Being investigated by the Children’s Aid Society (“CAS”) can be an invasive and hurtful process, especially if that investigation is unfounded and results in the improper removal of children from a parent who maintains a loving caring relationship with their children.
Do parents who have been improperly investigated by the CAS have a right to sue for damages?
The leading case on this matter is the 2007 Supreme Court of Canada decision in D.(B.) v Children’s Aid Society of Halton (Region), 2007 SCC 38. In this decision the Court found that the immunity provisions of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“the Act”) provides qualified immunity to the CAS and its employees so long as the organization and its employee or employees acted in good faith in the execution or intended execution of their duties, or for an alleged neglect or default in the execution in good faith of the person’s duties.
Not only did the Court find legislative protection (absent a bad faith finding), but the Court also indicated there was no proximal relationship between the family of a child and those directed by a Court or legislated mandate to protect the interests of children. More simply put, there is no duty of care owed by the CAS to parents; the only duty of care owed by the CAS is to the children it has been legislatively mandated to protect. Since the CAS does not owe a duty to parents, it cannot be found negligent to parents in performing its investigations.
The majority of cases that have followed since this 2007 Supreme Court Decision have resulted in dismissals against the plaintiff parents, usually by successful motions for summary judgment brought by the CAS defendant.
There are some examples where the parent plaintiffs have held off the motions for summary judgment. Notably, a 2016 decision in T.D. v Highland Shores Children’s Aid, 2016 ONSC 1432. This decision was not a finding in favour of the plaintiff but was only a dismissal of the motion for summary judgment brought by the defendant CAS. Justice Quigley did not definitively state that the CAS owed a duty of care to the plaintiff parent but left it open to proceed to trial.
A subsequent 2016 case, F.(T.) v Galloway, 2016 ONSC 4252 also resulted in a dismissal of the defendant’s motion for summary judgment. In that decision Justice Bale found that the law was not settled and that there was a triable issue.
Since these 2016 motion decisions, several more decisions have been released which have all found that parents cannot bring an action for negligence against the CAS. The most recent decision goes so far as to say even actions grounded in bad faith cannot proceed since bad faith is not a stand alone cause of action.
In 2017 the Ontario Court of Appeal decision in W.A.G. v Family and Children’s Services Niagara , 2017 ONCA 861, resulted in the upholding of a dismissal of a plaintiff’s claim after a motion for summary judgment brought on behalf of the CAS. In that case the dismissal was upheld despite allegations of intentional infliction of mental suffering, negligence, and bad faith (punitive damages).
In that decision the court stated:
We see no error in the motion judge’s approach or the conclusion reached. Both in the lead up to and following apprehension of the children, the respondents’ duty of care was to the children and not the parents. We agree with the motion judge that in the circumstances of this case there could be no duty of care to the appellant because of the clear conflict that would arise when considering the respondents’ duties to the children.
A 2019 decision in S.H. v Children’s Aid Society of Haldimand-Norfolk, 2019 ONSC 848 also resulted in the dismissal of the plaintiff’s claim. Justice Broad struck the entirety of the plaintiff’s claim and in doing so relied upon and confirmed two previous cases:
In my view, the law is well settled that a child protection agency acting under the authority of the Child and Family Services Act, and its employees owe no duty of care to parents of a child which is the subject of a child protection proceeding (or other third parties), including in the course of an investigation, even where the claims include allegations of gross negligence, improper conduct or bad faith.
While there are likely considerations for extending immunity even regarding allegations of gross negligence and bad faith, there does not appear to be a legislated protection extending quite that far. Section 15(6) of the Act provides qualified immunity only so far as good faith execution or attempted execution of the duties. It will be up to legislators and the judiciary to decide if there should be some measure of the of accountability in situations of gross negligence or bad faith.
A more recent decision of Justice Wilson in C.R. v Her Majesty the Queen in Right of Ontario , 2019 ONSC 2734 found, “the law is clear and I find no duty of care owed by the [CAS] to the parents of children who are under investigation by the CAS. These claims cannot succeed and must be struck without leave to amend.”
Given the recent decisions on this issue it appears that parents who have no doubt suffered harm as a result of negligent investigations by the CAS may nevertheless be barred from bringing a negligence based claim against the CAS or its employees.
Please do not hesitate to contact me for more information on topics covered in this post.
Associate – Civil Litigation and Personal Injury Law Groups
Disclaimer: This article is provided as an information resource. This article should not be relied upon to make decisions and is not intended to replace advice from a qualified legal professional. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. Please note that this information is current only to the date of posting. The law is constantly changing and always evolving.