Losing a child is likely to be any parent’s worst nightmare. Of course there are cases where a parent should be removed and CAS should secure alternate permanent placement for such children at soon as possible. However, many families are merely victims to false complaints of child neglect and abuse from teachers, doctors, bitter ex partners and intrusive neighbours. If your child has been wrongfully apprehended, suing the CAS can be a stressful and daunting process.
It is important to speak with a lawyer as soon as possible if you are in this situation. Do not escalate the situation by threatening or challenging the CAS worker. CAS will not negotiate with you and will resist compensating you for any wrongdoing on their part. It will want a court to strike your claim for damages, so you can’t have your case heard by a trial judge.
CAS will argue that it doesn’t owe you a duty of care and that it only owes your child a duty of care. If you want to sue on behalf of your child, you will need to sue in the name of a litigation guardian for the child. You may feel that you have been personally wronged but the law is not clear as to whether you have a right to be compensated monetarily.
There have been cases where CAS was found to have been negligent or to have acted in bad faith. But the court will strike out your claim if it doesn’t think that you have a reasonable prospect of succeeding. If you are a self-represented litigant, it is important that at the very least, you have a lawyer prepare your Statement of Claim, perhaps on a limited retainer basis. He or she can assist you with clearly setting out why you feel wronged and why CAS should compensate you.
Though CAS employees are protected against personal liability for any act done in good faith execution or intended execution of their duties, this immunity can be set aside if you are able to prove that a CAS worker acted with bad faith. You may be successful in suing CAS if you make a strong case showing the CAS worker was biased, deliberately ignored relevant information, knowingly filed a false affidavit, or demonstrated malice towards you.
Although there is a presumption in civil cases that a successful party is entitled to costs, there is no such presumption for costs in a child protection case (Ontario Family Law Rules, R. 24(2)). Courts have been hesitant to use cost orders to punish CAS for errors of judgment, as they have a statutory duty to protect children from harm. However, Rule 24(2) does not give CAS the power to act with impunity.
The courts have ordered costs against CAS in limited circumstances, where its behaviour is blatantly unfair or indefensible. This should provide some hope and recourse for parents who have been subjected to biased investigations or litigation. If you are in this unnerving situation, it is important to seek legal advice before taking action. A lawyer can determine whether CAS’ conduct in your situation fell into the realm of “bad faith” and thus might give rise to liability.
For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.