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CIVIL LIABILITY IN CHILD PROTECTION CASES

It may be that the accuser would be found liable if it can be proven that he or she was ”willfully blind” to the falsity of the statement when it was made.
Ultimately when is the Ministry for children and Families LIABLE

3.1 Offences for False Allegations of Abuse
In theory, a person who knowingly makes a false allegation of sexual abuse may be comm…itting a number of offences under the Criminal Code. A person who knowingly makes a false statement to a police officer accusing another person of committing a crime (which would include any situation of child abuse) commits the offence of mischief, contrary to section 140 of the Code. If the false allegation resulted in a civil or criminal proceeding in which the person who made the allegation testified, other offences might be committed, including perjury (giving false evidence under oath, section 131) or making a false affidavit (section 138). If the accuser persuaded or misled the child or another person to make a false statement, this would be the offence of obstruction of justice (section 139). However, given the criminal standard of proof and the difficulty of proving that the person who made the statement knew it was false, there are very few charges laid under any of these sections in any context.
The difficulty with laying any of these charges is that a prosecution will only succeed if it can be proven beyond a reasonable doubt that the statement was false and that the person making the statement knew it was false. The maker of a false report has a defence if they have an ”honest belief” in the allegation when it was made, even if the belief was not reasonable. It may be that the accuser would be found liable if it can be proven that he or she was ”wilfully blind” to the falsity of the statement when it was made.[31]
.1.1 finding of Contempt of Court Against Person Making False Allegation
While there is only one reported case in Canada of a person making a false allegation of abuse in the context of parental separation being criminally charged, there are a few (four out of one hundred and ninety-six) reported cases in which the person making false allegations has been found to be in contempt of court as part of the civil process and subject to sanctions including fines or jail. These cases all involved a custodial parent with a vengeful attitude or irrational fears refusing to obey an access order. Typically, before the court imposed a sanction, the custodial parent was warned at several court appearances that a finding of contempt would be forthcoming if access continued to be denied.
A case law review suggests that contempt sanctions are imposed only when police or other professionals have thoroughly investigated and found the allegations without substance.
3.1.1 Finding of Contempt of Court Against Person Making False Allegation
While there is only one reported case in Canada of a person making a false allegation of abuse in the context of parental separation being criminally charged, there are a few (four out of one hundred and ninety-six) reported cases in which the person making false allegations has been found to be in contempt of court as part of the civil process and subject to sanctions including fines or jail. These cases all involved a custodial parent with a vengeful attitude or irrational fears refusing to obey an access order. Typically, before the court imposed a sanction, the custodial parent was warned at several court appearances that a finding of contempt would be forthcoming if access continued to be denied.
A case law review suggests that contempt sanctions are imposed only when police or other professionals have thoroughly investigated and found the allegations without substance.
The use of civil contempt proceedings to enforce access can be a cumbersome and expensive process and judges usually make findings of contempt and impose sanctions like jail as a last resort.
3.2 Liability Issues
3.2.1 Child Protection Agency Liability to the Wrongfully Accused Parent
There have been a number of highly publicized cases in Canada in which individuals have claimed that they have been wrongfully accused of sexual abuse by ”overzealous” investigators, and have sought redress in the courts. In most cases, these individuals have been satisfied with an acquittal in criminal court, or a finding in a civil proceeding that refutes the abuse allegation. However, in a few cases individuals have sued investigators for monetary damages to compensate for the expense and emotional anguish from being wrongfully alleged to have abused their child.
Perhaps the most noteworthy case[36] of agency incompetence and bad faith began in 1987 when a Children’s Aid Society in Ontario supported allegations of sexual abuse made by a mother against her former husband. The initial allegation of abuse arose in the context of parental separation and related to the couple’s young children. The agency worker with primary responsibility for the investigation was inexperienced, and the judge in the later civil case brought by the former husband concluded that the investigation and subsequent agency conduct were negligent in several critical respects.
As the child protection trial proceeded in Family Court, it became apparent that the agency’s allegations were groundless, but the agency refused to discontinue the protection application unless the father agreed to forego any claim for court costs. The child protection trial eventually took 51 days to complete. The judge in the protection hearing dismissed the agency allegations against the father, awarded him custody of the children, and ordered the agency to pay $60,000 towards the father’s legal fees.
The father then began a civil suit against the agency and the child protection worker to recover the balance of his legal and other expenses incurred in his lengthy battle to regain his reputation and custody of his children, as well as punitive damages. In 1994 in D.B. v. C.A.S. of Durham Region, Justice Somers of the General Division of the Ontario Court of Justice awarded the father over $110,000 in damages resulting from the false allegation of sexual abuse.[37] The judge in the civil suit concluded that the agency and worker had been negligent and unprofessional in their treatment of the father, negatively affecting both the father and his children. The judge found that the father, an Anglican minister, suffered emotional trauma and loss of reputation as a result of the child protection proceedings and awarded $35,000 in damages for this, and an additional $10,000 for exemplary damages to punish the ”bureaucracy’s” incompetence and abusive actions. The court also awarded a total of $1,500 to the two children for their emotional harm and loss of enjoyment of their relationship with their father. The trial judge also awarded the father $77,000 to cover legal, travel and telephone costs not previously paid as a result of the Family Court proceeding, though the Ontario Court of Appeal reduced that part of the award by $25,000, ruling that the issue of recovery of legal expenses was fully resolved in the earlier Family Court proceedings. While the Ontario Court of Appeal reduced the damage award, it affirmed the principle that an agency could be liable if it was both negligent and biased in its investigation.

In a nut shell the Ministry for children and families can be liable as the agency refused to discontinue the application since knowing the allegations were groundless and the courts may pay legal fees. In respect to a civil suit regarding the Ministry for children and families you can sue for punitive damage and if the Ministry for Children and Families had been negligent and unprofessional in their treatment of the above mentioned case the father and the outcome was it had a negative impact on the children.

The Question ultimately is can the Ministry for Children and Families be sued it is hard to do so because they will say they are the “the crown and not vicariously liable” and of course they acted in good faith. It is a reality that the Ministry for Children and Families lack any accountability how ever in this case The trial judge also awarded the father $77,000 to cover legal, travel and telephone costs not previously paid as a result of the Family Court proceeding, It is affirmed the principle that an agency could be liable if it was both negligent and biased in its investigation.

NEVER SAY NEVER
CIVIL LIABILITY IN CHILD PROTECTION CASES In addition to the issue of child protection agency liability, there are also cases of professional incompetence in situations where allegations of abuse are made, and there is at least the potential for independent professionals involved to be held accountable for their incompetence.[40] In general, professionals are not liable for ”mere errors of judgment” and in some situations will only be liable if they have acted in a biased fashion. In a number of difficult cases, the parents have become so emotionally enmeshed and convinced of their position that they blame alleged professional incompetence if their position is not vindicated in court. The professionals may then find themselves involved in expensive but groundless discipline or malpractice proceedings. Acrimonious custody or access disputes are frequently the source of complaints of professional incompetence to various disciplinary bodies as well as in the courts.

It seems almost impossible to sue the Ministry for Children and Families but it isn’t really because if you have proof then the MCFD are liable for damages if they have been unprofessional or for example removed your children based on false allegations and knowing they were false thus refused to back down and it is hard for some parents lack of rescorces and not enough money to Fight MCFD I know I am one of those parents and you must not give up I have got my case heard after it being dismissed at the court of appeal and went back to supreme court where the adoption order was made bet the MCFD didn’t accpect me to come back I did it is worth it for your children and inpspite of the fact that I have been denied a lawyer I can apply to the Supreme Court an oder for costs for one or to order legal aid to pay for a laywer so far they won’t because it is a clivil hearing not family and It just makes me mad most parents give up at this stage I haven’t I fought the MCFD from 1996 to 20122 all levels of court to the Court of appeal and all levels of Government I am past mad at the fact the MCFD totally lack accountability and the outcome parents go through like what I have and are forced to represent them selves well not this lady I am entitled to a fair hearing and I take back my power I refuse to be treated this way and just by the way if you have been treated unfairly you are entitled to a fair hearing before court and parents need to take back their power and fight if your application has been dismissed before court you still have the option to appeal and I say APPEAL APPLEAL APPEAL if that doesn’t work out you may apply under a different court such as CIVIL to many parents give up you must keep on keeping on until MCFD are accountable!

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