COURT FILE NO.: CV-17-71881

DATE: 2022/02/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

D.A.

Plaintiff

– and –

CHILDREN’S AID SOCIETY OF OTTAWA

Defendant

James Zibarras and Stephanie Tassopoulos, for the Plaintiff

Giovanna Asaro, for the Defendant

HEARD: By videoconference on January 13, 2022.

ReasonS for DECISION

Parfett J.

[1] The Defendant, the Children’s Aid Society of Ottawa (CAS), requests that the action brought by the Plaintiff, D.A., be struck pursuant to R. 21.01(1)(b), R. 21.01(3)(d) or R. 25.11(c) of the Rules of Civil Procedure.[^1] The Defendant alleges the action is an abuse of process because it is an improper attempt to relitigate previous proceedings in the Superior Court of Justice, Family Division and/or an impermissible collateral attack on the orders of that Court. Alternatively, the Defendant contends the action discloses no reasonable cause of action.

BACKGROUND

[2] On June 8, 2008, L.L. was found dead in the family’s home. She had collapsed during a physical argument with her husband, the Plaintiff. After an investigation by police, the Plaintiff was arrested and charged with murder. The matter went to trial in October 2010 and the Plaintiff was convicted of second-degree murder. The Court of Appeal overturned the conviction and on December 19, 2014, after a re-trial, the Plaintiff was found not guilty.

[3] On June 8, 2008, the children of the marriage, N.L. and T.L were apprehended by the Children’s Aid Society. They were found to be in need of protection on the basis that they were witnesses to domestic violence, their mother was dead, and their father had been charged with her murder. The children were made Society wards while the CAS evaluated various kinship plans that were put forward by D.A. and members of his family. Ultimately, a total of nine kinship plans were assessed by the CAS. None of the plans were found by the CAS to be viable. On December 16, 2010, after an unopposed summary judgment motion, the children were made Crown wards for the purpose of adoption. The children were adopted on April 24, 2015.

[4] The Plaintiff filed a Statement of Claim on May 9, 2017 seeking damages on the basis that the CAS:

• Prejudged D.A.’s guilt in the criminal proceeding;

• Improperly acted as an agent of the police and gathered evidence against him for the police;

• Improperly retained an unqualified psychologist to provide therapy to the children;

• Failed to base the custody and access arrangements on the best interests of the children and improperly imposed access conditions on D.A. and his family;

• Failed to give adequate consideration to the proposed plans of care before finding the plans not viable; and,

• Acted with bias, bad faith, and intentional and/or negligent discharge of its statutory duties by failing to provide D.A. with notice of the proceedings or by failing to bring a status review application and by continuing with the adoption process after D.A.’s conviction was overturned.

ISSUES

[5] Is the Plaintiff’s action an abuse of process because it is an attempt to relitigate issues that were dealt with by the Family Court and/or because it is a collateral attack on orders previously made by the Family Court?

[6] Does the Plaintiff’s action disclose no reasonable cause of action in that the CAS owes no duty of care to the parent at any stage of a protection proceeding?

[7] Do the Plaintiff’s allegations of breaches of the Charter of Rights and Freedoms[^2] fail to disclose a reasonable cause of action?

[8] Do the Plaintiff’s allegations of negligent misfeasance in public office, abuse of power, breach of statutory duty and bad faith disclose no reasonable cause of action as they are not independent causes of action?

ANALYSIS

1. Abuse of process

[9] A Defendant may move under R. 21.01(3)(d) to have an action dismissed on the basis it is an abuse of process. In addition, pursuant to R. 25.11(c), the Court may strike out a pleading on the basis it is an abuse of process.

[10] The Defendant alleges in the present motion that the action is an abuse of process for two reasons; first, that it is an attempt to relitigate matters that were before the Family Court and second, that it is a collateral attack on orders made by the Family Court.

[11] The Plaintiff argues that the matters he has raised in the Statement of Claim were never the subject of findings in the Family Court. Furthermore, he does not want to disturb the orders that were made by the Family Court and he accepts that his children have been adopted. Rather, it is the process followed by the CAS from the apprehension to the adoption to which he objects.

[12] The doctrine of abuse of process is used to preclude litigation that violates the principles of economy, consistency, finality, and the integrity of the administration of justice.[^3] It is also used to prevent litigants from circumventing unfavourable court decisions. As noted in Garland v. Consumers' Gas Co.,

The doctrine of collateral attack prevents a party from undermining previous orders issued by a court or administrative tribunal….Generally, it is invoked where the party is attempting to challenge the validity of a binding order in the wrong forum, in the sense that the validity of the order comes into question in separate proceedings when that party has not used the direct attack procedures that were open to it (ie appeal or judicial review).[^4]

[13] Parties are also not permitted to relitigate issues that have been dealt with previously in court. The grounds underlying that policy are the following:

The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely to preserve the Courts’ and the litigants’ resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice.[^5]

[14] It has been noted in the case law that motions pursuant to R. 21.01 and 25.11 are designed to permit an expeditious determination of claims that cannot succeed. However, ‘as the exercise of the power…denies a litigant a full trial of the merits of the claim, it must be exercised only in the clearest of cases. Claims that are doubtful in law or factually weak should not be foreclosed.’[^6]

[15] In Wernikowski, the Court of Appeal held that a lawyer could be sued in negligence even though doing so would result in the relitigation of issues decided in the criminal litigation. The Court held that,

There is no per se rule that negligence actions against lawyers that involve a relitigation of issues decided in a previous proceeding are an abuse of process. The mere fact that the negligence action will involve the relitigation of issues finally decided in prior proceedings will not, standing alone, warrant the striking of the claim as an abuse of process.[^7]

[16] The Court then goes on to add that,

Actions brought for an improper motive (eg to harass complainants), actions brought where the lawyer’s competence was unsuccessfully litigated by the plaintiff during the criminal proceedings, actions brought after a considered decision was made not to litigate the lawyer’s competence in the context of the criminal proceedings, or actions brought before the plaintiff had exhausted all remedies in the criminal process could constitute an abuse of process.[^8]

[17] Similarly, the British Columbia Court of Appeal agreed that a negligence action against Canada Revenue Agency employees could proceed in circumstances where the Tax Court orders and assessments were not being challenged.[^9]

[18] In the present case, the Plaintiff made many of the same allegations in the protection proceedings as he is making in this action. Specifically, that:

• The Ottawa C.A.S. was systematically alienating the children from him and his family by keeping the children away from extended family and him;

• The Ottawa C.A.S. was improperly evaluating extended family caregivers as it wanted to impose values outside the children’s cultural background onto the children which amounted to “ethnic cleansing” contrary to Canadian multiculturalism values;

• The Ottawa C.A.S. had already reached a verdict of guilty in his case, although the criminal proceedings had not been completed, and would do whatever was in their power to keep he and his family away from the children;

• The Ottawa C.A.S. was abusing its power and was a “parent alienator”;

• The counsellor providing counselling to the children was not a recognized psychologist and was a “new age guru” with no qualifications to opine on whether or not he should have access to his children;

• Ottawa C.A.S. workers were acting as agents of the Crown attorney and the police, and were not guided by what was in the best interests of the children, but rather by the criminal proceeding against him, and were therefore in a conflict of interest;

• The Ottawa C.A.S.’ strategy was to alienate the children from him; and,

• The Ottawa C.A.S. was being secretive and manipulative.[^10]

[19] However, it does not appear from the materials filed by the parties that these issues were ever litigated. There were several court orders issued but they were granted on consent of the parties. Consequently, the Plaintiff never opposed the orders when they were made. To the contrary, he agreed to those orders. The only order that was not issued on consent was the final order making the children Crown wards for the purpose of adoption. However, that motion was unopposed. Consequently, there were no findings made in relation to the Plaintiff’s allegations. On the other hand, the Plaintiff did not appeal the final order.

[20] It is worth noting at this stage that the action brought by the Plaintiff demonstrates a misunderstanding of the relationship between the criminal courts and the family court in relation to child protection proceedings. The two processes run parallel to one another and intersect only in a minimal fashion. The criminal court and family court have different objectives and different procedures. The intersection of the two processes occurs primarily in the domain of release conditions.

[21] In the present case, the Plaintiff was released on conditions. His children had witnessed the physical altercation that led to their mother’s death. Consequently, they were Crown witnesses. The criminal court initially required there be no contact between the Plaintiff and his children. Later that condition was amended to provide that any contact could only occur pursuant to a Family Court order.[^11]

[22] The CAS is required by the Child and Family Services Act[^12] (CFSA) to act in the best interests of children.[^13] The duties of a children’s aid society are to:

• Investigate allegations or evidence that children may be in need of protection;

• Protect children where necessary;

• Provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;

• Provide care for children assigned or committed to its care;

• Supervise children assigned to it supervision;

• Place children for adoption; and,

• Perform any other duties given to it by legislation.[^14]

[23] Once a child is found to be in need of protection, s. 57 of the CFSA sets out the orders that the court can make, which include a supervision order, a society wardship order or Crown wardship order.

[24] In the present case, the Plaintiff did not oppose the finding that his children were in need of protection.[^15]

[25] As noted earlier, the CAS investigated nine kinship applications before filing a summary judgment motion requesting the children be made Crown wards for the purpose of adoption. That motion was also unopposed by the Plaintiff. It was not appealed by the Plaintiff.

[26] Once a child is made a Crown ward, s. 63(2) of the CFSA provides that the CAS ‘has the rights and responsibilities of a parent for the purpose of the child’s care, custody and control’. Furthermore, the CAS is required to assist a child who is a Crown ward to develop a positive, secure and enduring relationship within a family through one of three procedures, including adoption.[^16]

[27] Section 151(4) of the CFSA states,

No person,

(c) who is a parent of a Crown ward who is placed for adoption,

is entitled to receive notice of an application under section 146.

[28] A status review application can be brought by the CAS only in relation to a child who is under the supervision of the Society or the subject of a Society wardship order.[^17] The CFSA does not provide for a status review application to be brought in relation to a Crown ward.

[29] The Plaintiff pleads in the statement of claim that the CAS acted improperly in their investigation and conduct of both the child protection matter and the adoption proceeding.

[30] However, based on s. 63(1) of the CFSA, once the children were made Crown wards, the CAS became the parent. Therefore, the Plaintiff lost his parental rights when his children were made Crown wards. Furthermore, s. 151(4) of the CFSA indicates that the Plaintiff was not entitled to notice of the adoption nor was the CAS required to bring a status review application when they received notice that the conviction had been overturned.

[31] The Plaintiff insists that he is not challenging the validity of the orders made or the adoption. However, that fact creates a problem for the Plaintiff. If the orders are valid then the CAS’ actions were done pursuant to statute and their conduct was, by definition, appropriate. The Plaintiff cannot challenge the CAS’ actions without challenging the validity of either the orders or the legislation.

[32] In short, the Plaintiff is trying to do indirectly what he failed to do directly. The proper procedure for the Plaintiff to have followed was first, to contest the summary judgment motion and if that failed, to appeal the decision. The Plaintiff chose not to follow either route.

[33] Although the Plaintiff argues that he is not contesting the validity of the court orders, he is in fact doing so. He cannot argue that the CAS did not act properly in failing to provide notice of the adoption or by failing to bring a status review application without questioning the validity of the orders that led to the adoption.

[34] Consequently, this action is a collateral attack on the validity of the Family Court orders and the action is an abuse of process and must be dismissed.

2. Negligence

[35] A defendant may request an action be dismissed on the basis the claim discloses no reasonable cause of action pursuant to R. 21.01(3)(b). To succeed, the defendant must demonstrate that it is plain and obvious that the plaintiff’s claim will fail.[^18] The allegations set out in the statement of claim must be accepted as true and the ‘approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial’.[^19]

[36] As noted in J.B.,

At the heart of r. 21 are the mutual aims of judicial economy and correctness. The power to strike claims that have no chance of success is an important tool that reduces the time and cost of litigation and frees up the court’s time to resolve meritorious disputes. However, the court does not exercise this power lightly. Judges are ever-mindful that the law is fluid, evolving over time so that “actions that yesterday were deemed hopeless may tomorrow succeed”.[^20]

[37] In the present case, the Plaintiff alleges that the investigation undertaken by the CAS was negligent in that it:

• acted as an agent of the police;

• employed an unqualified psychologist to assist the children;

• failed to reassess its position regarding adoption once it knew the conviction had been overturned; and,

• failed to provide him with notice of the adoption proceeding and/or bring a status review application after his conviction was overturned.

[38] The Defendant argues that the J. B. case is a complete answer to any negligence claims the Plaintiff brings against the CAS. The Plaintiff takes the position that he is alleging more than mere negligence, he is alleging intentional wrongdoing.

[39] The Plaintiff cites three cases involving parents and the CAS as supporting his contention that insofar as the CAS’s behaviour was intentional or that his interests aligned with those of the children, the CAS owed him a duty of care.[^21] These cases pre-date the J.B. decision and consequently, have limited precedential value.

[40] I agree with the Defendant that J.B. is a complete answer to the Plaintiff’s claims in negligence.

[41] In J. B., the court noted that,

The underlying ratio of Syl Apps is that where entities exist to protect and provide for children’s best interests, to avoid conflicting duties, they must only owe a duty of care to the children they serve. On this point, there is no principled reason to differentiate between a treatment centre and the CAS.[^22]

[42] Furthermore, the court indicated that even where the parents’ interests and those of the children align, the CAS’ duty of care remains solely with the children.[^23] Additionally, the court held, consistent with Syl Apps, that the duty of care remains with the children throughout the course of the protection application.[^24]

[43] I am not persuaded by the Plaintiff’s argument that there is a fundamental difference between negligent conduct and intentional conduct in the context of this claim. In the present case, the Plaintiff argues that the CAS acted in bad faith and with bias towards him in their handling of the investigation and the adoption proceedings. He also argues that the intent of the CAS was not to act in the best interests of the children but to harm him. However, the nature of a child protection proceeding is to act in a manner that may result in harm to a parent because they may lose their child. That is precisely the reason the court in Syl Apps and in J.B. found that there was an inherent conflict of interest between the CAS and a parent and that the conflict must be resolved by prioritizing the best interests of the child.[^25]

[44] Moreover, the court in J.B. held that the duty of care owed by the CAS to the child was made on a ‘categorical basis’. In other words, no case specific factual inquiry was needed. The issue was not left in a fluid state to be decided on a case by case basis.[^26]

[45] The Plaintiff’s negligence claims must be struck as they disclose no reasonable cause of action.

3. Breach of the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[46] The Plaintiff claims that his s. 7 and s. 11 Charter rights were breached. He argues that his s. 7 rights were infringed by the wrongful removal of his children and the continuation of the adoption proceedings after he was acquitted. He alleges his s. 11 rights were infringed in that the CAS presumed that he was guilty from the outset of their investigation.

[47] Previous cases have found that state removal of a child from a parent’s custody engages the parent’s right to security of the person and that the state may only remove a child from its parent if the process was fair.[^27]

[48] The issue is whether these claims are simply another way of presenting a negligence claim. In J.B., the court found that the basis for the Charter claims was essentially negligence and that allegations of negligence cannot be ‘dressed up as Charter breaches’.[^28]

[49] As noted earlier, the Plaintiff lost his parental rights when there was a final ruling that the children should be made Crown wards for the purpose of adoption. Pursuant to the legislation, the CAS was not required to notify the Plaintiff of the adoption proceedings nor were they obliged to schedule a status review application. The fact of the Plaintiff’s acquittal did not change the status of the children. As noted earlier, to suggest that the CAS had to keep the criminal proceedings in mind as they moved through the processes in relation to the child protection application is to fundamentally misapprehend the separate nature of the two proceedings.

[50] The fact the Family Court orders are not being challenged means that the Plaintiff accepts those orders as valid. If the orders are valid, then the process that the CAS followed after the issuance of the orders, and that is dictated by statute, is necessarily valid. Other than challenging the constitutionality of the legislation – which the Plaintiff is not doing – there is no possibility of success on a Charter challenge.[^29]

4. Misfeasance in Public Office

[51] The Plaintiff makes a claim of misfeasance in public office. Specifically, he alleges that the CAS:

• Unlawfully gathered evidence against the Plaintiff;

• Presumed that the Plaintiff was guilty of the criminal charges;

• Failed to give adequate consideration to the plans of care proposed by members of the Plaintiff’s family;

• Used unqualified experts to provide support and counselling to the children;

• Failed to notify the Plaintiff of the adoption proceedings;

• Failed to initiate a status review application after learning of the Plaintiff’s acquittal; and,

• Failed to advise the Family Court of the change in the Plaintiff’s circumstances.

[52] The tort of misfeasance in public office relates to the abuse of executive or administrative power. The distinguishing elements of that tort are twofold, first, the deliberate unlawful conduct in the exercise of public functions and two, awareness that the conduct is unlawful and likely to injure the Plaintiff.[^30] The tort of misfeasance in public office is an intentional tort.^31

[53] This claim suffers from the same failings as the previous claims. The Plaintiff was obliged to oppose the proceedings when they were taking place. As noted earlier, he did not do so. Once a final order was in place, the CAS was required to follow the procedure set out in the legislation. If the legislation is valid and the orders are valid, then by definition, the CAS cannot be accused of wrongdoing in carrying out those procedures and following those orders.

[54] It is plain and obvious that this claim cannot succeed.

The Honourable Madam Justice Julianne Parfett

Released: February 10, 2022

COURT FILE NO.: CV-17-71881

DATE: 2022/02/10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

D.A.

Plaintiff

– and –

CHILDREN’S AID SOCIETY OF OTTAWA

Defendant

reasons for decision

Parfett J.

Released: February 10, 2022

[^1]: R.R.O. 1990, Reg. 194.

[^2]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11.

[^3]: Toronto (City) v. C.U.P.E, Local 79, 2003 SCC 63 at paras. 22, 35, 37 & 42 (C.U.P.E.).

[^4]: 2004 SCC 25 at para. 71.

[^5]: C.U.P.E. (supra. Note 2) at para. 38.

[^6]: Wernikowski v. Kirkland, Murphy & Ain, 1999 CanLII 3822 (ON CA), [1999] O.J. No. 4812 at para. 12 (C.A.) (Wernikowski).

[^7]: At para. 45.

[^8]: At para. 46.

[^9]: Leroux v. Canada Revenue Agency, 2012 BCCA 63 at para. 22.

[^10]: Harmantas Affidavit at paras. 16-19, Motion Record Tab 2.

[^11]: Exhibit E, Hamantas Affidavit, Motion Record Tab 2.

[^12]: Child and Family Services Act, R.S.O. 1990, Chapter C.11, repealed on April 30, 2018.

[^13]: Section 1(1) CFSA.

[^14]: Section 15(3).

[^15]: Exhibit F at para. 8, Harmantas Affidavit, Motion Record Tab 2.

[^16]: S. 63.1 CFSA.

[^17]: S. 64(1) CFSA.

[^18]: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC) at para. 33.

[^19]: J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198 at para. 24 (J.B.) and R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 21. See also Wellington v. Ontario, 2011 ONCA 274.

[^20]: At para. 25, citing Imperial Tobacco at para. 21.

[^21]: Durakovic v. Guzman, 2013 ONSC 958 (which found that Syl Apps was limited to treatment centers and only related to the period post-investigation), Aspden v. Family and Children’s Services Niagara, 2015 ONSC 1297 (which found that in the context of that case there was no adversarial relationship between the CAS and the parent), T.D. v. Highland Shores Children’s Aid, 2016 ONSC 1432 (which found that the actions of the CAS demonstrated an internalization of bias that could be both negligent and intentional conduct)

[^22]: J.B. at para. 39 [emphasis added].

[^23]: At para. 40.

[^24]: At para. 41.

[^25]: Syl Apps at para. 42, J. B. at para. 39-40.

[^26]: J.B. at para. 44.

[^27]: New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 CanLII 653 (SCC) at para. 61.

[^28]: J.B. at para. 60.

[^29]: See J.B. at para. 62.

[^30]: Odhavji (Estate) v. Woodhouse, [2002] SCC 69 at para. 32.