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Epstein’s This Week in Family Law | Children’s Aid Society

Father attempted to sue the Children’s Aid Society of Ottawa in recent Ontario Superior Court of Justice case



Epstein’s This Week in Family Law



Philip Epstein

Suing the CAS

L. (A.) v. Children’s Aid Society of Ottawa, 2016 CarswellOnt 2675 (Ont. S.C.J.) - M. James J. A father whose children were apprehended wishes to sue the Children’s Aid Society of Ottawa [CAS]. The father, plaintiff, has delivered a fresh amended statement of claim which suffers from the fact that the father is now self-represented.

The essence of the plaintiff’s complaint is that the CAS moved in based on false accusations by the plaintiff’s wife’s mother, seized his son, and it took many months and much legal cost to recover his child.

The CAS moved to strike out the statement of claim on the basis that it did not disclose a cause of action because the CAS does not owe a duty of care to the plaintiff. See Syl Apps Secure Treatment Centre v. D. (B.), 2016 CarswellOnt 2675 (Ont. S.C.J.), Plummer v. Children’s Aid Society of Hamilton, 2011 CarswellOnt 6202 (Ont. S.C.J.) and B. (D.S.) v. Kenora Rainy River Child and Family Services, 2014 CarswellOnt 13525 (Ont. S.C.J.).

It is clear, in law, that the Children’s Aid Society does not owe a duty of care to the parents but rather the children. However, duty of care is an aspect of negligence law. This claim, as badly drafted as it is, still has elements of intentional wrong doing and bad faith in addition to negligence.

But then again, perhaps it doesn’t; see T. (D.) v. Highland Shores Children’s Aid, 2016 CarswellOnt 2879 (Ont. S.C.J.) on which I will comment in due course.

Section 15(6) of the Child and Family Services Act creates a statutory immunity for the Society or its employees for an act done in good faith, and section 15(6) is directed towards the protection of individuals not institutions, organizations, or corporations, and secondly, where allegations of bad faith arise, statutory immunity provisions may be inoperative.

For a recent case where the CAS and its employees are found liable for acts of bad faith see P. (J.) v. British Columbia (Director of Child, Family and Community Services), 64 R.F.L. (7th) 116 (B.C. S.C.).

This statement of claim is a confused jumble, but Justice James of the Ontario Superior Court of Justice recognizes that somewhere in this attempted pleading is an allegation of bad faith. Accordingly, the claim is struck out with leave to amend. For those aggrieved parents who think that the Children’s Aid Society acted precipitously or even negligently, they need to review J.P. v. British Columbia, and Tadman v. Highland Shores Children’s Aid, above, before even contemplating an action, so that they can understand the kind of conduct that might give rise to liability. It is an important principle that the duty of care of the Children’s Aid Society is to the child not the parents, but acts of bad faith by a Society or its employees are actionable.

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