Children’s Aid Society of St. Thomas & Elgin County v. K.M., 2014 ONCJ 150

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: 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) Idem: order re adult. — 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. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. File No: 212/10 DATE: 2014-03-26 Citation: Children’s Aid Society of St. Thomas & Elgin County v. K.M., 2014 ONCJ 150 ENDORSEMENT Applicant: Children’s Aid Society of St. Thomas & Elgin Respondents: K.M.; R.G.

Date of Hearing: March 18, 2014 Decision Released: March 26, 2014 Counsel: Joyce Dittrich for the Applicant Keli Mercereau for the Father Katherine Orkin for the Mother [ 1 ] The applicant apprehended the child from the care of her father on 27 June 2013. It secured a warrant for the apprehension. [ 2 ] The father moved for the return of the child and the placement motions were argued on 15 August 2013. The child was ordered back into the care of her father subject to the supervisory terms identified in an existing (final) supervision order.

The father sought costs of the motion and submissions were deferred until the final placement issues were argued. With the resolution of the application, the parties argued the costs issue on 19 March 2014. [ 3 ] The brief background is as follows.

[4] The child was apprehended from both parents in September of 2010 as a result of the parents’ being found trafficking indrugs from a local motel. The child was present when police raided their room. [5] The child was placed with her paternal grandparents until 15 June 2011 when she was returned into the interim care of herfather subject to supervision. The child’s mother aggressively disputed the wisdom of this placement and the placement was notconfirmed by a final order until 3 January 2013 when a final supervision order was consented to.

Under that order, the child remained inthe care of the father. [6] Since the mother and father resided in separate communities and the applicant would not provide drivers for the mother, themother had to find transportation to the father’s community for access exchanges with the result that it took another four months toresolve the mother’s fixed access regime. This occurred on 29 April 2014. [7] Within a week, the mother arranged to be driven to and from access by a friend whom the father either disliked or suspectedwas involved in the local drug culture.

When he learned who would be doing the driving, he refused the first post-order exchange. [8] The mother located another driver. It was alleged the father contacted this person and made implied threats stating he wouldprefer that the mother have no access whatsoever. This driver withdrew. [9] The applicant approved the mother’s third choice of a driver after investigating her background and notified the father of itsapproval. The child was given over to the mother and the approved driver for a visit on 21 June 2013 (the first time the approved driverdrove) but, on their way back to St.

Thomas with the child, both the mother and her driver were stopped by police and arrested for drugtrafficking. [10] The applicant alleged the police had received an anonymous tip respecting both women. When the stop occurred, a “kinderegg” was found with about $440.00 worth of drugs in the rear seat where the mother and child were seated. The mother believed thefather’s new partner had “planted” the drugs and one or both of them made the anonymous call to police. [11] Police investigated the incident and dropped the charges on the first court date. They accepted the exculpatory informationprovided by the mother.

They were satisfied the calls about her drug use were false. [12] On a subsequent date when the approved driver was ready to drive the mother for access, she found all four of her tiresslashed. [13] Additional information about the mother’s arrest was received from police and others. Information was received respectingthe efforts of the father and his new partner to prevent the mother from exercising any access to her daughter.

In the result, the applicantsecured the warrant and apprehended the child. [14] In support of its motion, the applicant argued risk on four levels: physical harm due to the ongoing conflict between theparents; the father’s placement of the planted drugs in a location accessible to the child and the child’s witnessing the mother’s arrest;alienation of the child from her mother; and, recent allegations of “bedwetting” by the child. My decision focused only the allegations ofrisk.

Given that I considered the risk allegations to be either speculative or premature, I did not address submissions respecting parentalconduct. [15] I have reviewed the case briefs respecting a costs order filed by both parties and I thank them for their assistance andguidance. I reaching my decision below, I have considered the following decisions: Kenora-Patricia Child & Family Services v. N.L. etal., 2005 ONCJ 283, 143 A.C.W.S. (3d) 870, [2005] O.J. No. 4947, 2005 Cars​well​Ont 6661 (Ont. C.J.); Children’s Aid Society of theNiagara Region v. C.B. and K.B., , 20 R.F.L. (6th) 50, [2005] O.J.

No. 3878, [2005] O.T.C. 811, 2005 Cars​well​Ont4414 (Ont. Fam. Ct.); Dorian B. v. Children’s Aid Society of Durham Region, (1987), 20 C.P.C. (2d) 61, [1987] O.J. No. 1847, 1987Cars​well​Ont 459 (Ont. Prov. Ct., Fam. Div.); and, Children’s Aid Society of Waterloo Region v. Zeledy B. and Jorge B., , 67 A.C.W.S. (3d) 522, [1997] W.D.F.L. 315, 10 O.F.L.R. 124, [1996] O.J. No. 4245, 1996 Cars​well​Ont 4670 (Ont. Prov.

Div.). [16] In context of the many and varied “principles” that guide the adjudication of costs against a society, I am careful whichprinciples should be taken literally since all of the cases tendered followed a trial. Particularly, the principle of “thoroughness”expounded by Justice Katarynych in Children’s Aid Society of Waterloo Region v. Zeledy B. and Jorge B., supra, referred to in paragraph[39] in Children’s Aid Society of Algoma v. Robert M. et al, , 18 R.F.L. (5th) 36, [2001] O.J. No. 2441, 2001 Cars​-well​Ont 2204 (Ont.

C.J.), appear to me to be appropriate considerations over the lifespan of a file but demand some tweaking whenconsidering an investigation up to the point a child is apprehended. [17] In circumstances where the apprehension itself is the main focus of the motion, assuring a costs award does not dissuade asociety from pursuing its statutory mandate takes on greater weight than post-trial principles: Children’s Aid Society of Ottawa v. S. andP. (2003), (ON SCDC), 170 O.A.C. 344, 39 R.F.L. (5th) 209, [2003] O.J. No. 945, 2003 Cars​well​Ont 898 (Ont.

Div.Ct.). [18] However, for the purposes of this argument, I accept the finding of Justice Bishop in Kenora-Patricia Child & FamilyServices v. N.L. et al., that succinctly laid out the baseline principle where he stated at paragraph [5] “to order costs against an agency, itneed not to have acted in bad faith. The central consideration is fairness and would an ordinary person perceive the actions of thechildren’s aid society as having acted unfairly”.

I also accept that maliciousness or male fides or honest belief is not the test by whichthe costs adjudication is to be governed. [19] On the facts as a whole, I find an ordinary person would not perceive the children’s aid society to have acted unfairly. [20] It is to be recalled that, in my interim decision, I did not address conduct since the motion could be disposed on the narrowissue of risk. However, for the purposes of a costs motion, parental conduct is extremely relevant considering subrule 24(8) — “bad

faith” — and clause 24(11)(b) — “reasonableness or unreasonableness of each party’s behaviour in the case”. [21] On 29 April 2014, the father consented to the access regime to be enjoyed by the mother. When he consented, he knew shedid not drive, he knew of her history in regard to associations in the drug culture and yet he did not seek a single limitation respectingwho would drive the child to and from visits.

Within weeks of his consent, I am prepared to find credible and trustworthy evidence wasadduced that he unilaterally placed restrictions on who might drive the child thereby denying the mother her agreed access or he“dissuaded” those who might drive the child using veiled threats.

When the applicant approved the mother’s third choice, the fatherknew he could no longer demand a driver he alone might approve and additional steps were needed to secure what I find to be his intentto renege on his consent and deny the mother any access to the child. [22] While there were some issues in the applicant’s motion materials who its workers actually got information from, had I beenrequired to address conduct, I would have found the evidence both credible and trustworthy that the father and his partner conspired tosecure the mother and her driver’s arrest for drug possession and/or trafficking.

The father and his partner were the only persons with themotive to secure the mother’s arrest and his partner had exclusive means to plant the drugs when she placed the child into the car seat. To make any other finding on the facts as presented would beggar rationality. [23] In Piskor v. Piskor and McGrath, , 129 A.C.W.S. (3d) 123, [2004] O.J. No. 796, 2004 Cars​well​Ont 846,2004 Cars​well​Ont 5313 (Ont. Fam. Ct.), Justice Jennifer A.

Blishen of the Superior Court determined “bad faith can be established bythe intentional failure to fulfill an agreement in order to achieve an ulterior motive or an intentional breach of a court order with a view toachieving another purpose”. This definition fits the father’s conduct on all fours. Even though the court did not agree with theapplicant’s assessment of risk, I am of the view a reasonable person would find the steps the applicant took to be rational in thecircumstances of bad faith caused by the father’s intentional conduct. [24] In essence, the father made this litigation necessary.

The applicant might have chosen an alternate to apprehension — acontempt motion or an early review of the consent access order — but the fact it did not should not expose it to a costs claim. Thefather’s efforts to get what he wanted were so extreme that a reasonable person would forgive the “on the spot” choice made toapprehend.

His efforts were utterly unreasonable and self-serving and, even though he was successful on the motion, a costs award in theface of his conduct would be seen by any person as both unfair and punitive. [25] In the result, I dismiss the father’s costs claim. [26] The applicant requested costs on 19 March 2014. I agree with counsel for the father that its claim should not be consideredwithout a costs demand being articulated in the application: Belanger v. Belanger and Capin, , 141 A.C.W.S. (3d)913, [2005] O.J. No. 3659, 2005 Cars​well​Ont 3991 (Ont. Fam. Ct.) __________________________________ Justice M.P. O’Dea