Syl Apps: Putting Children First

Last Thursday the Supreme Court of Canada (“SCC”) heard Syl Apps Secure Treatment Centre, et al. v. B.D., et. al., 2007 SCC 38 [Syl Apps],  a case that will have lasting consequences on the ability of child welfare agencies and officials to perform their duties. In Syl Apps the SCC will decide whether officials owe a duty of care to the family of a protected child. Despite the impact it will have on parents, it seems such a duty should not be recognized, as its recognition will hamper the agencies’ ability to perform their primary role.

In Syl Apps, R.D. was removed by the Halton Children’s Aid Society (“CAS”) after she wrote a short story at school that alleged her parents had physically and sexually abused her. No criminal charges were ever laid, but the CAS was nevertheless awarded wardship, because the judge found that R.D. was delusional and in need of protection from herself. The CAS subsequently moved R.D. to the Syl Apps Secure Treatment Centre, where according to the family, she was treated as a victim of child abuse, instead of as a sufferer of a psychiatric disorder. As a result of such treatment, the family claims that the Centre ruined the possibility of reintegrating R.D. back into their family.

The family started a claim against the CAS, the Centre, and their employees for damages in negligence. The action continues against the CAS, but the Centre and its social worker moved to strike out the pleadings on the grounds that there is no reasonable cause of action because they did not owe the family a duty of care. The case before the SCC is an appeal from the Ontario Court of Appeal’s 2-1 decision dismissing the motion.

If the primary objective of the administrative scheme is to protect children, this additional duty will put state officials in an awkward position of protecting children on the one hand, while at the same time, having to guard the interests of those from whom they are typically doing the protecting, i.e., the parents. Clearly, in many child protection proceedings, the interests of the two are misaligned, and recognizing such a duty will cause confusion in the system by forcing upon officials this additional concern. This detracts from their ability to achieve their goal of child protection, and raises the possibility that a child may be exposed to undue danger. In all, this seems like a steep price to pay when there already are safeguards in place to protect the interests of parents and families.

The Child and Family Services Act, RSO 1990, c C-11,  which empowers these officials, lays out directives to ensure the integrity of the family unit by giving leeway to officials to help parents care for their children and to ensure that they have an opportunity “to be heard and represented.” Also, a social worker must present proof of immediate harm before a judge before wardship of a child can be obtained. A violation of these directives has an avenue of redress through proceedings in the Family Court. Since these procedures already address the motive of creating a common law duty of care, there seems to be insufficient reason to expand the remedy beyond the Family Court proceedings.

Ultimately, the paramount objective must be to safeguard vulnerable children. With the safeguards already in place to protect family interests, recognizing a further duty would in the best case embroil child protection agencies in lawsuits, and at the worst endanger the lives of children. It is my hope that the SCC recognizes this and overturns the Ontario Court of Appeal’s decision.