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Family - Child Welfare Agencies - Liability. Patterson v. Eastern Residential Services Inc.
In Patterson v. Eastern Residential Services Inc. (Ont CA, 2026) the Ontario Court of Appeal partially dismisses an appeal, here brought against the "order made on a r.21 motion under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which struck his statement of claim against Eastern Residential Services Inc. (“ERS”) and Simcoe Muskoka Family Connexions (“SMFC”), except for the breach of contract claim against ERS, which was struck with leave to amend".
The court considered the liability in negligence to parents, here from child welfare agencies:2. J.B. v. Ontario (Child and Youth Services)
[29] The appellant submits that, contrary to this court’s decision in J.B., child welfare agencies may, in some circumstances, owe a duty of care to parents and foster parents of the children they are mandated to protect.
[30] In Syl Apps, the Supreme Court held that the Children’s Aid Society did not owe a duty of care to biological parents because such a duty would conflict with the statutory duty owed to children in its care. In J.B., this court interpreted Syl Apps and similarly held 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”: at para. 39. The appellant argues that this interpretation reads Syl Apps too broadly. In his view, Syl Apps did not establish a categorical rule that a Children’s Aid Society can only owe a duty of care to the children they serve and never, under any circumstances, to a parent or foster parent.
[31] The appellant relies on para. 49 of the British Columbia Court of Appeal’s decision in Harrison v. British Columbia (Children and Family Development), 2010 BCCA 220, 319 D.L.R. (4th) 251, leave to appeal refused, [2010] S.C.C.A. No. 293, to argue that a Children’s Aid Society may owe a duty of care to someone other than a child where doing so would not conflict with the CYFSA’s overriding mandate. He submits that this is such a case because the allegations were made purportedly on behalf of a child who could not communicate, and because B.M. was no longer in his care. In those circumstances, investigating past allegations of sexual abuse would not place the Societies in a potential conflict with the child. Nor, he adds, would a foster parent have parental expectations about the care a Crown ward would receive after removal from the foster home.
[32] I reject the appellant’s submission that any conflict in the Societies’ duties ended once B.M. was removed from his care. Even then, the Societies’ obligation to protect B.M. remained in tension with the duty of care the appellant says they owed him in investigating the alleged sexual abuse. Section 1(1) of the CYFSA confirms that priority: “The paramount purpose of this Act is to promote the best interests, protection and well-being of children.”
[33] In short, the Societies’ duty of care was owed to children who are, or may be, in the appellant’s care and whose safety may therefore be at risk. Not to him.
[34] Following J.B. and Syl Apps, this court reaffirmed in Fowler that a child welfare agency investigating abuse allegations cannot be expected to act in the best interests of both the alleged victims and the alleged perpetrators: at para. 37. This court also accepted that child welfare agencies, in exercising their statutory mandate, do not owe duties of care to third parties-that is, to anyone other than the children they serve: at para. 29.
[35] The law is settled: the appellant cannot maintain a negligence claim against the Societies. It is therefore plain and obvious that this cause of action will fail. . Fowler v. Family and Children’s Services of the Waterloo Region
In Fowler v. Family and Children’s Services of the Waterloo Region (Ont CA, 2023) the Court of Appeal considered the fiduciary duty liability of a child welfare agency, here to a contractual foster parents:[39] In addition to claiming a duty of care in negligence, the appellants also suggest that FCS owed them a fiduciary duty. They suggest that certain hallmarks of a fiduciary duty exist in this relationship. A fiduciary duty is a duty in equity for one party to act in the best interests of another: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at paras. 29-30. But again, FCS owes a duty of loyalty mandated by the CFSA to act in the best interests of the child. Given the clear potential for the child and the foster family’s interests to conflict, FCS’s fiduciary duty must only be to the children in its care. As the motion judge noted, any fiduciary duty that would require FCS to weigh competing interests would be improper. Indeed, this court held as such in J.B., at para. 71. We therefore agree with the motion judge that there is no reasonable cause of action based on a claim for breach of fiduciary duty in this case. . Fowler v. Family and Children’s Services of the Waterloo Region
In Fowler v. Family and Children’s Services of the Waterloo Region (Ont CA, 2023) the Court of Appeal considered the liability immunity in negligence of child welfare agencies, here where the issue was the liability of such an agency to foster parents - and procedurally in the course of a R21.01(1)(b) ['no reasonable cause of action or defence'] striking pleadings motion:[6] In Syl Apps, the Supreme Court held that child welfare agencies do not owe a duty of care to the biological parents of children under their care. The Supreme Court reasoned that if child welfare agencies owed a duty of care to a child’s biological parents, that duty would conflict with their fundamental, statutory duty of care to the child. This court’s decision in J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198, 445 D.L.R. (4th) 642, at para. 39, leave to appeal refused, [2020] S.C.C.A. No. 129 and [2020] S.C.C.A. No. 151, interpreted Syl Apps to mean 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” (emphasis added). While the appellants seek to distinguish this case on its facts, J.B.’s statement of law on the duties of child welfare agencies is clear and categorical. In our view, the motion judge correctly held that to “find that a foster parent is owed a duty of care by a child protection agency would run counter to the reasoning of these binding authorities.” Thus, despite assuming the facts pleaded to be true, the pleading disclosed no reasonable cause of action.
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[29] The motion judge held that recognizing a duty of care in negligence or a fiduciary relationship between the parties would put FCS directly into conflict with its paramount duty to act in the best interests of the child. She found that it was well-settled law that child protection agencies like FCS do not owe duties to third parties in exercising their mandate under the CFSA. We agree with the motion judge. Given the binding authority of Syl Apps and J.B., the pleading discloses no reasonable cause of action in negligence or for breach of fiduciary duty.
[30] In Syl Apps, the plaintiffs were biological family members of a child who was placed into a foster home and, later, under a wardship with the Halton Children’s Aid Society. The Society was concerned that the child was being abused by her parents, which the parents vociferously denied. Over several years in care, the child attempted suicide multiple times, and was moved to various medical facilities. The family members opposed the wardship orders and eventually sued the various government institutions and officials for negligence. The crux of the claim was that the defendants had negligently treated the child as if she was a victim of abuse, which caused her separation from her family, which in turn deprived her family of a relationship with her.
[31] Two defendants – one of the medical facilities that treated the child and one of its social workers – brought a r. 21.01(1)(b) motion, which eventually made its way to the Supreme Court. For a unanimous court, Abella J. conducted an “Anns/Cooper”[4] analysis to determine whether a novel duty of care in negligence existed between the parties. Abella J. held that it was plain and obvious that no such duty existed.
[32] Abella J.’s reasoning rested on a lack of proximity between the parties. Child welfare agencies derive their purpose and authority from child welfare statutes. And under the CFSA, child welfare agencies are required to act in the best interests of the children under their care. This paramount duty forecloses the possibility of proximity to other parties whose interests could conflict with those of the children in care. As Abella J. stated, at paras. 41 and 43:The deciding factor for me, as in Cooper and Edwards, is the potential for conflicting duties: imposing a duty of care on the relationship between the family of a child in care and that child’s court-ordered service providers creates a genuine potential for “serious and significant” conflict with the service providers’ transcendent statutory duty to promote the best interests, protection and well-being of the children in their care.
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It is true that treating a child in need of protection can sometimes be done in a way that meets with the family’s satisfaction in the long term. But it is not the family’s satisfaction in the long term to which the statute gives primacy, it is the child’s best interests. The fact that the interests of the parents and of the child may occasionally align does not diminish the concern that in many, if not most of the cases, conflict in inevitable. [33] Child welfare agencies must be able to act in the best interests of the children in their care, without fear of liability in negligence to third parties. Accordingly, there was no proximity in the relationship between the treatment facility and the parents. Since proximity is a required component of the Anns/Cooper test, this statutory backdrop was fatal to a claim for the existence of a common law duty of care.
[34] The appellants attempt to distinguish this case from Syl Apps on the basis that Abella J. did not specifically opine on a duty to foster families. They cite Superior Court judgments that support their interpretation of Syl Apps as being a narrow judgment, focused only on relationships between biological families and those involved in the medical treatment of their children. However, these lower-court decisions all predate J.B.
[35] In J.B., the plaintiffs were again family members of children in the foster system. They alleged that various child welfare agencies conducted negligent investigations of alcohol and drug abuse and then used the flawed results of those investigations in criminal and child protection proceedings. The defendants moved to strike under r. 21.01(1)(b). On appeal, this court agreed that Syl Apps created a categorical rule, which meant that the claim in negligence was not tenable.
[36] For the court, Benotto J.A. stated, at para. 39: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. The potential for a conflict between the child’s best interests and parental expectations was crucial to the Supreme Court’s analysis in Syl Apps – the nature of the treatment centre and the allegations at issue were not determinative in this regard: Syl Apps, at para. 41. [37] In our view, it would be impossible to expect a child welfare agency, when investigating allegations of abuse, to act in the best interests of both the alleged victims and alleged perpetrators of that abuse. This case exemplifies why child welfare agencies do not owe a duty of care in negligence to foster families.
[38] J.B. is clear and categorical. It is plain and obvious that children’s aid societies do not owe a duty of care in negligence to any third party, because the existence of such a duty could conflict with their transcendent, statutory duty to act only in the best interests of the children under their care.
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