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CHILD PROTECTION - Protective agencies and institutions - Types - Children’s aid societies - Apprehension of child - Practice and procedure - General principles - Costs - Considerations

Friday, February 02, 2018 @ 7:44 AM  

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Appeals by two child welfare agencies, Child and Family Services All Nations Coordinated Response Network (ANCR) and Nisichawayasihk Cree Nation Family and Community Services (NCN), from a costs award made in favour of the respondent father. The costs order had been made in the context of a warrantless apprehension of the father’s two children born in 2007 and 2008. The father had initially moved to challenge the apprehension, but abandoned the challenge after he received full particulars of the grounds of apprehension. However, the father had maintained his request for costs against the agencies for their collective failure to provide particulars in a timely fashion. The motion judge had found the agencies breached their obligation to provide timely written disclosure to the father of the grounds of apprehension of his children and also found that, on the facts of the case, the general rule against costs awards against child welfare agencies did not apply. The motion judge ordered costs of $500 against ANCR and costs of $1,500 against NCN.

HELD: Appeals dismissed. The leading case in Manitoba in respect of costs awards against child agencies was the AMH decision. In that case, the Court ruled that costs should not be awarded against child welfare agencies except in exceptional circumstances. The motion judge appropriately noted valid policy reasons for the rarity of costs orders against child welfare agencies, but also properly found that the circumstances of the current case could be distinguished from the AMH case in that it was not the conduct of the agencies in determining whether the children were in need of protection that was in issue, but rather the conduct of the agencies in the procedural steps that followed. The motion judge did not err in finding that the agencies breached their obligations under the Child and Family Services Act (Act) to provide timely written particulars to the father. At a minimum, particulars were required to inform the parents of the case against them. The motion judge did not err in finding that the particulars were insufficient and that the agencies were in breach of section 30(1) of the Act. The fundamental problem with the initial particulars provided by ANCR was that they contained no grounds of apprehension in respect of the father. In fact, the particulars read as though the children had been apprehended from their mother. NCN failed to rectify this for a considerable period of time. On any measure, the initial particulars and the further particulars were completely inadequate. The motion judge distinguished the facts of the case from the general rule regarding costs set out in the AMH decision on a principled basis. His reasoning was supported by Ontario jurisprudence that dealt with an analogous costs regime. The failure to provide timely written particulars could, in some cases, amount to exceptional circumstances warranting a costs award against an agency. The motion judge did not err in principle and his decision to award costs the agencies was not plainly wrong.

Nisichawayashik Cree Nation Family v. J.G., [2018] M.J. No. 1, Manitoba Court of Appeal, M.A. Monnin, D.M. Cameron and J.A. Pfuetzner JJ.A. January 8, 2018. Digest No. TLD-January292018009