Children’s aid Society of Halton Region v. A.R., 2011 ONCJ 681

WARNING The court hearing this matter directs that the following notice should 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. Milton Registry No. 537/10 DATE: 2011·08·11 Amended: 2011.08.30 CITATION: Children’s aid Society of Halton Region v. A.R. , 2011 ONCJ 681 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY, REGION OF HALTON Applicant, — AND — A. R. (MOTHER), R.V. (FATHER OF J.V.), K.B. (FATHER OF M.R.) Respondents Before Justice Sheilagh M. O’Connell Heard on July 21, 2011

Reasons for Ruling on Costs Motion released on August 11, 2011 Diane Skrow ............................................................................................... for the applicant society A.R. (respondent mother) on her own behalf No appearance by or on behalf of respondent fathers O’CONNELL J.: Introduction: [ 1 ] The respondent mother seeks an order for costs against the Children’s Aid Society. The mother is only seeking her costs of defending the protection application regarding her child M.R., born February [… ] , 2005. The Society withdrew its protection application against M.R. on May 12, 2011.

The protection application involving J.R., born November [… ] , 1994, is ongoing. [ 2 ] The respondent fathers and the Office of the Children’s Lawyer take no position on the mother’s motion and did not participate in the hearing held on July 21, 2011. The Respondent Mother’s Position: [ 3 ] The Respondent mother submits that the society failed in its duty to conduct a thorough investigation prior to commencing its protection application regarding M.R.

She submits that M.R. should not have been included in the protection application regarding her older child, J.V., who was turning sixteen years old shortly after the society had started their investigation. [ 4 ] The mother submits that the society’s actions in including M.R. in the protection application involving J.V. were unfair and unreasonable, given that there were no protection concerns regarding M.R., the society had not conducted a proper investigation prior to commencing its protection application, and the society ultimately withdrew its application concerning M.R. six months later.

She further submits that the original child protection worker assigned to her case acted unfairly and improperly by contacting the respondent fathers and school officials to advise them that the society had mental health concerns about the mother, thereby maligning the mother to the children’s fathers and to the children’s school.

The mother submits that this conduct amounted to bad faith on the part of the society. [ 5 ] Although the mother was self-represented throughout these proceedings, she is claiming her personal costs beyond lawyer’s fees, including claims for lost wages, travel, and disbursements, totalling $6,585.60, as set out in her Bill of Costs The Society’s Position: [ 6 ] The society submits that it acted reasonably and fairly throughout its child protection investigation and that it had no alternative but to commence a protection application regarding M.R. because the mother refused to cooperate in its initial investigation.

The society submits that absent a court order, it was unable to conduct a thorough investigation regarding M.R. Given the serious child protection concerns raised regarding the older child, J.V., the younger child M.R. had to be included in the original protection application. The society further submits that it fulfilled its obligation to assess and reassess its position as more information became available and ultimately withdrew its protection application regarding M.R. for this reason. Background: [ 7 ] The society has two previous file openings with the mother prior to this investigation:

a) On April 8, 2009, the society received a report from a public library regarding the mother’s disruptive and inappropriate behavior at the library, including neglect and lack of supervision of M.R., and conflict with library staff in M.R.’s presence. The library had issued a letter of trespass to the mother as a result of three separate incidents, one of which also involved removing library property without consent. The society attempted to contact the mother at the telephone number and address provided by the library and at M.R.’s school, but their attempts were unsuccessful. The society eventually closed their file in June of 2009.

b) On October 13, 2009, the society received a report from J.V.’s school. Another student at the school reported that the mother was physically and emotionally abusive to J.V. during a weekend visit at J.V.’s home. The student ended the visit early and asked his father to pick him up. The society interviewed the student after he reported his concerns to his father and the school. The student made some very concerning disclosures regarding the mother’s treatment of J.V. during that weekend.

J.V. was then interviewed by the society, however, he did not disclose any abuse or neglect by the mother and presented as very guarded. The mother was also interviewed in a public place as she did not allow the society to come to her home. The mother denied all of the allegations. At the time, the mother advised the society worker that both she and her husband were lawyers and they were not prepared to “indulge” this matter

any further. She refused to provide the society worker with J.V.’s date of birth or her husband’s last name without a court order. Once again, the society closed its file shortly thereafter. [ 8 ] During the course of its involvement in 2009, the society determined that the Children’s Aid Society of Ottawa also had a history with the family as follows:

a) On September 19, 1998, a report was received regarding possible sexual abuse of J.V. (then age 3) by the mother’s partner. J.V. made the disclosures to his grandmother and aunt. The society found the disclosures to be credible. No clear disclosures were made to the police so no criminal charges were laid. The mother was described as “resistant and uncooperative” by the Ottawa children’s aid society. The file was eventually closed.

b) On February 18, 2005, a report was received from a local hospital regarding the hospital’s concerns about the mother’s mental health following M.R.’s birth. The mother was contacted by the Ottawa CAS but refused to discuss the issues and stated that she would be filing a complaint against the staff member because she was being harassed. The file was closed at intake.

c) On March 16, 2006, the mother contacted the Ottawa CAS and reported that the person identified as the perpetrator in the society’s first involvement with the family may still be abusing children. The mother was advised to contact the Peterborough Children’s Aid Society with this information as the man was now residing in Peterborough. She was provided with the contact information for the Peterborough CAS.

d) In July of 2007, the Ottawa CAS received a report that stated that the mother had assaulted her mother, the children’s grandmother, and that she was also verbally and emotionally abusive to J.V. and used physical discipline on him. The Ottawa child protection worker attended at the home unannounced but the mother refused to meet with her without a scheduled appointment. An appointment was scheduled for July 20, 2007, and the worker met with the mother and J.V. at that time. The mother refused to let the worker interview J.V. privately.

The mother advised J.V. not to tell the worker where he went to school and would not disclose the grandmother’s whereabouts to the worker, other than that she had moved out. She would not provide details where she worked other than part-time at a law firm. J.V. denied any abuse by his mother. The mother believed that the next door neighbour was the person who had made the CAS report and advised the worker that there was an ongoing argument between them to the point where the mother had to seek a peace bond and will be moving in order to resolve the issue. The society closed its file at intake.

The Current Investigation : [ 9 ] The society commenced the investigation leading to these proceedings on September 9, 2010. On that day, the society received a police report from Halton Regional Police that J.V. and his mother appeared to have an argument on the street. The police attended and met with J.V., the mother and J.V.’s uncle.

J.V. advised the police that he wanted to live with his uncle and that the argument between he and his mother was with respect to his mother attempting to have J.V. live with her. [ 10 ] On September 14, 2010, Ms Cynthia Thompson, the society’s original child protection worker assigned to the investigation, met with J.V. privately at the home of his maternal aunt and uncle. She had attempted to meet J.V. at his school that day, however J.V. was not in school because the mother had apparently threatened to come to the school to get J.V. [ 11 ] During the meeting on September 14, 2011, J.

V. disclosed the following to Ms Thompson:

a) J.V. did not want to live with his mother as she was “abusive, we don’t have a home, she has a mental condition, she is impulsive and erratic, she lives a lifestyle she can’t sustain, she has been to jail for fraud, she has aliases, she signs rent under different names, and police have come to our home”;

b) The mother physically and verbally abused him;

c) In June or July 2010, the mother hit him, kicked him in the stomach, and broke a hangar on his back;

d) The mother had assaulted his grandmother on more than one occasion;

e) Since he was five years old, the mother has hit him with her hand or a belt;

f) He has lied to the CAS in Ottawa on three previous occasions in the past when they became involved because the mother always threatened that the CAS would put him in a foster home;

g) Last year when he met with Ms Thompson (as a result of the October 2009 investigation referred to earlier but which was subsequently closed at intake), he lied to her when he said that his mother did not hit him;

h) He felt safe with his maternal aunt and uncle and did not want to return to his mother’s home;

i) When asked if he would have any concerns if the mother cared for M.R., he said that although the mother did not hit M.R., he did not feel it would be a good situation for M.R. to live with the mother because the mother did not have a stable home, she lied a lot, had a job under a “fake” name, frequently used different names, and he did not want M.R. to go through what he had.

[ 12 ] The next day, Ms Thompson went to J.V.’s school after the society received a call from the school that the mother was there and J.V. did not want to see her. Ms Thompson met with the mother at the school. They spoke privately in the principal’s office. During that meeting, the mother would not provide Ms Thompson with her address, other than to say that she lived in Oakville. The mother advised Ms Thompson that she had been travelling back and forth between Ottawa and Oakville for work purposes.

The mother advised Ms Thompson that when she was in Ottawa, she stayed with her mother, however, she would not provide the Ottawa address and phone number to Ms Thompson. [ 13 ] The mother denied verbally and physically abusing J.V. She agreed that J.V could stay with his aunt and uncle until October 7, 2010, at which time, the mother would be living in Oakville. The mother further explained that she had attended at J.V.’s school on that day to give him some money. [ 14 ] During the same meeting, the mother refused to give any information to Ms Thompson about M.R. or her whereabouts.

She would not discuss M.R. with Ms Thomson because she took the position that the police report leading to the child protection investigation made no mention of M.R. and the child was not involved in the conflict between J.R. and her.

This position is confirmed by the mother’s affidavit materials and her oral submissions during the costs hearing. [ 15 ] The mother also refused to sign a consent for a criminal records check, would not disclose any information about being arrested (as relayed by J.V.), and would not sign a consent for Ms Thompson to speak to her doctor or hospitals where the mother had apparently been treated for a brain tumour. [ 16 ] Ms Thompson did learn from other family members that M.R. was being cared for by her maternal grandmother in Ottawa.

M.R. had apparently been living with her maternal grandmother since March of 2010. On September 15, 2010, Ms Thompson contacted the Ottawa CAS and requested that an intake screener attend at the grandmother’s home in Ottawa and check on M.R.’s safety and wellbeing. [ 17 ] On September 16, 2010, Ottawa CAS contacted Ms Thompson and advised that M.R. was registered at St. Emily’s school and that she had attended at the grandmother’s home later that day to meet the child and grandmother. M.R. was very active, playing with her toys and unable to focus on an interview.

However, the grandmother provided the following information to the Ottawa CAS worker:

a) M.R. had been in her care since March of 2010;

b) The mother came on the weekends or during the week to see M.R.;

c) The mother agreed to let M.R. stay with her and to register M.R. in school in Ottawa;

d) J.V. did not want to live with his mother because, according to the grandmother, the mother controlled everything he did;

e) The grandmother’s biggest concern was the mother’s mental health. She had taken the mother to a psychiatrist when the mother was thirteen or fourteen years old due to mental health issues, but there was no diagnosis;

f) The grandmother had tried to get her some help, but the mother was unwilling;

g) The mother has hit her with her Blackberry, but she is not sure if the mother intended to do this. J.R. witnessed this, but M.R. was asleep;

h) The mother had brain surgery when J.V. was approximately four or five years old. The surgery impacted the decision making area of the brain, according to the grandmother;

i) The grandmother has never seen the mother physically assault J.V.;

j) The mother can be very caring and loves the children; [ 18 ] On September 21, 2010, the grandmother contacted Ms. Thompson directly and reported the following:

a) She was concerned for J.V. as the mother had no home and no job and J.V. was bullied a lot;

b) M.R. witnessed her mother spanking J.V.;

c) The mother did throw a Blackberry at her and as a result, the grandmother had a bruise on her eye and forehead for a few weeks after;

d) The mother would not physically harm M.R. but she worried about the mother’s instability;

e) J.V. has also resided with his aunt and uncle in Milton when he was younger and he has also resided with his other aunt in Ottawa and her husband, as he preferred to stay there then be with his mother;

f) The grandmother has made a legal application for custody but has not followed through;

g) The mother uses different names and aliases and had been criminally charged for using a false name for non-payment of traffic fines.

[ 19 ] On September 29, 2010, a family meeting took place at the society’s office to discuss planning for J.V. J.V., the mother, her boyfriend/partner, the aunt and uncle, Ms. Thompson and her supervisor were present at the meeting. During this meeting J.V. became very upset and started to cry. He needed a break and was moved to the supervisor’s office. During his private meeting in the supervisor’s office, J.V. disclosed the following:

a) His mother has beat him since he was six years old;

b) In the summer, while staying with the mother and her boyfriend, the mother beat him with a hanger until it broke. He never told anyone about the abuse and lied to the society last year;

c) The mother did not beat M.R. but M.R. has witnessed the abuse and laughed when the mother beat him;

d) The mother beat his grandmother in the past and his grandmother had a black eye as a result of being hit with a cell phone;

e) He stated that he would kill his mother if she ever beat his grandmother again and he would kill himself if he ever had to live with his mother again. He never wanted to see the mother again or speak to her;

f) He was happy living with his aunt and uncle as there was no abuse in that home. [ 20 ] As a result of J.V.’s statements, later that day, he was taken to the Milton District Hospital emergency department. He was discharged that day as he was deemed to be not a risk to himself or others, and that he had made the statements in response to a stressful situation. [ 21 ] On October 7, 2010, Ms Thompson met with the mother at her new apartment in Oakville, Ontario. Although the apartment was not yet furnished, the mother advised that she and M.R. would share one room and J.V. could have his own.

During that meeting, the mother agreed to sign a consent for a mental health assessment although she advised Ms Thompson to put the address of her boyfriend on the consent rather than her address. [ 22 ] On October 12, 2010, the mother advised Ms Thompson that she had retained a lawyer who advised her not to participate in the mental health/psychological assessment.

The mother advised that the society would have to obtain a court order for this and requested that Ms Thompson return the signed consent, which she did. [ 23 ] On October 13, 2010, Ms Thomson again met with the respondent mother in her apartment in Oakville. The apartment now had furniture, beds and boxes. The respondent mother confirmed her previous statements to Ms Thompson that M.R. was coming to live with her. She advised that her mother and M.R. were coming later that week.

Her mother would stay for the weekend and the return to Ottawa. [ 24 ] During that meeting, the mother refused to provide the name of M.R.’s school in Oakville, or any other information about M.R. The mother again reiterated that M.R. was not part of the original investigation and therefore, the mother did not need to provide any information about M.R. [ 25 ] On October 13, 2010, the maternal grandmother advised Ms Thompson that she was unaware of any plan to return M.R. to the mother’s home in Oakville and leave her there.

The maternal grandmother further advised Ms Thompson that while she did not have concerns for M.R.’s physical safety in the mother’s care, she did have concerns about stability and M.R.’s supervision. [ 26 ] On October 20, 2010, Ms Thompson again met with the respondent mother in her apartment. During that meeting, the mother again refused to tell Ms Thompson where M.R. was going to school.

She advised Ms Thompson to “get a Court Order.” The respondent mother does not dispute that she told Ms Thompson to do this. [ 27 ] During the same meeting, Ms Thompson observed that M.R appeared healthy, clean and dressed in clean clothing. The mother allowed Ms Thompson to interview privately in the kitchen. Initially, M.R. did not want to speak to Ms Thompson, but the mother suggested that she read M.R a book and M.R. talked to Ms Thompson while she read her a story. During this meeting, M.R. stated the following to Ms Thompson:

a) She was not afraid of her mother, grandmother, or J.V.:

b) The mother yells and spanks J.V. with her hand when J.V. gets into trouble, but she could not remember when this last occurred;

c) Sometimes the mother spanks her with her hand, but she could not remember when this last occurred. [ 28 ] The society commenced its protection application regarding J.V. on November 18, 2010. The society verified reported concerns with respect to the mother’s use of physical force and maltreatment of J.V. causing a risk that J.V. is likely to be harmed. The society had to commence its protection application regarding J.V. before he turned sixteen years old, or it would have lost the jurisdiction to protect him, pursuant to section 47(3) of the Child and Family Services Act R.S.O. 1990, c. C.11 , as amended.

In its protection application regarding J.V., the society sought an order placing J.V. in the care and custody of his maternal aunt and uncle, subject to the supervision of the society for a period of seven months. [ 29 ] The society believed that M.R. was at risk of harm in her mother’s care and included her in the protection application. Although J.V. and the maternal grandmother reported that M.R. was not hit by her mother, M.R. directly told Ms Thompson that sometimes her mother spanks her.

Further, both the grandmother and J.V. reported serious concerns about the mother’s stability and mental health and J.V. reported that M.R. had witnessed the mother’s abuse of him and had laughed when the mother beat him. The

society had significant concerns about the mother’s ability to provide stable, consistent and nurturing care for M.R. [ 30 ] In the protection application filed, the society stated that it attempted to work voluntarily with the mother but was unable to investigate the concerns regarding M.R. because the mother refused work cooperatively with the society. In its protection application regarding M.R., the society therefore sought an order placing M.R. in the care of her mother, subject to the supervision of the society, including the following conditions of supervision:

a) The mother will meet with the Society worker on a regular basis and permit announced and unannounced visits to the family home. The mother will permit privacy visits between the society worker and M.R. on a regular basis;

b) The mother will provide the society with the name of M.R.’s school and will sign a consent to allow the society to contact M.R.’s school;

c) The mother will notify the society of any changes to her address and/or telephone number prior to the change taking place;

d) The mother will attend for a mental health assessment and will follow through with any recommendations for treatment and shall sign a consent in order for the Society to be provided with a copy of the assessment report. [ 31 ] Ms Thompson advised the mother on November 18, 2010 that the society had commenced a court application and that the first court date was November 25, 2010. She requested a meeting with the mother to serve her with the court materials.

The mother refused to meet with Ms Thompson and advised her that this was not enough time and that she would be seeking an adjournment so that she could make a counter-claim against the society. [ 32 ] The society attempted to personally serve the mother with the protection application and the supporting court documents before the first return date. On November 19, 2010, a process sever attended at the mother’s home located in Oakville, where Ms Thomson had met the mother on three previous occasions.

Upon arrival, the landlord permitted entry into the building when the process server was unable to receive an answer through the buzzer system. The process server knocked on the mother’s apartment door several times, however no one answered. The process server heard an adult female and adult male and a younger girl talking in the apartment. The landlord believed that this was the mother’s apartment although he was unable to confirm 100 percent. The process server returned the next day and again knocked on the respondent’s door several times.

The process server could hear an adult female and adult male in the apartment and a young girl’s voice asking “why aren’t we answering the door?” The process server then returned to the lobby and buzzed the number for the mother’s apartment. A woman answered and denied being the respondent or knowing her. [ 33 ] In her Affidavit sworn May 9, 2011, the mother deposes that the affidavit filed by the process server and the society’s representations to the court regarding service are false, as “P.

R. [the maternal grandmother] informed Cynthia Thompson on November 15, 2010 and again on November 18, 2010 that [the mother] was in Ottawa visiting M.R.” [ 34 ] In the Affidavit of P.R. [the maternal grandmother], sworn April 24, 2011, the grandmother deposes that on November 15, 2010, she told Cynthia Thompson that the mother was in Ottawa “picking up M.R.” and that “everything was fine,” although she “understandably felt anxious about M.R. leaving.” She further deposed that Cynthia Thompson called her on November 19 th in the late afternoon (not the 18 th , as the mother deposed) and she told Ms Thompson that the mother was still in Ottawa with M.R.

However, the grandmother also advised Ms Thompson on November 19 th that the mother had registered M.R. at a private school in the Oakville (Halton region). [1] [ 35 ] During a subsequent telephone conversation on November 24 th , 2010 with Ms Thompson, the grandmother recanted her previous statements to the society regarding the mother. When advised that the society had commenced a protection application and wanted to serve the mother, the grandmother questioned whether a CAS application was really necessary.

In her Affidavit sworn April 24, 2011, in support of the mother’s motion for costs, the grandmother deposed, “I have never supported a CAS application and do not support it now.” [ 36 ] The first appearance in the child protection application was November 25, 2010.

The mother did not attend the first appearance and she had not been served with the protection application before the first appearance. [ 37 ] At the first appearance, Justice Theo Wolder, the presiding justice, was well aware that the mother had not been served, but based on his review of the material, he was sufficiently concerned to make an order on a temporary, without prejudice basis placing J.V. in the care of his maternal aunt and uncle and a temporary without prejudice order placing M.R. in the mother’s care, subject to the following two terms and conditions of supervision:

a) the mother will meet with the Society worker on a regular basis and permit announced and unannounced visits to the family home. The mother will permit privacy visits between the Society worker and M.R. on a regular basis; and

b) the mother will provide the Society with the name of M.R.’s school and will sign a consent to allow the Society to contact M.R.’s school. [ 38 ] Justice Wolder also made an order appointing counsel for the children pursuant to

section 38 of the Child and Family Services Act R.S.O. 1990, C. c.11 , as amended, and made an order for substituted service of the protection application and supporting documents on the Respondent mother by ordering that the court documents be placed under the door of the Respondent mother’s apartment in, Oakville, Ontario, or by taping a copy to the door if it cannot be placed under the door and concurrently mailing a copy of these documents to the Respondent at the same address.

Justice Wolder then adjourned the protection application to December 9, 2010 at 11:30 a.m. for proof of service upon the Respondent mother and Respondent fathers or steps taken to effect service upon them, to hear from counsel for the children, and for further directions. [ 39 ] On November 30, 2010, the society served the mother with the protection application by taping a sealed envelope with

the society’s court documents to her apartment door pursuant to the Order for substituted service made by Justice Wolder, and by mailing a copy of the documents to the same address. Service was effective on December 5, 2010, pursuant to the Family Law Rules , O. Reg. 114/99 , as amended. [ 40 ] On December 6, 2010, Ms Thompson called the mother to arrange to see the child M.R., however, the mother hung up on her after she identified herself. Later that day, Ms Thompson attended the mother’s apartment with another protection worker.

The mother was still listed on the tenant list in the lobby of the apartment building. Ms Thompson was unable to meet the mother and observed that the sealed envelope of the society’s court documents was still taped to the apartment door. [ 41 ] On December 8, 2010, the day before the next court appearance, the mother faxed a letter to the society stating that she does not reside in the Halton Region and that she has not attended at the apartment in Oakville (Halton) since November 12, 2010, and that she would not be returning there.

On the same day, Ms Thompson attended at M.R.’s school in Oakville to see M.R. as the mother refused to meet with her and would hang up on her when she called. Ms Thompson was able to locate the school where M.R. was registered based on the information that she received from the grandmother on November 19 th that the mother was returning with M.R. to the Halton region and had registered her at a private school in Oakville.

Ms Thompson met with M.R. at the school on December 8 th , 2010 and M.R. told her that she and her mother live in the apartment on Oakville, although they sometimes went to a hotel. [ 42 ] At the next return date of December 9, 2010, the mother was not present in Court. The society was able to effect service on both respondent fathers and the Office of the Children’s Lawyer had now been appointed to represent the children.

The protection application was adjourned to February 3, 2011 to allow the respondent fathers an opportunity to respond to the protection application and the Office of the Children’s Lawyer an opportunity to complete their interviews with the children, parties and collaterals. [ 43 ] On December 16, 2010, the mother brought a motion seeking the following relief:

a) An order that the Court Order of November 25, 2010 be set aside for non-service;

b) An order that J.V. may live where he wants, attend school where he wants and have unsupervised visits with his family;

c) An order that there should be no supervision required by the CAS, that a new child protection worker be assigned and that Cynthia Thompson be removed from the file;

d) An order that the court file be sealed and only the parties to the file will have access to the court file;

e) An order that the documents from the court file and CAS cannot be circulated and served on third parties;

f) An order that J.V. and his mother attend joint counselling on Mondays. His mother can pick him up and drive him to school. [ 44 ] The motion was heard on December 23, 2010. At that hearing before the Honourable Justice Roselyn Zisman, the mother maintained that she had not received a copy of the society’s court documents and that she was never served with any court materials, notwithstanding her motion and her very detailed affidavit in support of her motion responding to some of the concerns raised in the protection application.

The mother advised Justice Zisman that her correct address in Oakville, Ontario was not the address indicated by the society in its Affidavit of Service. [ 45 ] Justice Zisman made no finding regarding whether or not the mother was served previously, however, the mother was served in court that day with all of the court documents by the society. Justice Zisman extended the mother’s time to serve and file her responding materials to February 4, 2011. She declined to hear the mother’s motion that day as the mother had not served any of the parties, including the Children’s Lawyer, with her motion materials.

The mother’s motion was adjourned to February 24, 2011, which was the new date set for the temporary care and custody hearing regarding J.V. [ 46 ] After the hearing on December 23, 2010, the society attempted to locate the address provided by the mother. The society was unable to locate that address or find a postal code for that address. On the same day, the mother filed a formal complaint to the society against Ms Thompson and requested that she be removed from her case.

The mother spoke to the Society’s Director of Service and advised that she would permit another society worker to attend at her home and see M.R., but not Ms Thompson. [ 47 ] On December 29, 2010, Ms Yolanda Ziotek, a new child protection worker, arranged to meet with the mother and M.R. at her home the following day. The mother provided Ms Ziotek with the address she provided Justice Zisman at Court. On December 30, 2010, Ms Ziotek attempted to locate the address but could not locate any such address. She eventually attended at the mother’s original address and called the mother on her cell phone from the lobby.

The mother came down to the lobby and let Ms Ziotek into the apartment building. When Ms Ziotek asked the mother why she had told her to come to a different when they were meeting at her original address, the mother advised that “they are the same address”. It was apparent to Ms Ziotek during that meeting that the mother in fact was still residing at the same apartment in Oakville, despite the mother advising the court and the society that she did not reside at this address. [ 48 ] Ms Ziotek met with M.R. privately during that visit.

During that meeting, M.R. was very active, jumping on her mother, speaking loudly, pulling a floor lamp down, and not responding to her mother’s attempts to redirect without several prompts. [ 49 ] On December 24, 2010, the mother brought a further motion that was scheduled to be heard on January 6, 2011.

In that motion, the mother was seeking, along with other relief, an order “that Pam McEachern [counsel for the respondent father, R.V.] not be a party or counsel to a party on this file” and that Ms McEachern “not be permitted to circulate or give a copy of any documents in this file to third parties,” and for an order that “custody of M.R. remain with the mother, with supervision from another child protection worker, not Cynthia Thompson.” She further advised in her supporting affidavit that she would now consent to a supervision order for M.R. provided that another child protection worker is assigned and that Ms Thompson is removed and “not allowed any contact or communication with any party” regarding her case.

[ 50 ] This motion was scheduled to be heard on January 6, 2011, however, it came to the Court’s attention that on June 10, 2009, His Honour Justice Kershman of the Ontario Superior Court of Justice found the mother to be “a vexatious litigant" in other family proceedings and that “she not be permitted to commence or continue any proceedings in any court directly or indirectly relating to the child, M.R. without having obtained leave from the Ontario Superior Court of Ottawa, pursuant to section 140(1) (

c) and 140(1) (

d) of the Courts of Justice Act .” The Court went on to define commencement of proceedings to include “applications, actions, motions, and/or case conferences in any court (including the Superior Court of Justice in Milton) directly or indirectly related to the child M.R.” without first obtaining leave from a judge of the Superior Court of Justice in Ottawa. [ 51 ] Although the Order of Justice Kershman did not prohibit the mother from responding to the society’s child protection proceedings, on its face, the Order prohibited the mother from commencing her own motion in any proceedings directly or indirectly relating to M.R., including, arguably, proceedings in the Ontario Court of Justice unless leave was obtained first from the Superior Court in Ottawa.

The mother’s motion was adjourned on consent of the parties to February 24, 2011, so that the mother could take the appropriate steps to address Justice Kershman’s Order. [ 52 ] On February 1, 2011, Ms Ziotek, the new child protection worker assigned, again attended the mother’s home to meet with the mother and the child M.R. At that time, the mother had still not provided the society with a signed consent permitting it to contact M.R.’s school, pursuant to Justice Wolder’s Order of November 25, 2010.

According to Ms Ziotek’s sworn Affidavit, when requested, the mother questioned the purpose of the society contacting M.R.’s school. Ms Ziotek advised the mother that it was to confirm M.R.’s continued enrolment and attendance at the school. The mother questioned why these were concerns for the society.

The mother eventually agreed to sign a consent form permitting the society to speak with the principal of the child’s school, however, the mother requested that the consent only be used for the purposes of confirming enrolment and attendance and made several changes to the consent prior to signing the form. [ 53 ] On February 3, 2011, Ms Ziotek spoke to the principal of M.R.’s school who confirmed that M.R. continued to be enrolled in the school, that she had been attending school on a regular and consistent basis, and that there were no concerns at that time. [ 54 ] On February 24, 2011, the temporary care and custody hearing regarding J.V. was scheduled to proceed at 11:00 a.m.

The mother did not arrive at the court house until between 1:30 p.m. and 2:00 p.m. on that day. After hearing submissions of the parties, the Court’s decision was reserved and the proceedings were adjourned to May 12, 2011. [ 55 ] On March 17, 2011, the mother brought another motion before the court regarding J.V. Justice Zisman found that the motion should have been brought before me, the case management judge, and would not hear the motion.

Justice Zisman further ordered that the mother shall not be permitted to bring any other motions prior to May 12, 2011 at 2:00 p.m. and the mother’s motion was adjourned to that date. [ 56 ] Between March 17, 2011 and May 12, 2011, the society dealt with the mother on a regular basis, according to the Affidavit of Theresa Zonnefeld, sworn May 30, 2011. [ 57 ] On May 3, 2011, the Office of the Children’s Lawyer completed its investigation associated with its legal representation of M.R. Mr.

Roy Reid, the clinical social work agent for the Office of the Children’s Lawyer appointed to assist counsel, swore an Affidavit summarizing the involvement of the Children’s Lawyer in the child protection proceedings. Mr. Reid and counsel reviewed the pleadings and the child protection file, met with the mother on two occasions, met with the mother’s boyfriend on one occasion, met with the principal of M.R.’s school, and met with M.R. privately on three occasions. They also had a telephone conference with M.R.’s biological father. [ 58 ] Mr.

Reid did not meet or interview J.V., the maternal grandmother, nor did he speak to M.R.’s paediatrician or family doctor. Mr. Reid was not able to receive any police records or police information regarding the mother as the mother declined to sign a release for the Children’s Lawyer. [ 59 ] Based on their involvement, the clinical social work agent for the Children’s Lawyer concluded the following, as set out in his Affidavit sworn May 3, 2011: “The Children’s Aid Society raised concerns about [the mother’s] mental health issues and her instability.

With respect to residences, the only direct information that I received is from [the mother’s boyfriend] which indicates that the mother has not changed residences significantly in the past two years. The information also indicates that she made efforts to provide M.R. with some stability, by having her reside with the grandmother, while the mother was in the process of changing residences. With respect to the allegation that [the mother] suffers from a mental health issue, the medical records I reviewed from the files of the Halton Children’s Aid do not provide a mental health diagnosis.

My own experience with [the mother] and my observation of [the mother] does not provide indicators of a mental health concern. [The mother] has been cooperative and appropriate in all my dealings with her.

It would be helpful if [ sic ] the outstanding information of [the mother’s] police records and having the opportunity to speak to the maternal grandmother, as this may assist further in addressing the concerns raised in these proceedings.” [ 60 ] On May 4, 2011, after receiving the positive report from the Office of the Children’s Lawyer and based on Ms Ziotek’s involvement with the mother and M.R. since January 2011, the society withdrew its protection application regarding M.R.

The Notice of Withdrawal was dated May 4, 2011 and served on all parties on May 4, 2011and May 12 th respectively. [ 61 ] At the time of the withdrawal of the protection application, neither the society nor the Children’s Lawyer had the mother’s police records as the mother continued to refuse to sign a consent for this information to be released.

The society subsequently obtained some information on May 27, 2011and according to the Affidavit of Theresa Zonnefeld, sworn May 30, 2011, “upon receipt and consideration of the information, the society maintained its position regarding the withdrawal of the protection application with respect to M.R.”

The Law: [62] Rule 24 of the Family Law Rules governs the matter of costs in family law proceedings. Rule 24(1) provides that there isa presumption that a successful party is entitled to costs. However, Rule 25(2) provides that this presumption does not apply in childprotection cases or to a party that is a government agency. Pursuant to Rule 24(3), the court has discretion to award costs to or against aparty that is a government agency, whether it is successful or unsuccessful. [63] Subrules 12(3) and 12(4) of the Family Law Rules are also relevant in this case.

Subrule 12(3) provides that a party whowithdraws 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. Rule 12(4) provides thatdespite subrule (3), if the party is a government agency, costs are in the court's discretion.

Rule 2 states that “government agency”includes a children’s aid society. [64] The case law regarding costs against a children’s aid society demonstrates that a society’s conduct need not amount to badfaith in order to attract a costs award. However, there must be exceptional circumstances of unreasonable or unfair behaviour. Thereason for this is that a society must not be penalized in carrying out its statutory mandate to protect children. As the Ontario DivisionalCourt stated in S. (D.), Re, (ON SCDC), [2003] O.J. No. 945, 2003 (Ont. Div.

Ct.): The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a children'said society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection and itshould not be dissuaded from the pursuit of its statutory mandate by costs considerations. [65] In Children’s Aid Society of the Region of Halton v. K.J.H. [2004] O.J.

No. 3828, Justice Theo Wolder reviewed the caselaw regarding costs and sets out the test to be applied in determining whether to impose costs against a children’s aid society as follows: In Children’s Aid Society of Algoma v. Robert M., Christine M., Brian B., Barbara B., Christopher H. and Joanne H. (ON C.J.), (2001), 18 R.F.L. (5th) 36, [2001] O.J. No. 2441, 2001 CarswellOnt 2204 (Ont. C.J.), Justice John Kukurin set out a thoroughreview of the competing considerations of cost awards in child protection proceedings.

Since the introduction of the Family Law Rules,the test to be applied in deciding whether to impose costs against a children’s aid society is whether a reasonable person would perceivethe society as having acted unfairly and unreasonably in its conduct. See Children’s Aid Society of Ottawa-Carleton v. C. and H., 2000CarswellOnt 5448 (Ont. Fam. Ct.). Costs may be awarded against a society on this basis, even absent of finding of bad faith. SeeChildren’s Aid Society of Ottawa v. D.S. (2002), 110 A.C.W.S. (3d) 1055, [2002] O.J. No. 146, 2002 CarswellOnt 143 (Ont. Fam.

Ct.). [66] Courts have applied the fairness principle both before and after enactment of the Family Law Rules in 1999. In CASWaterloo v. B.Z. (ON CJ), [1996] O.J. No. 4245, Justice Heather Katarynych set out the following principles indetermining whether a party is entitled to costs against a society: “From that jurisprudence, I concluded that the adjudication of a claim for costs against a children’s aid society must be guided by thefollowing principles: 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 underthe 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 beprotected. 4. As part of its duty to act with fairness and reasonableness in carrying out its statutory responsibilities a society must exercisegood 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 aparent's rights. 6. The essential test for the appropriateness of an award of costs against the society is whether the society should be perceivedby ordinary persons as having acted fairly. 7. An ordinary person perceives a society as having acting 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 needfor protection;

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

c) as part of its thoroughness, the society, mindful of its duty under subsection 2(2) of the Act to ensure that children and parents havean opportunity, where appropriate, to be heard and represented when decisions affecting their interests are made, has interviewed theperson who is alleged to have created the need for protective intervention, invited that person to have counsel involved, permitted thatperson 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 personagainst whom the allegation is made;

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

f) the society has reassessed its position as more information becomes available, even if a court hearing is in session at the time; inshort, it has continued its investigation up to the time of a final court determination of the alleged need for protection, and done so in avigorous professional manner; and

g) the society has investigated all pieces of relevant information, not just those pieces for which there is uncontroverted proof. [67] In Children’s Aid Society of Brant v. V.G. [2001] O.J.

No. 3202, Justice Thibideau held that there were two principles tobe considered in assessing whether costs should be awarded: 1. there should be no costs against a society that loses a case simply because of that loss, without something more being present; and 2. costs should be awarded in exceptional circumstances, the exact definition of which has been interpreted in various ways but allpointing to conduct by the society that is seen as patently unfair by the public at large. [68] In A.M. v. Chatham-Kent Integrated Children Service Children’s Aid Society 2006 ONCJ 555 , [2006] O.J.

No.4522, Justice Margaret McSorley summarises the principles that can be gleaned from the case law on the issue of costs against achildren's aid society as follows:

a) Costs against a Society should only be awarded in exceptional circumstances;

b) Exceptional circumstances includes conduct by the Society that is seen as patently unfair by the public at large;

c) Societies are not ordinary litigants and should not be penalized for attempting to fulfill their mandates unless they have acted insome indefensible manner;

d) A society should not be penalized for an error in judgment, but an error in judgment can only truly arise where the society hasconsidered all courses of action reasonably available at the time;

e) A society must be even-handed and reassess its position as the investigation unfolds and more information becomes known;

f) Costs should be awarded if the Society would be perceived by ordinary persons as having acted unfairly;

g) Costs may be awarded against a Society even absent bad faith; and

h) The possibility of an award of costs is the only manner in which a litigant, including a Society can be held accountable for itsactions. Analysis: [69] The society had to issue its protection application on November 18, 2010 regarding J.V. as the disclosures of physical andemotional abuse by his mother were very serious. J.V. was refusing to return to his mother’s care and he was turning sixteen years old onNovember 19, 2010. The society would have lost the jurisdiction to protect him had they not commenced proceedings.

At that time, themother opposed the placement of J.V. with his aunt and uncle and argued against this placement at the temporary care and custodyhearing that was heard on February 24, 2011. [70] Further, I find that the society had no choice but to include M.R. in the protection application because the mother hadrefused to provide information to the society regarding M.R. and refused to cooperate in its investigation regarding M.R.

The motherstates in her submissions that the police report that prompted the society’s investigation did not mention her younger child, however, thisdoes not mean that the society is not permitted to ask questions or conduct an investigation about other children in the mother’shousehold.

Given the serious allegations of physical abuse regarding J.V., the society was under a statutory and legal obligation toinvestigate protection concerns regarding all children under the mother’s care and control. [71] The mother’s submission that the protection application regarding M.R. was unnecessary because the society hadreceived information regarding M.R.’s school from the grandmother ignores the fact that the society still needed the court order tocompel the mother to sign a consent permitting the society to contact M.R.’s school.

Even after the society obtained the November 25,2010 order, the mother did not provide the consent, amended by her with significant restrictions, for almost two months. [72] I also reject the mother’s submission that the society should have withdrawn its protection application immediately afterthe grandmother recanted her previous statements on November 24, 2010. It is not up to the grandmother to determine whether there areprotection concerns. The society still had an obligation to assess and investigate the risk to M.R. and cannot take directions from thegrandmother.

At that point, the mother was still refusing to cooperate with the society’s investigation. [73] The society obtained a minimally intrusive order from Justice Wolder on November 25, 2010, which compelled themother to cooperate with the society’s investigation of protection concerns. After the order was granted, the society did indeedthoroughly investigate all allegations and evidence of M.R.’s need for protection.

Absent Justice Wolder’s order, the society would nothave been able to obtain the information that ultimately led to the withdrawal of the protection application regarding M.R. [74] I find that the mother’s actions prevented the society from conducting a thorough investigation prior to commencing courtproceedings regarding M.R. As the mother is the author of her own misfortune, she cannot now claim her costs associated with theseproceedings against the society. [75] The cases that the mother relies upon are fundamentally distinguishable from the facts in this case.

In the Children’s AidSociety of the Region of Halton v. K.J.H. [2004] O.J. No. 3828, the society apprehended without a warrant three children from the

mother. At the temporary care and custody hearing, Justice Wolder found that the society was justified in apprehending the oldest child on the basis of allegations of sexual abuse made against the father and the mother’s inability to care for her. However, he found that there was no reason to justify the apprehension without warrant of the two younger children and ordered that the two children be returned to the mother. The evidence demonstrated that the mother had always taken steps that were child-focused and in the children’s best interests.

Justice Wolder found that the apprehension of the two younger children without a warrant from the care of their mother to be exceptional society conduct that falls within the definition of being unfair and unreasonable and ordered costs against the society at the mother’s request. [ 76 ] In the other two cases principally relied upon by the mother, the children’s aid societies involved had restricted access between father and his son, and removed children from a foster home based on allegations that neither agency had adequately investigated.

In both cases, the society proceeded all the way to a contested trial without reassessing its earlier position, despite new information becoming available. [2] [ 77 ] In the case before me, the society sought a minimally intrusive order to permit it to adequately investigate protection concerns regarding M.R. because the mother refused to cooperate in the investigation. The society did not remove M.R. from the mother’s care or restrict the mother’s access to M.R. in any way.

Once the court order permitted the society to obtain the information necessary to complete its investigation, the society reassessed its earlier position and was satisfied that the protection application regarding M.R. should be withdrawn. [ 78 ] The mother further submits that it should not have taken six months and numerous court appearances before the society withdrew its application regarding M.R. In my view, the length of time that the society needed to assess and reassess its position as more information became available was fair and reasonable.

Even after the society obtained its court order compelling the mother to cooperate, she did not sign the school consent for almost two months and declined to consent to a police and criminal record check throughout the proceedings. If anything, the society’s withdrawal of the protection application on May 4, 2011 was premature given that it still had not received any information regarding the mother’s criminal record and police involvement at that time, nor had the Office of the Children’s Lawyer.

It is unclear how the society subsequently obtained that information on May 27, 2011. [ 79 ] The litigation strategy adopted by the mother throughout these proceedings also contributed to the delay. Since the application was commenced, the society has brought two motions: the original motion for a temporary supervision order regarding M.R. in light of the mother’s refusal to cooperate in the investigation, and the motion for substituted service of the protection application on the mother in light of the mother’s evasion of service of the originating proceedings.

During the same six month period, the mother has brought eight motions and she has filed fourteen affidavits. These motions have caused numerous court attendances and expended significant court time, resulting in significant expense and delay. In several of the motions, the mother sought relief which this court had no jurisdiction to grant. On at least two occasions, court appearances were adjourned because the mother failed to comply with court ordered timelines or attended court more than two hours late. [ 80 ] This motion for costs required three lengthy court appearances.

The mother also served six summonses on Ms Thompson, the original child protection worker, to attend a court reporter’s office for questioning, pursuant to Rule 20 of the Family Law Rules . Ms Thompson attended the court reporter’s office on three separation occasions. The mother cross-examined Ms Thompson, however, she did not order the transcript, requiring the society to do so. The mother also served a summons on Ms Theresa Zonneveld, Ms Thompson’s supervisor, to attend a court reporter’s office for cross-examination in aid of her costs motion.

The mother also brought a motion seeking an order that Ms Zonneveld attend for cross-examination in aid of her costs motion, as well as other relief. I declined to grant the order given that the mother had already extensively examined Ms Thompson in aid of her motion and had filed voluminous material with respect to the cost motion. [ 81 ] I am concerned that Ms. Thompson advised the respondent fathers and possibly M.R.’s school at the outset of the investigation that the society may have “possible mental health concerns” about the mother.

This may have been an error in judgment but it did not amount to bad faith or patently unfair conduct. In accordance with the principles set out in the case law, the society should not be penalized for this error in judgment, particularly given the totality of the circumstances that gave rise to the protection application and the mother’s conduct throughout.

Conclusion: [ 82 ] In conclusion, I find that the society’s conduct throughout these proceedings does not fall within the range of exceptional circumstances by which a reasonable person would perceive the society to have acted unreasonably and unfairly, thereby attracting costs. On the contrary, the society has conducted itself fairly and professionally in the face of very difficult and often unreasonable behaviour by the mother, which greatly increased the costs of these proceedings. [ 83 ] The mother’s motion for costs is therefore dismissed.

Released: August 11, 2011 Amended: August 30, 2011 Signed: “Justice Sheilagh M. O’Connell”