Costs were awarded against the Children’s Aid Society for improperly obtaining an ex-parte order in recent decision.
By: Philip Epstein
Costs against Children’s Aid Society for Improperly Obtaining Ex-parte Order
R. (C.) v. Alberta (Director of Child and Family Services), 59 R.F.L. (7th) 124 (Alta. Q.B.): Notwithstanding my comments in the Newsletter [Volume 2015-29] about Pereira (Litigation guardian of) v. Ontario, 2015 CarswellOnt 6838 (Ont. S.C.J.) there are cases where costs can be awarded against the Children’s Aid Society and this is one of them.
This was a case involving a severely handicapped child who suffered from significant brain damage at birth. The parents, doctors and the hospital all got into an extremely toxic fight about the proper care of the child. In the midst of all of this, the director of the Children’s Aid Society moved forward and obtained an ex-parte order for the apprehension of the child. The parents moved to set aside the ex-parte order, and the director agreed to setting aside the apprehension order and the ex-parte order. The parents sought their costs. The Court found that the director had acted prematurely, and did not present to the Court a fair appraisal of the facts. The director, through his counsel, took the position that the parents had been improperly interfering with the child’s care. Nothing could have been further from the truth. The Court found that the director had failed to properly investigate both sides of the situation and brought the apprehension motion without proper notice to the parents. While the Court was not prepared to find deceit on the part of the director, the Court did find the director was far too one-sided and failed in his duty to disclose all of the facts to the Court and give a fair and complete review of the situation. The director was ordered to pay costs of $11,000 demonstrating that while a Children’s Aid Society may be immune to a lawsuit for negligence, they may well be responsible for costs when their actions amount to improper conduct.