CITATION: R. v. FCS, 2015 ONSC 3345
COURT FILE NO.: CV-14-499851
DATE: 20150527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
B.R., by his litigation guardian T.R., M.R. and T.R.
Plaintiffs
– and –
1866977 Ontario Corp. o/a Family and Children’s Services, 17674 Ontario Corp. o/a Ontario Association of Children’s Aid Societies, Diana Steele, Alicia Dornan, Andrea Young, Josh Roy, Kingston Police Services Board, Detective Sean Bambrook, Staff Constable Jane Doe, Chief of Police Gilles M. Larochelle and Her Majesty the Queen in Right of Ontario
Defendant
Leigh Harrison-Wilson, for the Plaintiffs
Carole Jenkins, for FACS, OACAS and Amy Leamen, for the HMQ
HEARD: May 15, 2015
s.a.Q. akhtar j.
Introduction
[1] This motion centres on the question of whether a child protection agency owes a duty of care to foster parents of a child once in their care and now removed by that agency. The moving party, the defendants in the action, the Family and Children’s Services of Frontenac (”FCS”) seeks to strike out the adult plaintiffs’ (brought in their own right) Statement of Claim on the basis that the law in Canada does not recognize such a duty.
Factual Background
[2] The plaintiffs were foster parents to a child hereinafter referred to as “C”. In January 2012, the plaintiffs were made aware that C had made allegations of sexual assault against their biological son, B.R.. After B.R. had attended the police station and indicated that he wished to assert his right to remain silent, the plaintiffs received a call threatening the removal of C and other foster children in their residence if B.R. refused to give a statement to the police. After meeting with the FCS, the plaintiffs were advised that C had been interviewed regarding the allegations made and that C was being removed from their care. The removal occurred on March 7, 2012, and, on the same date, B.R. was charged with sexual assault. On September 24, 2012, FCS advised the plaintiffs that their foster home was to be closed immediately as a result of the sexual assault allegations made against B.R..
[3] Almost a year later on September 3, 2014, all charges against B.R. were withdrawn. The plaintiffs brought an action as litigation guardian for B.R. and in their own right against the FCS for negligence. The alleged negligent conduct included, amongst other items, falsely accusing B.R. of sexual assault, negligently relying on statements made by C, and failing to conduct a proper investigation into the allegations made by C.
The Test for Striking Out a Claim
[4] Rule 21.01(b) of the Rules of Civil Procedure provides as follows:
(1) A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
[5] No evidence is admissible on a Rule 21 motion and, for the purposes of the hearing, the motions judge is to assume all of the facts alleged in the Statement of Claim are true. The test, agreed upon by the parties, is whether it is plain and obvious that the Statement of Claim discloses no reasonable cause of action: see e.g. Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45.
[6] On a motion to strike out a pleading, the court must read the impugned paragraphs in a generous manner to avoid unfairly denying a plaintiff the benefit of a pleading in an action. In Imperial Tobacco, the Court made clear that a pleading should only be struck out if it has no reasonable chance of success. At para. 21 of that case, McLachlin C.J. noted that “the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed... The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.” Similarly, the Court of Appeal has noted that a motion to strike should not become the battleground for novel and complex issues to be decided prematurely: PDC 3 Limited Partnership v. Bregman + Hamann Architects (2001), 2001 CanLII 38745 (ON CA), 52 O.R. (3d) 533, [2001] O.J. No. 422 (C.A.).
Did the FCS owe a Duty of Care to the Plaintiffs?
[7] The plaintiffs in this case bring an action against FCS both in their own right and as litigation guardian of their son, B.R.. The narrow question on this motion is whether FCS owes a duty of care to the plaintiffs, acting as foster parents. If not, the defendant’s motion to strike the pleadings alleging that FCS is liable in negligence to the adult plaintiffs in their own right must succeed as there is no reasonable cause of action disclosed.
[8] In Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, the Supreme Court of Canada examined the scope of the duty of care owed by child protection agencies. The plaintiffs were the biological parents of a 14 year old girl, “D”, who was apprehended by the Halton Children’s Aid Society (“CAS”) and placed in a foster home after she had written a story at school detailing allegations that her parents had sexually and physically abused her. Her parents denied the allegations and police ultimately laid no criminal charges.
[9] Her parents, grandparents, and siblings subsequently issued a statement of claim alleging negligence by various government institutions including the CAS on the basis that D had been treated by the treatment centre as if she had been sexually assaulted. This negligent conduct, they argued, caused D not to return to her family and thereby deprived the family of their relationship with her.
[10] The Court struck out the family’s Statement of Claim on the basis that it disclosed no reasonable cause of action. The Court held that child protection agencies owed no duty of care to D’s parents or family. At para. 24, the Court reiterated the test for determining the existence of a duty of care set out in Kamloops (City) v. Nielson, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2, 10 D.L.R. (4th) 641, holding that such determination requires an examination of both “reasonable foreseeability and proximity.” Even if the examination of foreseeability and proximity leads to the conclusion that a duty of care should be imposed, courts must still consider “whether there are nonetheless additional policy reasons for not imposing the duty.” With respect to child protection agencies, the Court found that the required proximity did not exist and, even if it had, public policy dictated that child protection agencies should not hold a duty of care to anyone other than the child in their care. Not surprisingly, the defendants rely upon Syl Apps, and the series of cases following it (see e.g., D.C.M. v. York Regional Children’s Aid Society et al, 2011 ONSC 5635, [2011] O.J. No. 4354, aff’d 2012 ONCA 223, [2012] O.J. No. 1481) as a basis to strike out the plaintiffs’ Statement of Claim.
[11] The plaintiffs, on the other hand, seek to distinguish Syl Apps on the basis that that case involved biological parents rather than foster parents. They rely upon Lapansée c. Société de l’aide à l’enfance de Prescott-Russell (2006), 51 R.F.L. (6th) 365, [2006] O.J. No. 5231, a case in which the CAS shut down a family’s foster home after allegations of sexual abuse by one of the resident children; those allegations were later recanted. Roy J. held that, in acting in the manner in which they did, the CAS breached their prima facie duty of care to the family. It is noteworthy that in Lapansée, the defendant CAS actually conceded the existence of a prima facie duty of care: para. 41.
[12] The plaintiffs’ submit that there is a fundamental difference between a biological family and a family involved in foster care. In the former case, there will always be a potential for conflict with child protection agencies. Foster families, however, work with child protection agencies to ensure the best interests of the child are always met. The plaintiffs’ argue that, when conflict ensues within foster families, it is only fair that the child protection agency “weighs up” the competing interests of the two parties—foster family and child—in coming to any decisions.
[13] With all due respect, this argument is misconceived.
[14] I note that Lapansée was decided prior to Syl Apps, which expressly contradicts the conclusion reached in Lapansée. It is not, therefore, persuasive authority. There seems to be very little reason to distinguish between biological and foster parents in the context of a purported duty of care owed by child protection agencies. Indeed, the notion of “weighing up” interests appeared to be the result that the Court in Syl Apps specifically sought to avoid. At para. 64 of the judgment, Abella J. wrote:
Child protection work is difficult, painful and complex. Catering to a child’s best interests in this context means catering to a vulnerable group at its most vulnerable. Those who do it, do so knowing that protecting the child’s interests often means doing so at the expense of the rest of the family. Yet their statutory mandate is to treat the child’s interests as paramount. They must be free to execute this mandate to the fullest extent possible. The result they seek is to restore the child, not the family. Where the duties to the child have been performed in accordance with the statute, there is no ancillary duty to accommodate the family’s wish for a different result, a different result perhaps even the child protection worker had hoped for.
[15] The “weighing” that the plaintiffs feel is necessary would, in my view, have severe deleterious effects. What would happen, for example, if a child wished to leave a foster home but the foster family wished it to stay? Would a child protection agency be forced to delay a decision to “weigh” matters to decide which was the more desirable course of action? What if a child made a genuine but initially uncorroborated allegation of abuse against a foster family? Would the child protection agency be forced to leave the child in the family’s care—a potentially unsafe situation—until an investigation was complete or corroborating evidence came to light? Any delay caused by “weighing up” the competing interests could prove disastrous for the child in question.
[16] Finally, despite the plaintiff’s submissions that the status of foster families is not directly resolved by Syl Apps, I note that in Irish v. Children’s Aid Society of Durham Region, 2015 ONSC 1721, Lack J. also held that child protection agencies owed no duty of care to foster parents. I come to the same conclusion.
Conclusion
[17] The defendant’s motion is granted and the adult plaintiffs’ Statement of Claim (in their own right) is struck out against the FCS. The action is dismissed on that basis.
[18] In the interests of justice, costs are fixed in a sum agreed by the parties in the amount of $3,000.00 with 30 days to pay.
S.A.Q. Akhtar J.
Released: May 27, 2015
CITATION: R. v. FCS, 2015 ONSC 3345
COURT FILE NO.: CV-14-499851
DATE: 20150527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
B.R., by his litigation guardian T.R., M.R. and T.R.
Plaintiffs
– and –
1866977 Ontario Corp. o/a Family and Children’s Services, 17674 Ontario Corp. o/a Ontario Association of Children’s Aid Societies, Diana Steele, Alicia Dornan, Andrea Young, Josh Roy, Kingston Police Services Board, Detective Sean Bambrook, Staff Constable Jane Doe, Chief of Police Gilles M. Larochelle and Her Majesty the Queen in Right of Ontario
Defendant
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.