“The Ontario Court of Appeal in Children’s Aid Society of the Region of Peel v. L.M., 2022 ONCA 379, 72 R.F.L. (8th) 1, held the following about costs awards against child protection agencies:
[30] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, gives the court discretion to determine the costs of the proceeding. Here, the Family Law Rules applied on the motion.
[31] Under those Rules, the general presumption is that a successful party is entitled to its costs: r. 24(1). However, Children’s Aid Societies are treated distinctly from other parties in a family law proceeding. Section 24(2) provides that the presumption of costs to the successful party does not apply in a child protection case or to a party that is a government agency. At the same time, s. 24(3) empowers a court with discretion to award costs to or against a party that is a government agency, whether or not it is successful.
[32] The jurisprudence elaborates on the proper exercise of this discretion. Children’s Aid Societies are presumptively protected from costs awards in order to encourage them to act in the best interests of the child. As Chappel J. explained in Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679, at para. 13:
The special approach to costs claims against Children’s Aid Societies recognizes the extremely important and difficult task which those agencies are entrusted with, and the challenging judgment calls which child welfare professionals must make on a regular basis in carrying out their mandate to protect children. Child protection staff must be encouraged to err on the side of caution in favour of protecting children in situations where they have reasonable grounds to do so, without having the added burden whenever they are required to make difficult judgment calls of having to embark upon a taxing cost/benefit analysis as to whether they can financially afford to protect the child in question.
[33] Justice Chappel went on to summarize the general principles animating costs against a Children’s Aid Society, at para. 14:
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- Child protection agencies do not enjoy immunity from a costs award.
- However, the starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.
- The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.
- The high threshold of “bad faith” is not the standard by which to determine a claim for costs against a child protection agency.
- Costs will generally only be awarded against a Children’s Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.
- A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome.
- Important factors to consider in deciding whether costs against a Society are appropriate include the following:
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i. Has the Society conducted a thorough investigation of the issues in question?
ii. Has the Society remained open minded about possible versions of relevant events?
iii. Has the Society reassessed its position as more information became available?
IV. Has the Society been respectful of the rights and dignity of the children and parents involved in the case?
V. In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society’s efforts to diligently carry out its statutory mandate of protecting children.
[34] In making a costs decision, as in all family law decisions, the court must bear in mind the primary objective of ensuring the case is dealt with justly: Family Law Rules, s. 2(2). Rule 2(3) further elaborates. Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties, (b) saving expense and time, (c) dealing with the case in ways that are appropriate to its importance and complexity, and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.”