Action against CAS a collateral attack on Family Court’s prior orders: Ontario Court of Appeal

A proceeding against the Children’s Aid Society of Ottawa (CAS) was a clear attempt to relitigate the same issues that were before the Family Court in a related child protection case, the Ontario Court of Appeal has ruled.

The plaintiff was convicted of second-degree murder relating to his wife’s death in 2008 and their children became the CAS’s wards. In 2010, they became Crown wards for adoption purposes after an unopposed summary judgment motion.

The Ontario Court of Appeal overturned the conviction. In 2014, the plaintiff was found not guilty after a re-trial. The children were adopted in 2015 and in 2017, the plaintiff brought a claim seeking damages. He alleged that the CAS:

• prejudged his guilt in the criminal proceeding
• improperly acted as an agent of the police and gathered evidence against him
• improperly retained an unqualified psychologist to provide therapy to the children
• failed to base the custody and access arrangements on the children’s best interests
• improperly imposed access conditions on him and his family
• failed to adequately consider the proposed plans of care before finding them not viable
• acted with bias, bad faith, and intentional and/or negligent discharge of its statutory duties by failing to give him notice of the proceedings or by failing to bring a status review application and by continuing with the adoption process after his conviction was overturned

The CAS requested the striking of the plaintiff’s action under rules 21.01(1)(b), 21.01(3)(d), or 25.11(c) the Rules of Civil Procedure. In February 2022, the Ontario Superior Court of Justice ruled in favour of the CAS in D.A. v. CAS Ottawa, 2022 ONSC 501.

First, the Superior Court determined that the plaintiff’s action was an abuse of process because it was an attempt to relitigate issues that the Family Court already addressed and because it was a collateral attack on the validity of the Family Court’s previous orders.

The plaintiff was trying to do indirectly what he failed to do directly, the Superior Court said. Instead, he should have contested the summary judgment motion and appealed that decision if he was unsuccessful.

Second, the Superior Court held that the plaintiff’s negligence claims disclosed no reasonable cause of action. The plaintiff argued that the CAS intended to harm him and acted in bad faith and with bias against him in handling the investigation and the adoption proceedings. The Superior Court said that, by its nature, a child protection proceeding might result in harm to the parent who might lose their child.

Third, the Superior Court rejected the plaintiff’s claims that the wrongful removal of his children and the continuation of the adoption proceedings after his acquittal infringed his rights under s. 7 of the Canadian Charter of Rights and Freedoms and that the CAS’s presumption that he was guilty from the start of the investigation breached his s. 11 rights. The Superior Court found it impossible for the plaintiff’s charter challenge to succeed unless he assailed the constitutionality of the relevant legislation.

Fourth, the plaintiff’s allegations of negligent misfeasance in public office, abuse of power, breach of statutory duty, and bad faith plainly and obviously failed for the same reasons as the plaintiff’s other claims, the Superior Court said. Specifically, the plaintiff did not oppose the proceedings while they were ongoing.

The plaintiff appealed from the order striking his action.

Action is abuse of process: appeal court

In Angelis v. Children's Aid Society of Ottawa, 2022 ONCA 696, the Ontario Court of Appeal dismissed the appeal.

The plaintiff argued that the lower court improperly concluded that the underlying action was an abuse of process. The appellate court agreed with the Superior Court’s finding that the action was a collateral attack on the previous orders because the plaintiff’s claim, at its core, wholly parallelled the basis of his challenge against the orders in the Family Court.

The appellant took no steps to appeal or to set aside the protection finding or the Crown wardship order, which was now called an “extended Society Care order,” leading to the adoption order, the appellate court noted.

The plaintiff contended that he was not contesting the validity of the orders resulting in the adoption. The appellate court responded that it was impossible for the appellant to challenge the CAS’s actions done in line with the statute without contesting that validity.