Child welfare agencies take responsibility over children who are in their care. But, do they owe any duty of care to biological parents or foster parents? The question has arisen in the context of investigations into families that agencies may undertake. Courts have highlighted that agencies within the child welfare system owe a duty of care to the children under their care, and not to third parties. This ensures that such agencies do not face conflicting duties and can remain focused on protecting the public without worrying about liability to third parties.

Child Welfare Agencies Have a Duty to Act in the Best Interests of the Children in Their Care

In Fowler v. Family and Children’s Services of the Waterloo Region, the appellant was a foster parent, and Family and Child Services of the Waterloo Region (“FCS”) placed a child in his care. Later, FCS investigated allegations of abuse. The appellant commenced legal proceedings against FCS and two of its employees for breach of statutory duty, breach of duty of care, breach of fiduciary duty, and defamation, claiming that shortcomings in the investigation led to the breakdown of his family and the apprehension of one of his daughters from his care.

The respondents brought a motion under the Rules of Civil Procedure seeking to strike the pleading for failing to disclose a reasonable cause of action. They argued that they did not owe legal duties to foster families. The motion judge agreed. However, on appeal the appellants’ argued that the motion judge erred in finding that there was no cause of action in negligence, breach of fiduciary duty, or breach of contract.

Duty to Act in the Best Interests of the Child

The core of the motion judge’s decision was that recognizing a duty of care either in negligence or a fiduciary relationship between the parties would end up putting child protection agencies into conflict with their duty to act in the best interests of the child. The motion judge found that in exercising their mandate under the Child and Family Services Act (“CFSA”), child protection agencies do not owe duties to third parties. The motion judge looked to the decision in Syl Apps Secure Treatment Centre v. B.D. In that case the Supreme Court of Canada explained that child welfare agencies obtain their authority from child welfare statutes.

Under the CFSA, such agencies are directed to act in the best interests of the children under their care. This duty closes the possibility of owing duties to other parties who may have interests that could come into conflict with the children in care, such as a child’s biological parents. As Justice Abella wrote, “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”. The court also acknowledged that child welfare agencies need to pursue a child’s best interests without fear of litigation and liability arising from third parties.

Duty of Care to Third Parties Would Put Agencies into a Conflict

On appeal, the appellants hoped to distinguish the case from Syl Apps, arguing that some judgements interpreted Syl Apps narrowly and “focused only on relationships between biological families and those involved in the medical treatment of their children”. However, the Court of Appeal explained that these cases pre-dated the decision in J.B. v. Ontario (Child and Youth Services). In J.B. the plaintiffs were family members of children in the foster system who were the subject of child welfare investigations. They argued that the child welfare agencies negligently conducted flawed drug testing and used the results in child welfare investigations. The defendants sought to strike the pleadings for disclosing no reasonable cause of action, and the Ontario Court of Appeal agreed that Syl Apps meant that the negligence claim was not tenable. The court explained 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”. Moreover, the Court emphasized that it was the potential for conflict between parental expectations and the child’s best interests that were determinative in the Syl Apps decision, not the nature of the allegations.

Here, the court reasoned that it would be impossible to expect child welfare agencies to act in the best interests of both the alleged victims and alleged perpetrators when investigating allegations of abuse. Thus, this clearly showed why child welfare agencies could not owe a duty of care in negligence to foster families. Moreover, the decision in J.B. was clear that the agencies do not owe a duty of care to any third party, since such a duty could conflict with their legislated obligation to act only in the best interests of the children in their care. The appellants also suggested that FCS owed them a fiduciary duty, which is a duty to act in another’s best interests, and that there were hallmarks of a fiduciary duty in their relationship with FCS. Yet, the Court of Appeal once again explained that under the CFSA, FCS owed a duty of loyalty to act in the best interests of the child, and their fiduciary could only be to the children under their care. The court also identified that any fiduciary duty that would require FCS to “weigh competing interests would be improper”. Consequently, the court agreed with the motion judge that there was no reasonable cause of action based on a claim of a breach of fiduciary duty.

Employees May be Liable for Bad Faith Conduct

The appellants also argued that two FCS employees were personally liable for their bad faith acts. In response, the respondents claimed the two were protected from civil liability by section 15(6) of the CFSA. That provision stated that “no action shall be instituted against an officer or employee of a society for an act done in good faith in the execution or intended execution of the person’s duty or for an alleged neglect or default in the execution in good faith of the person’s duty”. The appellants claimed the employees acted with an absence of good faith, and therefore the provision did not protect the employees.

The motion judge accepted the statute does not provide immunity without any regard to their alleged conduct. However, the motion judge originally struck the claim because the appellants did not plead any specific examples of bad faith conduct. The Court of Appeal agreed that “bald allegations of bad faith were insufficient to surmount the statutory protection”.

Consider How Child Welfare Agencies May be Liable

Courts have repeatedly found that child welfare agencies do not owe a duty of care to third parties and that they are not in a fiduciary relationship to third parties. These agencies need to maintain their focus on the children under their care. Individuals who believe they might have a case against actors within the child welfare system need to think about the types of actions that may still give rise to liability.

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