“Subrule 24(2) of the Family Law Rules, O. Reg. 114/99. (“Family Law Rules”) sets out that in a child protection case there is no presumption that the successful party is entitled to a costs order.
The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection. It should not be dissuaded from the pursuit of its statutory mandate by costs considerations: see: Children’s Aid Society of Ottawa- Carleton v. S. 2003 CanLII 88994 (ON SCDC), [2003] O.J. No. 945 (SCJ – Divisional Court).
Justice Chappel conducted a thorough review of the case law concerning costs claims against child protection agencies in Children’s Aid Society of Hamilton v. K.L., 2014 ONSC 3679 (CanLII), 2014 O.J. No. 2860 and set out the following principles:
a. Child protection agencies do not enjoy immunity from a costs award.
b. 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.
c. 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.
d. The high threshold of “bad faith” is not the standard by which to determine a claim for costs against a child protection agency.
e. 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.
f. 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.
g. Important factors to consider in deciding whether costs against a Society are appropriate include the following:
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.
A child protection agency should neither be rewarded nor punished by an order for costs, but rather it should be held accountable. See: Children’s Aid Society of Brant v. D.M.C. and J.C., 1997 CanLII 9575 (ON CJ), [1997] O.J. No. 3145 (OCJ).
The lens through which the society’s conduct is viewed is that of the properly informed, reasonable person, considering the society’s conduct and the prejudice caused to the child or parent by that conduct: see: Catholic Children’s Aid Society of Toronto v. S.V., 2000 O.J. No. 5866 (OCJ).
Once liability for costs is established in a child protection proceeding, the court must determine the appropriate amount of costs, having reference to the provisions of Rule 24: see: Children’s Aid Society of Halton v. J.S., supra; Children’s Aid Society of Hamilton v. K.L., supra.”
Children’s Aid Society of Ottawa v. J.K., 2019 ONSC 4231 (CanLII) at 39-44