. Without reviewing the affidavit in detail, was disturbing to read from the Learning Resource Teacher that relative to the sworn statement of the worker “I feel that I am misrepresented in the information that I had given to Laurie Laprise.” [ 40 ] In response to the assertion that Ms. Doornbosch was of the view that the B.s were ‘not getting it’ relative to J., she wrote as follows: Paragraph 44 was particularly disturbing to me. I have been involved with this family for only three months.

Not only would I never make a judgement call like expressing concern regarding the parents’ acceptance of J.’s diagnosis and development, I certainly would never make such a bold statement of a family that I have known only three months. [ 41 ] To give some context to her overall opinion of the B. family the following comments were taken from Ms. Doornbosch’s affidavit: • “I can say with confidence that it was Ms. Laprise that expressed great concern to me that she was convinced that these parents did not accept J.’s diagnosis.” • “I feel the statements that I had made in a conversation with Ms.

Laprise were misconstrued to become slanderous against the B. family. There are many misconceptions in the presented facts in the affidavit” • “I had never had any concerns about the treatment that J. was receiving in the home by his parents.” • “I have told both the B.s and Ms. Laprise that I feel J.’s behaviour is reflective and appropriate of his developmental age.” • “In conclusion, I am disappointed that a true picture of how I see this child was not presented in the affidavit.” [ 42 ] Ms. Laprise responded to Ms.

Doornbosch’s affidavit, denied any wrongdoing and asserted that all of the information she had earlier deposed to was correct. This was done on January 7, 2011. One would have thought that the society would reassess its case as it was required to do. It did not.

Notwithstanding that an interim interim without prejudice order had been entered into early in the proceedings requiring the parents to comply with some of the society’s terms, the litigation continued on until August 24 th , 2011 when the society sought and was granted leave to withdraw its application. [ 43 ] I appreciate that costs against a society should only be awarded in exceptional circumstances. In fairness, in my reasons, I have not reviewed each and every piece of evidence that the society raised during the proceedings. To do so would require endless analysis.

The majority of the allegations not discussed were simple or inconsequential in my mind, but I did consider them in the context of their overall application. As parents, we are all able to look back and recall events that went wrong when we were raising our children. If the society intervened on each and every one of those occasions, or even on just the ones with some serious overtones to them, we would all be in court having to account for our actions. Mistakes and accidents happen when parenting. It is only when there is “a need for protection” that the society should become involved.

[ 44 ] In this case, I am of the view that this was a ‘battle of wills’ between parents who did not want to have anything to do with the society intervening in their lives and a worker who was determined that she was ‘going to have it her way’. In my view, Ms. Laprise was not objective. She allowed this to become personal because of the way she felt she had been mistreated.

As a result, she misconstrued what was said to her and took significant liberties in recounting what was told to her by others. [ 45 ] The society has a duty to oversee its workers and to reassess its case at each step of its investigation, especially in cases where there is very little evidence. It did not do so in this case and it is therefore my view that in these exceptional circumstances costs should be awarded against it. [ 46 ] I have had the opportunity of reviewing Ms. Vickerd’s bill of costs.

She is a lawyer of some considerable experience in family law and has practised for nine years. [ 47 ] I would assess the costs as follows: Counsel fee leading up to withdrawal of application $5,000.00 Counsel fee for the motion as to costs $1,500.00 Disbursements $372.32 Total ($6,872.32) with HST ($893.40) $7,765.72 5 October 2011 Justice Wayne G. Rabley