Canada: In a rare legal case, Toronto teen gets green light to sue children’s aid for negligence - PressFrom - Canada
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CanadaIn a rare legal case, Toronto teen gets green light to sue children’s aid for negligence

18:02  23 august  2019
18:02  23 august  2019 Source:   thestar.com

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In a rare legal case, Toronto teen gets green light to sue children’s aid for negligence© Alyshah Hasham Julie Kirkpatrick argued in an appeal submission Monday that “child protection agencies are not above the law.” Kirkpatrick is representing five plaintiffs whose children were apprehended after children’s aid societies used now-discredited drug tests by the Hospital for Sick Children’s Motherisk Lab. The parents are suing individuals and agencies involved in the scandal, including six children’s aid societies.

A Superior Court judge has ruled that a Toronto teenager can proceed with a $2 million lawsuit against the Catholic Children’s Aid Society of Toronto for allegedly conducting a negligent investigation and placing her in an abusive home.

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The lawsuit, which claims the society participated in filing “false affidavits” to take the girl into its custody, is a rare example of a child taken into care claiming damages. The 19-year-old teen was apprehended when she was 11.

She was returned to the care of her father two years later, after the father succeeded in having the society’s employee removed as the family’s case worker, the ruling notes.

But while allowing the teenager’s lawsuit to continue, Justice Thomas Lederer dismissed all claims from her father. The father had launched the lawsuit jointly with his daughter and sought damages for “defamation, malicious prosecution, loss of income and all legal costs.”

In a rare legal case, Toronto teen gets green light to sue children’s aid for negligence© Steve Russell A 19-year-old girl’s allegations against the Catholic Children’s Aid Society of Toronto have not yet been tested in court, but a lawsuit has been allowed to proceed. Lederer ruled in April that children’s aid had no duty of care to the father. The only duty agencies have when investigating potential abuse or neglect is to the child, the judge added.

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The lawsuit’s allegations have not been tested in court. The father, his lawyer and the Catholic Children’s Aid Society of Toronto refused to comment on the case. The father and his lawyer noted that case documents have been sealed by court order and aren’t publicly available.

Lederer’s ruling, however, was posted and publicly available on the Canadian Legal Information Institute website (CanLII).

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Access to experienced legal aid lawyers can be limited, and many months — possibly years — might pass before a final court decision on custody is made about a child who has been apprehended.

This week, a significant legal step was taken in what parents hope will level the playing field: plaintiffs in five high-profile child-care lawsuits — not including the Toronto teenager’s suit — took their cases to Ontario’s Court of Appeal.

The five cases involve Ontario parents whose children were apprehended — and some eventually adopted — after children’s aid societies used now discredited drug tests by the Hospital for Sick Children’s Motherisk Lab.

A provincially appointed review in 2015 found that Motherisk’s test results from 2005 to 2015 were “inadequate and unreliable.” A second probe of 1,300 child protection cases in Ontario found 56 families were “broken apart” by the lab’s faulty testing.

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Parents in the five cases — and a child who was made a Crown ward — filed multimillion-dollar lawsuits against individuals and agencies involved in the Motherisk scandal, including six children’s aid societies and the provincial government, which regulates and oversees the agencies.

They appealed after Superior Court Justice Darla Wilson, in a May ruling, dismissed the lawsuits for the same reasons Justice Lederer threw out the father’s claim a month earlier.

“The law is clear and I find that there is no duty of care owed … to the parents of children who are under investigation by the CAS,” Wilson wrote in her ruling. “These claims cannot succeed and must be struck without leave to amend.”

Julie Kirkpatrick, the lawyer for all five of the appealed cases, says such reasoning gives children’s aid “blanket immunity,” even when fundamental rules of justice and the Charter of Rights and Freedoms are violated.

“Child protection agencies are not above the law and cannot be permitted to act with impunity, and without the scrutiny of the courts,” Kirkpatrick argues in the appeal submission she filed Monday.

The Lederer and Wilson rulings were issued before the lawsuits went to trial. The defendants argued that grounds for a lawsuit did not exist and therefore plaintiffs had no chance of success. The judges agreed — except for Lederer allowing the Toronto teenager’s lawsuit to proceed.

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At the heart of the dispute is the provincial Child, Youth and Family Services Act, which states that the “paramount purpose of this Act is to promote the best interests, protection and well-being of children.”

The act further states that “no (legal) action shall be instituted against an officer or employee of a society for an act done in good faith.” In allowing the Toronto teenager’s lawsuit to continue, Justice Lederer noted that for her to win, she’ll have to prove that whatever negligence might have occurred was done in bad faith.

Kirkpatrick says in an interview that if a parent’s interest conflicts with that of a child during a protection process, what’s best for the child should prevail.

But she argues that children and their parents also have common interests, including receiving supports to keep the family intact and having a child protection process that is fair and impartial.

The only way to determine whether interests clash is by scrutinizing the evidence during a trial, she says. Lederer and Wilson instead dismissed the parents’ lawsuits before evidence was even heard, Kirkpatrick notes.

“You can’t assume, ‘Oh well, these people are involved with the children’s aid society so there must be something wrong and it must be better for the child to be away from their parents,’ ” Kirkpatrick says in an interview, referring to the gravity of a child taken from parents. “It needs to be tested in court.”

The judges relied heavily on a 2007 ruling by the Supreme Court of Canada. The case involved a claim by parents whose child was apprehended by children’s aid and placed in the Syl Apps Youth Centre in Oakville for treatment.

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The Supreme Court dismissed the parents’ lawsuit, ruling the treatment providers at Syl Apps had a duty of care only to the child.

Kirkpatrick argues the Supreme Court ruling applies to circumstances strikingly different from her cases. Syl Apps was not about the process that resulted in children being apprehended; it examined the role of treatment centre workers with a child already in care. Her clients, she argues, were victims of children’s aid societies relying on faulty drug tests to apprehend their children, conduct so “reckless” it amounts to bad faith and a violation of charter rights.

In her appeal submission, Kirkpatrick concedes there are “many cases in Ontario, and across Canada” where courts have ruled that duty of care is owed only to the child. But she argues that the court of appeal has never fully dealt with the issue, so the law on the matter remains unsettled.

She also cites a 2017 Court of Queen’s Bench of Alberta decision which states that, “In carrying out their mandate to act ‘in the best interest of the child,’ child protection agencies are subject to the rule of law.”

Ontario’s child protection system serves some 14,000 youth taken from abusive or neglectful parents and placed in foster or group homes. Many more are helped by children’s aid societies — which receive $1.5 billion annually in provincial funding — while remaining with their parents.

Nicholas Bala, a family and children’s law professor at Queen’s University, says the legal dispute raises legitimate questions about how children’s aid societies can be held accountable, particularly after the Ford government eliminated the Office of the Provincial Advocate for Children and Youth.

But he supports restricting duty of care to children. Expanding it to parents would drain shrinking resources into more legal battles, he argues, and make the already stressful and demanding job of child protection workers more difficult.

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A better option, Bala says, is to give parents more support during the child protection process, and make sure they have access to legal aid if they can’t afford a lawyer when children’s aid goes to court to remove their child.

After reviewing the Lederer decision about the Toronto teen and the Catholic Children’s Aid Society, Bala noted that a child protection worker’s job is especially difficult when one of the parents is accused of intentionally misleading children’s aid.

In the Toronto teen’s case, the Catholic Children’s Aid Society of Toronto initially became involved in February 2011, when the 11-year-old girl told fellow students “her mother was drinking alcohol to excess and physically assaulting her,” according to Lederer’s summary of the statement of claim.

The agency initially investigated the mother. But it allegedly shifted its focus to the father when the mother “falsely informed” Toronto police that he had “imprisoned her in their home,” the summary says.

In concert with the mother, agency employees “worked to discredit (the father) even to the point of filing false affidavits which were used to obtain an interim order placing (the daughter) in the custody of the Catholic Children’s Aid Society,” Lederer’s summary of the claim alleges.

“In the face of a motion brought by the father to release the child into his custody (the fourth such motion he had brought), without warning or court order the Catholic Children’s Aid Society placed the child in the temporary care of her mother who continued to drink to excess and abuse her daughter,” the summary claims.

“In time, (the daughter) sought refuge with her father. Thereafter, the Catholic Children’s Aid Society attempted to have the father and the child sign a false Agreed Statement of Facts which would have absolved it and the other defendants of any liability and, if they refused, threatened to bring a motion for summary judgment to declare (the daughter) in need of protection.”

In February 2014, the daughter “was returned to the care of the father,” the summary says.

Provided with a list of the allegations by the Star, a senior manager with the Catholic society said it could not comment because the case “is currently before the court in full litigation.” Child protection workers with the society are also defendants in the suit, along with an “independent contractor” who acted as a foster parent to the girl for a period of time.

Lederer’s ruling was removed from the CanLII website after the Star contacted parties in the lawsuit with questions.

The Court of Appeal will hear Kirkpatrick’s arguments in the Motherisk cases on Dec. 12.

Sandro Contenta is a reporter and feature writer based in Toronto. Follow him on Twitter: @scontenta

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