SUPREME COURT OF Nova Scotia
FAMILY DIVISION
Citation: Nova Scotia (Community Services) v. J.P., J.W., R.M.K., 2020 NSSC 290
Date: 20200903
Docket: No. 117939
Registry: Sydney
Between:
Nova Scotia (Community Services)
Applicant
v.
J.P., J.W., R.M.K.
Respondents
| Judge: |
The Honourable Justice Lee Anne MacLeod-Archer |
| Heard: |
September 3, 2020, in Sydney, Nova Scotia |
| Corrected Decision: |
The text of the original decision has been corrected according to the attached erratum dated August 20, 2020. |
| Written Release: |
October 19, 2020 |
| Counsel: |
Tara MacSween for the Applicant Jill Perry, QC for the Respondent J.P. Dianne Paquet for Respondent J.W. Steven Jamael for Respondent R.M.K. |
By the Court:
Background
[1] The Minister filed a protection application and affidavit in this proceeding on March 12, 2020. Child protection proceedings are governed by the deadlines set out in the Children and Family Services Act, S.N.S. 1990, c. 5, and Civil Procedure Rule 60A. Rules 60A.13(1) and (4) and 60A.16 (2) are relevant to this matter. They read:
60A.13 Prehearing conference
(1) A prehearing conference under Rule 26A - Conference must be held before a protection hearing and before a disposition hearing unless a judge directs otherwise.
...
(4) An agency must file an affidavit providing current relevant evidence no less than ten days before the day of the prehearing conference.
...
60A.16 Disposition hearing
...
(2) An agency in a proceeding in which the judge finds a child to be in need of protective services must file a notice of motion for a disposition order no later than ten days before the prehearing conference scheduled as a result of a finding that a child is in need of protective services and the agency must file an affidavit providing the current relevant evidence and the agency plan for the child’s care with the notice.
[2] Days are calculated under Rule 94.02 as business days, thus ten days equates to two calendar weeks.
[3] Interim orders were granted at the 5 and 30 day appearances. A protection order was granted after a docket appearance on June 22, 2020. At that time, in advance of the disposition hearing, a prehearing conference date was scheduled for August 5, 2020. The conference was set well before the deadline for the disposition hearing, to allow counsel to canvass their clients’ positions in advance. This also meant that if hearing time (beyond a docket) became necessary, there would be ample time to schedule it within the legislated timeline for completion of the disposition hearing.
[4] The Minister filed (by e-mail due to the pandemic) its motion for disposition order with supporting affidavit and plan at 1:50 p.m. on August 4, 2020. The prehearing conference was scheduled for the next morning at 10:30 a.m. This equates to less than 24 hours’ notice, and falls far short of even the abbreviated notice I permitted for filing, which was one calendar week.
[5] When the parties appeared at the prehearing conference (by phone), counsel for J.P. requested an adjournment. She had not been able to review the motion, affidavit or plan with her client, due to its late filing. She was therefore unable to get instructions. At the same time as she requested an adjournment of the conference, Ms. Perry advised that she wished to be heard on the issue of costs.
[6] Counsel for the Minister consented to the adjournment and acknowledged that the materials were filed late. Counsel for the other two parties did not object to the adjournment, which was granted. I permitted J.P.’s counsel to file a motion by correspondence seeking costs prior to the rescheduled conference date.
[7] The matter returned to the court docket for a prehearing conference on September 3, 2020. In the meantime, counsel for J.P. and the Minister filed their costs submissions. The other two parties took no position on the issue of costs.
[8] After hearing further submissions on September 3, 2020, I granted costs to N.S. Legal Aid, payable by the Minister in the amount of $250.00. I indicated that I would provide written reasons, which follow.
[9] The leading case on costs against a child welfare agency in Nova Scotia is Children’s Aid Society of Cape Breton-Victoria v. A.(L.L.), 2004 NSCA 146. Chipman, J.A. (speaking for the court) upheld a lower court’s exercise of discretion in refusing to order costs against the Children’s Aid Society. The Society had filed an application, but later discontinued it after making further inquiries and completing its investigation. The lower court found that the Society was exercising its mandate to investigate claims of child abuse, and was not acting in bad faith in doing so.
[10] Chipman, J.A. stated:
5 A decision to award costs is discretionary, and will not be interfered with by this Court unless wrong principles of law have been applied or the decision is so clearly wrong as to amount to a manifest injustice. See Founders Square Ltd. v. Coopers & Lybrand (1999), 179 N.S.R. (2d) 375 (N.S. C.A.) at para. 46; Conrad v. Snair (1996), 150 N.S.R. (2d) 214 (N.S. C.A.) at p. 216; Exco Corp. v. Nova Scotia Savings & Loan Co. (1983), 59 N.S.R. (2d) 331 (N.S. C.A.).
6 In particular, in the context of child welfare proceedings, costs are not generally awarded against an agency which takes proceedings that are not successful. In M. Orkin, The Law of Costs, 2nd ed. (looseleaf) (Aurora, Ontario; Canada Law Ltd., 2003) the author discusses costs in child welfare proceedings at pp. 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 while not grossly negligent, performed below a reasonable level and prolonged the litigation; 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 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.
[11] The Court of Appeal in Family and Children’s Services of Cumberland County v. M.(D.M.), 2006 NSCA 75, re-stated the test for costs against a child protection agency, with Roscoe, J.A. noting that although the agency’s appeal was unsuccessful, that in itself did not amount to the kind of exceptional circumstances that would result in a costs award against it. She stated:
38 ... there is nothing before us to suggest that it acted improperly or unfairly in pursuing its right to appeal...
[12] The Nova Scotia Court of Appeal does not appear to have dealt with costs against a child protection agency as it relates to procedural issues. However, courts across the country have done so. In Children’s Aid Society of Algoma v. R.M., 2001 CarswellOnt 2204 (ONCJ), the court expressly dealt with this distinction and stated:
27 ... this old case law, as it is referred to, visualized the society as a special litigant mainly because of the obligations imposed by its mandate under the child protection statute and almost immune from an adverse determination on costs. The exception of this "almost immunity" arose only in exceptional circumstances and these were generally connected in some way to the conduct of the society that was so improper as to be indefensible.
...
29 In Re M. (P.) (1980), 16 R.F.L. (2d) 200, 3 Fam. L. Rev. 213 (P.E.I. S.C.), the Supreme Court of Prince Edward Island (Family Division) made the comment:
When the Director [of Child Welfare] comes to court, he does so as any litigant without immunity from financial consequences.
30 The more current view of the law, as urged by counsel for Ms. Barbara B. and Mr. Brian B., considers a society involved as a litigant in the court, perhaps in a somewhat different role than in classical civil litigation but nonetheless still a litigant and still subject to virtually all of the strictures that bind any party in litigation including the consequences of costs.
31 Justice J. Edward Eberle of the Ontario High Court, commenting in Children's Aid Society of Hamilton-Wentworth(Regional Municipality) v. M. (P.) (1988), 17 R.F.L. (3d) 46, [1988] O.J. No. 1584 (Ont. H.C.), ... any predisposition to award costs to or to insulate any litigant from payment of costs because of the status of such litigant should be discouraged.
32 He endorsed a more functional approach to the question of costs and looked to reasonableness and fairness of conduct such that would expedite rather than prolong litigation.
...
38 ... a more current view of the principles underlying an award of costs can co-exist with many of the earlier decisions; they are not necessarily contradictory.
[13] Kukurin, J. went on to say that:
82 ... the more appropriate view of costs is in relation to the goal of accountability. ...
83 However in child protection cases, particularly when considering costs against a society, punishment should rarely if ever be a motivator. But accountability certainly may. Realistically, there is no other sanction available judicially against a society that conducts itself improperly except costs. And on the other side, there is the consideration not so much of reward but more for compensation for expenses incurred in the case.
84 Accountability ties into conduct. In this case, the conduct that is of greatest concern is that conduct engaged in during the course of the litigation. Prior conduct has some consideration, but not to the degree of that during the proceeding itself.
...
107 In summary, the society is historically treated differently than other litigants. However, that treatment can be different where the society steps beyond its usual boundaries or where it conducts itself in some indefensible way, or in a way where it would be perceived by ordinary persons as having acted unfairly. It is not immune from the consequence of litigation and it is not necessary that the society must have acted in bad faith.
108 A society should neither be rewarded or punished by costs but should be held accountable. That accountability is in the manner in which a society investigates its case and presents it to the court and these are to be measured against the background of the statutory requirements of the Child and Family Services Act. That accountability can be expressed in an award of costs.
[emphasis added]
[14] In that case, the Society failed to notify appropriate parties, and failed to disclose relevant information relating to the plan of care, which had the effect of extending the litigation. The Court ordered costs of $77,000 against the Society, predominantly for these failings and the resulting length of the trial.
[15] Children’s Aid Society of Hamilton-Wentworth v R.(S.), 2003 CarswellOnt 1241 (ONSCJ) (leave to appeal refused 2003 CarswellOnt 2952) was a complex case involving 18 witnesses, and 11 experts. It took over ten weeks to complete the trial. In a previous decision, the court had ruled in favour of the mother, ordering the child be returned to her care.
[16] In its costs decision, the Court held that costs were appropriate for the Society’s failure to respect timelines, resulting in added costs to the mother. The Court stated:
20 In the case at bar, the mother has submitted for my review procedural failings by the children's aid society. The children's aid society, like any other litigant, must be censured for these failings. I find that the children's aid society did not comply with orders of this court with respect to timelines, which resulted in extra costs to the mother before trial and during trial. The children's aid society shall pay for any extra costs resulting from its non-compliance since I also find that the mother did not act unreasonably to reduce those costs as per subrule 24(4).
[17] Further, in Children’s Aid Society of Hamilton-Wentworth v AF, [2001] OJ No. 119 (ONSCJ), the Children’s Aid Society presented two Motions on the first day of trial: one to adjourn the trial until its preferred counsel was available, and the other seeking to have the mother’s counsel removed. Both motions were dismissed. The Society was ordered to pay costs to the mother for its “unreasonable behaviour”.
[18] In W.(K.) v. Alberta (Director of Child Welfare), 2006 ABQB 778 the court agreed with the general principle that child protection agencies are not immune from a costs award, though such awards should only be granted in “special and unusual circumstances”. Justice Coutu went on to consider the Ontario cases and concluded that Ontario’s test of fairness and accountability is much the same as Alberta’s test.
[19] In Prince Edward Island (Minister of Health and Wellness) v. Murphy, 2016 PESC 9, Justice Key thoroughly reviewed the caselaw on costs in child protection cases and stated:
[62] The general principle which can be drawn from the case law, and in particular case law involving child protection is that a government agency acting under statutory compulsion may have costs awarded against it in exceptional circumstances and where the general public would perceive that the agency acted in a “patently unfair and indefensible manner”. (Para. 23, Applicant’s submission on costs)
[63] As O’Connell, J., stated at para. 64 of Children’s Aid Society of Halton Region v. A.R., 2011 ONCJ 6810:
[64] The case law regarding costs against a children’s aid society demonstrates that a society’s conduct need not amount to bad faith in order to attract a costs award. However, there must be exceptional circumstances of unreasonable or unfair behaviour. The reason for this is that a society must not be penalized in carrying out its statutory mandate to protect children. ...
[64] In Winnipeg Child and Family Services v. A.M.H., 2002 Canlii 53223 (MBCA), Huband, J.A., stated:
[11] It is of vital importance that the potential impact of an order of costs should not deflect the Agency from fulfilling its duty to protect children ...
[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, 2nd ed. (Aurora: Canada Law Book Inc., 2001) at 2-90 and 2-91:
In wardship proceedings ... 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 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.
Further at para. 19 of the A.M.H. decision, Huband, J.A., stated:
[19] ...In my view, the cost of litigation, by itself, does not constitute exceptional circumstances so as to justify an award of costs against the Agency.
[65] Finally, in support of the Applicant’s position against an award of costs, he provided the case of Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679. Once again, this was a case of child protection, but the Court believes the general principles in relation to an award of costs against the Minister of Health and its designate Adult Protection, in this instance, apply.
[66] At para. 13, Chappel, J., states:
[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.
[67] Chappel, J., sets out the principles in relation to a claim for costs advanced against a child protection agency:
[14] The following general principles apply when a claim is advanced for costs against a child protection agency:
1. Child protection agencies do not enjoy immunity from a costs award.
2. 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.
3. 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.
4. The high threshold of “bad faith” is not the standard by which to determine a claim for costs against a child protection agency.
5. 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.
6. 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.
7. 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.
[20] Like other child protection agencies or ministries across the country, the Minister of Community Services in Nova Scotia has a statutory mandate to protect children from harm. Its child protection social workers are given broad powers of investigation, and having determined that a child is at risk of harm, they are empowered to take children into care. Routine costs awards against the Minister could impede that mandate.
[21] However, the Minister must act fairly, and in good faith, when it files and prosecutes child protection applications. This includes compliance with the Civil Procedure Rules.
[22] Costs in civil proceedings (which includes child protection) in Nova Scotia are governed by Civil Procedure Rule 77. Rule 77.02 grants the court discretion to award costs “at any time” if the judge is satisfied it “will do justice between the parties”.
[23] The Nova Scotia Court of Appeal has recognized that prejudice caused by an adjournment may be compensated by costs where appropriate (see Darlington v. Moore, 2012 NSCA 68).
[24] In her Motion for costs, Legal Aid counsel highlighted “two levels of concern: 1) prejudice to the Respondent J.P. based on particulars of the case at bar; and 2) prejudice to respondents generally in view of the chronicity of the issues and their systemic impact.”
[25] In relation to the first concern, counsel says that as a result of difficulties in obtaining information from the Minister, she was “unable to provide timely advice” to her client. She also says that her client “did not have a copy of the Order in effect”, leaving her to cancel scheduled appointments.
[26] On the second concern raised in her Motion, counsel states that “Late filing of pleadings, late filing of court orders, and late or non-existent provision of case notes has been an issue of concern for respondents’ counsel for years.”
[27] In response to these arguments, counsel for the Minister points out that J.P.’s new counsel is not fully compliant with the Rules either. After J.P.’s former counsel was removed, Ms. Perry did not file a notice of new counsel in accordance with Rule 33.06. The first time that J.P.’s new counsel appeared on her behalf was at the Prehearing conference (by phone) on August 5, 2020. That was the same day that the adjournment was sought, and when the issue of costs was first raised.
[28] The Minister is correct that a notice of new counsel should have been filed, especially where Ms. Perry only advised the Minister several weeks before the prehearing conference that she “may” be retained. She did not confirm her retainer. Despite this, when Ms. Perry requested that file materials be forwarded to her, the Minister complied, even though some of these documents had already been served on J.P. or her former counsel, and were available through other sources.
[29] Apparently, that courtesy will no longer be offered, as the Minister has since taken the position that a notice of new counsel (as per Rule 33) must be filed and forwarded to it, before its file materials will be shared in future. That is a policy choice of the Minister and I need not comment for purposes of this decision, except to say that in the context of this file, had the Minister been unable to send the documents by e-mail to J.P.’s new counsel, service on J.P. personally would have been necessary. Given the late filing, service likely wouldn’t have been effected before the prehearing conference, so an adjournment would still have been necessary.
[30] I accept Ms. Perry’s argument that the late filings in this matter have negatively impacted her ability to provide timely advice to her client and obtain informed instructions. The original application was filed on March 12, 2020 accompanied by a 79 page (368 paragraph) affidavit. The 5 day interim hearing was scheduled for a docket appearance on Monday, March 16, 2020. The child was not taken into care, so the Minister had some flexibility when seeking court dates. A filing on March 12 did not leave sufficient time to serve the parties with notice under Rule 39. However, as is almost standard, a waiver was requested and granted.
[31] The problems continued: following the 5 day interim hearing on March 16, the Minister failed to file an order reflecting the Court’s decision until April 7, 2020. The interim order from the 30 day appearance on April 7 wasn’t filed until May 8. And the updated affidavit due under Rule 60A.13 for the protection hearing on June 9 wasn’t filed until June 4 at 4:57 pm (meaning it was deemed to be filed June 5, 2020 (per Rule 94.02 (3))
[32] The late filing on August 4 demonstrates a pattern which is evident in CFSA proceedings in this district generally. Late filings in child protection proceedings have become the norm. Respondents’ counsel are often left scrambling to review the documents with their clients, sometimes just minutes before the court appearance.
[33] In addition, the Minister’s orders are often filed late; in some cases the order isn’t filed until immediately prior to the next docket date (up to 3 months later). The vast majority of files scheduled for appearance days to deal with overdue orders, belong to the Minister. In these circumstances, one might ask: without a timely court order, how are parties to know what their legal obligations are ?
[34] Finally, late filings compound the problem of a busy court docket that is already dominated by child protection proceedings. In addition to duplicate docket appearances due to adjournment requests, CFSA proceedings take priority over other family files scheduled for hearing, because they involve statutory time limits. So when a party contests the Minister’s position in a CFSA proceeding, civil family files are “bumped” from the docket to obtain trial time. Given the number of CFSA trials held in this district, this has become a regular occurrence.
[35] This priority status may have led to complacency on the part of the Minister, as courts are generally unwilling to dismiss a child protection matter for lack of procedural compliance. That being said, procedural fairness is an important component of any court proceeding. The Civil Procedure Rules lay out the processes that must be followed, in order to ensure that parties receive fair notice of all steps taken by the other party to the litigation.
[36] Much has been written and said about access to justice in recent years. The cost of litigation is rising, and the complexity of matters has increased, leading to longer trials and heavier court dockets. When materials are filed late, leading to an adjournment and the use of a second (and sometimes a third) time slot on an already busy court docket, it disadvantages everybody in the system. All counsel have to prepare and appear a second time, which increases Legal Aid’s costs and reduces its ability to respond to other client files. As the Court of Appeal stated in Mosher v. Gosby, 2016 NSCA 10:
[17]... The Nova Scotia Legal Aid Commission has limited resources, which they use to help as many litigants as possible. These limited resources should not have to be wasted…..
[38] In the Annotated Children and Family Services Act (2 ed.) author P. McVey states that: “The Agency Plan for the Child’s Care is the most important document a social worker will prepare in the course of a child protection proceeding.” The Minister’s plan contains a roadmap for parents to follow, as they navigate their way through a complex and frightening process. Parties are entitled to legal representation throughout the process, but counsel are limited in their efforts to provide timely advice when they are rushed in reviewing documents received from the Minister at the last minute. That is exactly why the Civil Procedure Rules contain filing deadlines.
[39] Finally, as counsel for J.P. noted during her submissions, it is not clear where fault lies for the delay at the Minister’s end. The filing delays cannot be attributed to the Covid-19 state of emergency, as they are chronic and long-standing. It may be that institutional complacency has set in, because courts have been reluctant to order costs in child protection proceedings in the past. Or it may be that more resources are required, in order for the department to meet its obligations under the legislation and the Civil Procedure Rules. Either way, the problem must be addressed.
[40] The Court of Appeal has confirmed that costs may be awarded to Nova Scotia Legal Aid (see Mosher (supra) and Cunningham v Cunningham, 2018 NSCA 63) in appropriate cases. Rule 77.03 (5) confirms this. I therefore direct that the Minister pay costs to Nova Scotia Legal Aid in the amount of $250.00 for the late filing and unnecessary adjournment. Ms. Perry will prepare the order.
MacLeod-Archer, J
SUPREME COURT OF Nova Scotia
FAMILY DIVISION
Citation: Nova Scotia (Community Services) v. J.P., J.W., R.M.K.,
2020 NSSC 290
Date: 20200903
Docket: No. 117939
Registry: Sydney
Between:
The Minister of Community Services
Applicant
v.
J.P., J.W., R.M.K.
Respondents
ERRATUM
| Judge: |
The Honourable Justice Lee Anne MacLeod-Archer |
| Heard: |
September 3, 2020 |
| Written Release: |
October 19, 2020 |
| Erratum Date: Counsel: |
October 20, 2020
Tara MacSween for the Applicant Jill Perry, QC for the Respondent J.P. Dianne Paquet for Respondent J.W. Steven Jamael for Respondent R.M.K. |
Erratum:
At page 18, paragraph 37 should read as follows:
[41] It seems trite to say it, but in child protection proceedings, documents are not filed merely for the sake of filing them. Filing isn’t the goal. The goal is to allow parties, whose lives (and whose children’s lives) have been impacted by the Minister’s involvement a full opportunity to review the Minister’s allegations, intended evidence, and plan going forward. Almost every aspect of a parent’s life comes under scrutiny in child protection proceedings, and there are few other litigation processes more intrusive. It is therefore imperative that the parties know the Minister’s plan and what evidence is being advanced to support it, before they are required to answer to it.