NCNFCS & ANCR v KB, 2018 MBCA 1

Citation: NCNFCS & ANCR v KB, 2018 MBCA 1 Date: 20180108 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner Docket: AH16-30-08711 ) BETWEEN : ) ) NISICHAWAYASIHK CREE NATION ) R. A. McFadyen FAMILY AND COMMUNITY SERVICES ) for Nisichawayasihk ) Cree Nation Family and (Petitioner) Appellant ) Community Services - and - ) ) CHILD AND FAMILY SERVICES ALL ) NATIONS COORDINATED RESPONSE ) G. A. Johnson NETWORK ) for Child and Family Services ) All Nations Coordinated (Petitioner) ) Response Network - and - ) ) K. B. ) ) M. D.

Paluk (Respondent) Respondent ) for K. B. - and - ) ) J. G. ) ) No appearance (Respondent) ) for J. G. - and - ) ) Docket: AH17-30-08738 ) BETWEEN : ) Appeal heard: ) September 19, 2017 CHILD AND FAMILY SERVICES ALL ) NATIONS COORDINATED RESPONSE ) NETWORK ) ) Judgment delivered: (Petitioner) Appellant ) January 8, 2018 ) - and - ) ) NISICHAWAYASIHK CREE NATION ) FAMILY AND COMMUNITY SERVICES ) ) (Petitioner) ) - and - ) ) K. B. ) ) (Respondent) Respondent ) - and - ) ) J.

G. ) ) (Respondent) ) NOTICE OF RESTRICTION ON PUBLICATION: No one may disclose any information likely to identify any person involved in the proceedings as a party or a witness (see section 75(2) of The Child and Family Services Act , CCSM c C80)

On appeal from NCNFCS & ANCR v JG et al , 2016 MBQB 97 PFUETZNER JA [ 1 ] Two child welfare agencies each appeal an award of costs made against it in favour of the respondent, KB (the father). [ 2 ] The motion judge’s award was based on two findings. First, he found that the agencies breached their obligation to provide timely written disclosure to the father of the grounds of apprehension of his two children.

Second, he found that, on the facts of this case, the general rule against costs awards against child welfare agencies did not apply. [ 3 ] For the reasons that follow, I am of the view that the motion judge did not err in principle in ordering costs against the agencies, nor was his decision plainly wrong. I would dismiss the appeal. Background [ 4 ] The costs order in this case was made in the context of a warrantless apprehension of the father’s two children, BB born May 22, 2007, and SB born August 3, 2008 (the children).

Although the father initially moved to challenge the apprehension, this and other relief sought in a notice of motion was abandoned after the father received full particulars of the grounds for apprehension. However, the father maintained his request for costs against the agencies for their collective failure to provide particulars in a timely fashion. As a result, the timing of the procedural steps taken in this case is important. [ 5 ] The children resided in the primary care of the respondent, JG (the mother), until June of 2014.

From June to September 2014, the father took over primary care of the children at the request of the mother. The mother re-asserted care of the children in September 2014 for a further 11 months until just prior to their apprehension by the petitioner, Child and Family Services All Nations Coordinated Response Network (ANCR). [ 6 ] On August 10, 2015, the mother dropped the children off at the home of, and in the care of, the father’s brother in the City of Winnipeg. She indicated that she was not well and was unable to care for the children.

On August 14, 2015, the father arrived at his brother’s home to assume care of the children.

His plan was to reside at his brother’s home with the children until he could find suitable accommodation for himself and the children. [ 7 ] Later in the day on August 14, 2015, two workers from ANCR arrived at the father’s brother’s home and apprehended the children, telling the father that the apprehension was due to the mother’s mental health and addiction issues and her use of inappropriate caregivers. [ 8 ] After the apprehension on August 14, 2015, the following occurred: • August 19, 2015—ANCR filed a petition and notice of hearing in the Court of Queen’s Bench and a notice of motion seeking a transfer order pursuant to section 28(2) of The Child and Family Services Act , CCSM c C80 (the Act ), for Nisichawayasihk Cree Nation Family and Community Services (NCN) to be substituted for ANCR as the petitioner. • August 19, 2015—The father was served with the petition and motion material filed by ANCR. • August 21, 2015—The mother was served with the material filed by ANCR.

She has not taken an active role in the proceedings. • August 21, 2015—NCN provided written notice that it would accept the transfer of the matter from ANCR. • August 27, 2015—ANCR served the father with a document entitled Particulars

Summary (the initial particulars) indicating the following grounds for the apprehension: CIRCUMSTANCES OF APPREHENSION : [initial apprehension] [The mother] left the care of her children with inappropriate care providers. There are ongoing concerns regarding drug use and mental health issues with [the mother]. As there was no suitable alternate caregiver available, the children were apprehended by the After Hours Unit of [ANCR]. • September 3, 2015—The master pronounced a transfer order substituting NCN for ANCR as the petitioner.

The matter was adjourned to September 9, 2015, for “[p]articulars to: [father’s counsel]” and “planning”. • September 9, 2015—The matter appeared on the master’s Child Protection Docket and was adjourned to September 23, 2015, for “[p]articulars to: [father’s counsel]” and “planning”. • September 23, 2015—The matter appeared on the master’s Child Protection Docket and was adjourned to October 7, 2015, for “[p]articulars to: [father’s counsel]” and “[i]nstructions to: [father’s counsel]”. • September 23, 2015—NCN provided particulars to the father’s lawyer (the further particulars).

The further particulars included what was provided in the initial particulars but added:

PLANS FOR THE PARENT/GUARDIAN: Mom is suspected of being back on drugs and will need further assessment by agency worker . Long term planning which will most likely include treatment and other programs will be needed by mother. Father is currently homeless but maintains weekly visits with children in the foster home. • October 6, 2015—The father’s lawyer wrote to counsel for NCN asking for a letter to Manitoba Housing to help the father obtain accommodation for him and the children on an emergency basis.

The father’s lawyer also enquired if NCN had any other concerns regarding the father’s parenting. • October 7, 2015—The matter appeared on the master’s Child Protection Docket and was adjourned to October 21, 2015, for “[d]iscussions”, “further [p]articulars to: [father’s counsel]” and “[i]nstructions to: [father’s counsel]”. • October 21, 2015—NCN’s social worker met with the father in person and outlined the reasons for ANCR’s apprehension and additional current concerns regarding the father, including a past allegation of child abuse, homelessness, prior drug addiction and a history of domestic violence.

NCN’s concerns were not reduced to writing. • October 21, 2015—The matter appeared on the master’s Child Protection Docket and was adjourned to November 4, 2015, for “[i]nstructions to: [father’s counsel]”. • October 28, 2015—The father’s lawyer wrote to counsel for NCN. The letter states (in part): I had previously sent you a letter asking for [NCN] to outline what protection concerns they had against [the father].

To that end, please provide me with an update of [NCN’s] particulars outlining what are the protection issues preventing [the father] from caring for his children at this time from [NCN’s] perspective. • November 2, 2015—NCN’s social worker met again with the father to review the grounds of apprehension.

No written indication of the concerns was provided. • November 2, 2015—Counsel for NCN wrote to the father’s counsel and provided additional information as to its concerns: that the father had a criminal record check which resulted in a “high risk” designation and that, in 2008, the father had been accused of domestic violence in a separate child protection proceeding. • November 4, 2015—The matter appeared on the master’s Child Protection Docket and was adjourned to November 18, 2015, for “[i]nstructions to: [father’s counsel]”. • November 18, 2015—The matter appeared on the master’s Child Protection Docket and was adjourned to a pre-trial conference on January 29, 2016. • November 26, 2015—The father’s counsel filed a notice of motion returnable on December 2, 2015, for relief that included an order quashing the apprehension of his children; an order that NCN provide further and better particulars of the reasons for the apprehension; and costs. • December 2, 2015—The matter appeared on the master’s Child Protection Docket and the father’s motion was adjourned to December 9, 2015. • December 7, 2015—NCN provided full particulars (the final particulars) to the father’s counsel.

The final particulars set out detailed concerns regarding the father that went well beyond his homelessness and which, notably, were known to the agencies at the time of the apprehension. • December 11, 2015—NCN provided all of the ANCR notes and Child and Family Services Information System entries to the father’s counsel. • December 14, 2015—NCN provided the father’s counsel with “can-say” statements of each of the workers who would be called as witnesses on the hearing of the motion. • December 16, 2015—The father withdrew all the claims in his motion other than his request for costs which was set for hearing on February 26, 2016.

Decision of the Motion Judge [ 9 ] The motion judge issued written reasons for decision. He began by reviewing the obligation of an agency under the Act to provide “particulars of the grounds that are alleged to justify a finding that the child is in need of protection” (at para 25), together with a notice of the hearing to determine if the child is in need of protection (see section 30(1) of the Act ).

Under section 27(1) of the Act , the agency must bring an application for that hearing within four juridical days after the apprehension and the application must be returnable within seven juridical days (see section 29(1) of the Act ). [ 10 ] The motion judge analysed the legislation and found that the agency must provide the particulars in writing and that the particulars must be provided with the notice of the post-apprehension hearing.

A failure to do so would, in the view of the motion judge, make the principles in Winnipeg Child and Family Services v KLW , 2000 SCC 48 , “meaningless” (at para 31). [ 11 ] The motion judge found that ANCR provided no particulars of the grounds of apprehension as against the father at the time that it filed its petition and notice of hearing. In other words, the initial particulars referred only to the grounds of apprehension as

against the mother. The motion judge found that NCN first indicated that there were any grounds of apprehension as against the fathermore than five weeks after the apprehension when it described him as “homeless” in the further particulars. The motion judge found thata verbal indication of the grounds of apprehension is not sufficient to satisfy the obligation on an agency under section 30(1) of the Act. [12] As a result, the motion judge found that ANCR breached its obligations under section 30(1) of the Act.

He furtherfound that NCN also breached its obligations under the Act as it should have quickly taken steps to rectify the lack of particulars after itbecame the petitioner. [13] The motion judge then turned to a consideration of the father’s request for costs against the agencies. He correctlynoted that the leading case in Manitoba in respect of costs awards against a child welfare agency provides that “costs should not beawarded against the [agency], except in exceptional circumstances.

Such words as ‘unfair treatment’ or ‘high-handedness’ which denotesome improper or overbearing attitude on the part of the [agency] appear time and again in the decided cases” (Winnipeg Child andFamily Services v AMH, (MB CA), 2002 MBCA 8 at para 12). [14] The motion judge referred to the policy reason for the rarity of costs orders against child welfare agencies, quoting asfollows from AMH (at para 11): “[T]he potential impact of an order of costs should not deflect the Agency from fulfilling its duty toprotect children, which includes both their apprehension and, where appropriate, court proceedings, where the object is to obtain apermanent order of guardianship.” The motion judge commented that, “[w]here there is a need for a speedy apprehension, it isunreasonable to expect front-line social workers to undertake a legal analysis as to whether or not the Agency could be exposed to anorder of costs if that worker moves to protect a child whom they reasonably believe to be at risk” (at para 41). [15] However, the motion judge distinguished the circumstances in this case from those that led to the development of thepolicy described in AMH that costs orders against child welfare agencies should be rare.

At issue in this case is not the decision toapprehend the children, but “the petitioners’ collective failure to meet their statutory obligation to provide the grounds to justify theapprehension in a timely manner and in written form” (at para 43). He concluded that “[a]n Agency will not be insulated from costswhere their own actions/inactions have led to the parent’s inability to test an apprehension in court on a timely basis” (at para 43).

Themotion judge ordered costs of $500 against ANCR and costs of $1,500 against NCN. [16] The agencies subsequently moved before the motion judge for leave to appeal his costs award pursuant to section90(1)(

b) of The Court of Queen’s Bench Act, CCSM c C280, and the motion judge granted leave (see NCNFCS & ANCR v JG et al, 2016MBQB 215). Positions of the Parties [17] NCN concedes that the motion judge correctly identified the principles applicable to costs awards against child welfareagencies. However, NCN argues that the decision is plainly wrong as the conduct of NCN and its counsel was not improper oroverbearing so as to constitute the “exceptional circumstances” required to justify a costs order against it.

NCN argues that the motionjudge erred in characterizing the letters from the father’s counsel dated October 6, 2015, and October 28, 2015, as demands for furtherparticulars. Accordingly, NCN argues that it was not aware, nor should it have been, that the father had any concern about thesufficiency of the particulars provided to him until he filed his motion, at which point NCN quickly responded.

However, NCN does nottake the position that the initial particulars provided were, in fact, sufficient. [18] ANCR supports the arguments of NCN but adds that ANCR was only involved in the apprehension of the children fromFriday, August 14, 2015, until Monday, August 17, 2015, when NCN resumed providing services as NCN already had an open file withthe family. ANCR argues that the initial particulars were timely, sufficient and in compliance with the Act. [19] The father argues that the motion judge did not err in finding that both ANCR and NCN failed to provide particulars tohim as required by the Act.

The father says that the motion judge correctly identified the importance of the production of timelyparticulars to allow parents to know the case they need to meet. The father submits that the failure to provide particulars in thecircumstances of this case amounts to an improper or overbearing action by the agencies as it rendered it impossible for the father toexercise his right to a fair and prompt post-apprehension hearing and it also prejudiced the interests of the children in having their statusdetermined quickly. Discussion [20] Costs awards are discretionary.

An appellate court should not intervene in an award of costs unless the judge erred inprinciple or the decision is plainly wrong (see BW v Child and Family All Nations Coordinated Response Network, 2009 MBCA 95 atpara 76). [21] The agencies do not argue that the motion judge erred in principle; rather, they say his decision was plainly wrong. I donot agree. [22] As previously noted, the motion judge’s decision to award costs was based on two findings.

First, that the agenciesbreached the Act and, second, that an award of costs was appropriate on the facts. [23] The motion judge’s finding that both the initial particulars and the further particulars failed to comply with the Act wasopen to him on the record. The fundamental problem with both the initial particulars and the further particulars is the lack of grounds ofapprehension as against the father. Indeed, the motion judge notes that the initial particulars contain “no mention of the respondentfather from whose care the children were apprehended” (at para 11).

The further particulars merely stated that he was “homeless”. [24] In KLW, the Supreme Court determined that, in the context of a warrantless apprehension, a fair and prompt post-apprehension hearing is the minimum procedural protection mandated by the principles of fundamental justice (see also Manitoba(Director of Child and Family Services) v HH and CG, 2017 MBCA 33 at para 2).

[25] The timely provision of adequate particulars is critical to ensure that a prompt and fair post-apprehension hearing canoccur. This is consistent with this Court’s recognition in HH and CG that child protection matters and, in particular, post-apprehensionhearings, are “urgent” (at para 70). Not only are the rights of the parents to security of the person at issue (see

section 7 of the CanadianCharter of Rights and Freedoms; and KLW), but the best interests of the children are at stake. [26] In Catholic Children’s Aid Society of Metropolitan Toronto v M (C), (SCC), [1994] 2 SCR 165,L’Heureux-Dubé J referred to the importance of timeliness in resolving matters affecting children when she wrote (at p 206): “The Actrequires it and common sense dictates it. A few months in the life of a child, as compared to that of adults, may acquire greatsignificance.

Years go by crystallizing situations that become irreversible.” [27] This is not to say that particulars must be excessively detailed and extensive. However, at a minimum, particulars mustinform the parents of the case against them. In the circumstances of this case, the motion judge did not err in finding that the particularswere insufficient and that the agencies were in breach of section 30(1) of the Act. [28] I am not persuaded that the motion judge’s second finding—that an award of costs was appropriate on the facts—wasplainly wrong.

In fact, I agree with him. [29] The motion judge distinguished the circumstances in this case from those that led to the general principle set out inAMH. In AMH, the agency sought a permanent order of guardianship on the basis that the child was in need of protection. The orderwas denied after a trial and costs were ordered against the agency.

In overturning the award of costs, this Court stated (at para 12): “Solong as the Agency acts reasonably and in good faith, it should not have costs assessed against it regardless of the ultimate result of thelitigation.” [30] Here, the conduct of the agencies in determining whether the children were in need of protection is not at issue; rather,the issue is the conduct of the agencies in the procedural steps that followed. [31] There is support in the jurisprudence for the distinction drawn by the motion judge.

The Ontario courts haverecognized that costs awards against child welfare agencies for procedural failings can be distinguished from costs awards against anagency for actions relating to the merits of a child protection proceeding. [32] Ontario’s Family Law Rules, O Reg 114/99 (the Ontario Rules), have provisions regarding costs awards that apply to allfamily proceedings. The starting point is that there is a presumption that a successful party is entitled to costs (see r 24(1)). However,the presumption does not apply in a child protection case or to a party that is a government agency (see r 24(2)).

Finally, relevant to theissues on this appeal, the Court is given discretion to award costs to or against a party that is a government agency whether it issuccessful or not (see r 24(3)). [33] The general rule in Ontario is analogous to that in Manitoba in that costs are not generally awarded against agencies inchild protection matters.

The general rule in Ontario has been described as follows: “The test to attract costs against a Children’s AidSociety in a child protection proceeding is a high one in that ‘there must be exceptional circumstances or unreasonable or unfairbehaviour’” (CFSYR v GH and RH, 2017 ONSC 3098 at para 24). [34] However, the Ontario Court’s residual discretion to award costs against a child welfare agency is often exercised for thepurpose of holding an agency accountable for procedural failings.

For example, in Children’s Aid Society of Hamilton-Wentworth v F(A), 2001 CarswellOnt 253 (Sup Ct J), costs were awarded against a child welfare agency that brought an untimely motion to remove aparent’s counsel. McLaren J commented (at para 10): This is a procedural motion and an order for costs in this case cannot be said to deter the [agency] from diligently protecting children inthe future. This will not be an order for costs because the Society failed on the merits of a [Child and Family Services Act] application.

That would be a very different situation. [35] In Children’s Aid Society of London and Middlesex v TS-V, 2013 ONSC 4517, a costs award of $3,250 was orderedagainst a child welfare agency for a wrongful apprehension of five children immediately after being refused a warrant.

Vogelsang Jstated (at para 5): Recent cases, however, seem to distinguish between claims for costs against a Society where there has been a legitimate, objectivelyreasonable attempt to ensure a child’s safety and protection and a costs claim where there has been procedural misconduct or irregularitywhich has led to the incurring of additional litigation and extra expense for respondents. [36] Similarly, in Children’s Aid Society of Hamilton v KL and TM, 2014 ONSC 3679, while Chappel J did not make anorder for costs, she commented that, “[i]n cases involving procedural impropriety on the part of a Society, the level of protection fromcosts may be lower if the irregularity is not clearly attributable to the Society’s efforts to diligently carry out its statutory mandate ofprotecting children” (at para 14). [37] See also Children’s Aid Society of Waterloo (Regional Municipality) v C (ZB), (ON CJ), 1996CarswellOnt 4670 (Ct J) (Prov Div) (costs of $200 were awarded against the agency because it had failed its investigatory duties in notinterviewing a child complainant before starting protection proceedings); Children’s Aid Society of Algoma v M (R), (ON CJ), 2001 CarswellOnt 2204 at para 108 (Ct J) (costs of $77,000 were awarded against an agency to hold it accountable for themanner in which it investigated its case and presented it to the court); Children’s Aid Society of Hamilton-Wentworth v R (S), (ON SC), 2003 CarswellOnt 1241 (Sup Ct J), leave to appeal to Ont Sup Ct J (Div Ct) refused 2003 CarswellOnt 2952(costs were awarded against the agency because it failed to comply with disclosure timelines); Children’s Aid Society of Niagara Region

v B (C), (ON SC), 2005 CarswellOnt 4414 at para 115 (Sup Ct J) (costs were awarded against the agency notbecause it effected an unlawful apprehension, but because it lost the unlawful-apprehension motion and, in doing so, attempted to defendconduct that was indefensible); and GH and RH (costs were awarded against the agency for having failed to comply with disclosureorders made by the Court or with the parents’ requests for disclosure in a timely fashion). [38] Although not a child protection case, it is worth noting that, in BW v Child and Family All Nations CoordinatedResponse Network (Winnipeg Centre), 2009 MBQB 88, aff’d 2009 MBCA 95, Diamond J found that the agency’s failure to provide “fulland complete particulars in a timely fashion” (at para 18) unnecessarily lengthened the duration of proceedings, and awarded costs of$15,000 against the agency.

The agency in that case failed to comply with the time limits set out The Child Abuse Regulation, Man Reg14/99, in connection with entering a person’s name on the Child Abuse Registry.

In that case, Diamond J found that “[t]he agency’scarriage of this case throughout was clearly below reasonable professional standards expected of an agency in fulfilling its mandatedresponsibilities” (at para 15) and concluded that, “[a]lthough I am satisfied that there was no evidence of bad faith on the part of theagency, its conduct does fall within exceptional circumstances of improper, indefensible and unreasonable action that warrants an orderof costs.” Thus, an order of costs against an agency for procedural failings is not unprecedented in Manitoba. [39] Not every procedural breach will justify an award of costs.

On the other hand, it is not necessary to prove bad faith inorder for an agency to be held accountable with a costs award. In between the two extremes of minor procedural breaches and mala fideslies a spectrum of negligent, unprofessional or inappropriate conduct that can justifiably attract costs sanctions depending on thecircumstances. [40] In this case, ANCR only had de facto carriage of the matter for a few days. However, as mentioned, the fundamentalproblem with the initial particulars provided by ANCR was that they contained no grounds of apprehension in respect of the father.

Infact, the particulars read as though the children had been apprehended from their mother. NCN failed to rectify this for a considerableperiod of time. On any measure, the initial particulars and the further particulars were completely inadequate. Conclusion [41] The motion judge did not err in finding that the agencies were in breach of their obligations under the Act to providetimely written particulars to the father. The motion judge distinguished the facts in this case from the general rule regarding costs set outin AMH on a principled basis.

Notably, his reasoning is supported by Ontario jurisprudence dealing with an analogous costs regime. Moreover, the failure to provide timely written particulars can, in some cases, amount to exceptional circumstances warranting a costsaward against an agency under the general principle set out in AMH (see BW). [42] In the result, I am not convinced that the motion judged erred in principle or that his decision to award costs againsteither of the agencies was plainly wrong. [43] Accordingly, I would dismiss both appeals.

JA I agree: JA MONNIN JA (dissenting): [44] I have had the benefit of reading Pfuetzner JA’s proposed reasons denying this appeal. With respect, I come to adifferent conclusion. [45] For the reasons that follow, I would allow the appeal and set aside the award of costs against NCN and ANCR. [46] I agree with the general principles of law dealing with costs and child welfare agencies as is set out in my colleague’sreasons. However, I question the applicability of the so-called procedural costs awards made by the Ontario courts to which mycolleague refers as being partial justification of the motion judge’s award.

As well, I am not satisfied that the facts of this case justify thefinding by the motion judge that exceptional circumstances existed on which to base his award of costs. [47] I question the reliance on the Ontario procedural line of cases for three reasons. [48] The first reason why I consider those cases to be inapplicable to this case is that Ontario has a detailed rule on costs aspart of its Family Law Rules, O Reg 114/99, which deals specifically with the award of costs for or against government agencies (seer 24).

In Manitoba, we have no such provisions and, in my view, we are still to be guided by the principles set out in Winnipeg Child andFamily Services v AMH, (MB CA), 2002 MBCA 8, as adverted to by the motion judge and my colleague; that is thatcosts should not be awarded except in exceptional circumstances. I will come back to this principle later in my reasons. [49] The second reason why I do not accept the reliance placed on the Ontario procedural decisions is that, in my view, the

fact situations in many of those cases are far different than the factual context of the case at bar. I refer only to two of the cases cited by my colleague to clarify how the factual context of those decisions differs from the factual context in the case at bar. [ 50 ] In Children’s Aid Society of Hamilton-Wentworth v F (A) , 2001 CarswellOnt 253 (Sup Ct J) , not only is the matter in issue defined as procedural by the judge, but he goes on to state that “[t]here was no excuse for bringing these procedural motions at the commencement [of] trial” (at para 11).

The judge in that case goes on to state that the agency acted unreasonably in the context of rr 24(4)-(5) of the Ontario Rules . McLaren J goes on to particularize the unreasonableness to which he refers as follows (at para 12): 1. Requested an adjournment of the trial until one particular Society lawyer was available, even though the Assignment Court judge had already turned this request down. 2. Requested that the mother’s lawyer be removed from the record due to a conflict of interest, even though:

i) she had been on the record for approximately eight months and the Society made no objection, not even at the Trial Management Conference or at Assignment Court. ii) they were clearly unprepared for trial, in that the affidavits were still not completed, which makes this part of the motion suspect. iii) there was no basis to find a conflict of interest in that Ms. Baker’s client was not a client of the Society during Ms. Baker’s employment.

There was, furthermore, no basis to find a conflict in general as requested, which would prohibit her from acting for all future parents against the [Children’s Aid Society]. [ 51 ] In Children’s Aid Society of London and Middlesex v TS-V , 2013 ONSC 4517 , it would appear that the order for costs was made because the issue was “ the propriety of the Society apprehending six children without a warrant immediately after a Justice of the Peace had dismissed an application for a warrant to apprehend five of the children” (at para 2). [ 52 ] In my view, it would be unwise to rely upon the Ontario jurisprudence that my colleague cites because it is based on rules of court that do not exist here in Manitoba and the factual context on which those decisions are based is, in my view, more troubling than what was before the motion judge. [ 53 ] Finally, the third reason is that the motion judge himself did not take that line of cases into consideration in arriving at his decision, nor was reliance on those decisions argued during the hearing of this appeal.

This in and of itself is not sufficient to say that those lines of cases are inapplicable in Manitoba, but it is still noteworthy that the motion judge or the father did not consider them to be so applicable as to consider them. [ 54 ] Having so stated, I therefore consider the law as to costs in this case to be as stated in AMH , supra , and acknowledged by the motion judge in his reasons as being the applicable law in Manitoba.

In that case, Huband JA wrote (at para 12): So long as the Agency acts reasonably and in good faith, it should not have costs assessed against it regardless of the ultimate result of the litigation. The principle is well expressed in Mark M.

Orkin, Q.C., The Law of Costs , looseleaf, 2d ed. ([Toronto]: Canada Law Book Inc., 2001) at 2-90 and 2-91: In wardship proceedings involving a Children’s Aid Society costs have been awarded against the agency when it acted improperly, or unfairly and indefensibly, or adopted an untenable position, but not where the agency brought the proceedings in good faith and committed no error; or, where although the agency made severe and grave allegations against [the] respondent which it subsequently withdrew, the agency acted in a manner consistent with its responsibilities and an ordinary person would not see such actions as unfair or unreasonable.

Costs should only be ordered against an agency in exceptional circumstances of improper or overbearing action. The principle set forth in this passage has found expression in the case of D. G. v. Catholic Children’s Aid Society of Metropolitan Toronto , [1992] O.J. No. 3057 (QL) (Gen. Div.) . In refusing to order costs against the agency, Somers J. stated at p. 3: Our courts have been unanimous in holding that costs should not be awarded against the Children’s Aid Society, except in exceptional circumstances.

Such words as “unfair treatment” or “high-handedness” which denote some improper or overbearing attitude on the part of the Society appear time and again in the decided cases. In my view, the actions taken by the Society were not unfair. Their concern for the welfare of these two boys appears to have been well-founded, hence, the order that the Society continue to play a supervisory role in their upbringing.

[ 55 ] Applying the facts of this case to this statement of the law, I conclude that the motion judge was plainly wrong when he found the conduct of NCN and ANCR to come within a definition of exceptional circumstances or improper or overbearing action.

This is even more so with respect to ANCR who had the de jure conduct of this matter for a period of less than 21 days and had the de facto conduct of the matter for less than five days. [ 56 ] I am prepared to concede that there were problems with the manner in which NCN and ANCR discharged their duties but there was not, in my view, any deliberate attempt to avoid providing the information and there was no evidence of bad faith attributed to either of them.

This is not a case of an agency failing to provide any particulars on apprehension but a failure to provide sufficient particulars. [ 57 ] Furthermore, I have not been satisfied that there was any deliberate avoidance by NCN and ANCR to provide the information as the matter was being attended to and managed by counsel for them and the father. It was not until November 26, 2015, that the issue of insufficient particulars was clearly raised by the father’s counsel.

More complete particulars were provided shortly thereafter and the father abandoned his opposition to the apprehension. [ 58 ] I conclude my reasons by simply stating that I consider the award of costs in this case to be an overreaction or a misunderstanding of the true facts. There are certainly instances where an award of costs against an agency is justified. With respect, that is not the case here. JA