Estée Garfin

This appeal concerned the liability of Children's Aid Societies (CAS) and the Ontario government for damages arising from flawed hair follicle drug and alcohol test results from the Motherisk Drug Testing Laboratory (MDTL) used in child protection proceedings.

Family members (parents and siblings) of children apprehended by CASs sued for negligence, negligent investigation/supervision, intentional infliction of mental distress, bad faith, breach of fiduciary duty, misfeasance in public office, and Charter breaches.

The motions judge dismissed these claims, finding that CASs and Ontario did not owe a private law duty of care to parents or family members, as their primary duty is to the child's best interests, creating an untenable conflict of interest.

The Court of Appeal upheld the motions judge's decision, affirming that the CAS's duty is solely to the child, and Ontario's duties are general public duties, not private law duties to individuals in child protection matters or related to laboratory oversight.

The court also rejected claims of bad faith and Charter breaches as being disguised negligence claims, and dismissed claims for breach of fiduciary duty and s. 35(1) of the Constitution Act, 1982, finding these duties are owed to the Indigenous child, not the Indigenous parent.

In a group of six child protection appeals, the appellant J.B. brought a motion to reconstitute the panel, seeking to replace one of the judges due to her involvement in a prior unanimous decision that had reinstated a no-access order against J.B. The appellant argued for a reasonable apprehension of bias.

The Court of Appeal denied the motion, reaffirming the strong presumption of judicial impartiality and the high burden on the party alleging bias.

The court held that a judge's prior ruling against a party on a legal issue in a different case does not create a reasonable apprehension of bias for a new case involving different legal issues, even if the parties are the same.

A temporary care and custody motion under Part III of the Child and Family Services Act concerning two children apprehended by the Children's Aid Society of Toronto.

The respondent mother sought the return of the younger child to her care under a supervision order.

The court applied the two-part test from section 51(3) of the Act and found that the society established reasonable grounds to believe the child would likely suffer harm if returned to the mother's care, and that the child could not be adequately protected by supervision terms alone.

The court ordered the child remain in the society's temporary care with restricted access provisions.

This is a child protection status review application involving a two-year-old child with a complex history of multiple placements and three separate child protection agencies.

The mother brought a motion for return of the child to her care or increased access.

The paternal great-aunt brought motions for party status and access.

The court dismissed the mother's motions, finding no material change in circumstances warranting modification of the temporary care order.

The court granted the paternal great-aunt party status and access, finding her plan merited consideration as an alternative placement option.