“ In Children’s Aid Society of Hamilton v. L. (K.), 2014 ONSC 3679 (Ont. S.C.J.) (CanLII), [2014] O.J. No. 2860 (Ont. S.C.J.), Justice Deborah Chappel conducted a thorough review of the case law dealing with costs claims against child protection agencies, and set out the following general principles.
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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.
In Hastings Children’s Aid Society v. L. (J.,), 2012 ONCJ 362 (Ont. C.J.), Justice Elaine Deluzio wrote, “The essential test for the appropriateness of an award of costs against a Society is whether the Society should be perceived by the ordinary persons as having acted fairly.”
Children’s Aid Society of Toronto v. S.W., 2018 ONCJ 772 (CanLII) at 37-38