EXCLUSIVE: Sued daycare owner says child welfare laws too ambiguous

It’s a small claims court decision that child care workers and legal experts fear will have big repercussions — a home daycare owner successfully sued for causing emotional distress after reporting a case of suspected neglect to the Children’s Aid Society (CAS).

But despite fears it will set a legal precedent that could ultimately deter people from reporting suspected abuse and neglect, the minister in charge of children’s safety in Ontario seemed to downplay the ruling’s ramifications.

“There’s one recent small case in a small claims court,” said Tracy MacCharles, minister of Children and Youth Services. “And the reality is courts are there when people have grievances to deal with, and that court has dealt with that particular case.

“I’m not sure if it establishes any real precedent or not … I don’t want to trivialize it, but anyone can sue anyone in small claims court.”

MacCharles noted that individuals can call the CAS or the police anonymously to avoid a lawsuit.

Tammy Larabie, who ran a Pickering daycare, never thought she would have to conceal her name when she called the CAS to express concerns about a toddler in her care.

She feared the boy was malnourished, saying he was on a restricted diet, slept for up to six hours a day and was listless and failing to thrive.

A CAS investigation was launched.

To her relief, the subsequent probe didn’t substantiate her worries.

But she soon faced a new anxiety: a hefty lawsuit from the boy’s parents.

She maintained all along that she was merely abiding by her legislative duty to report.

The Child and Family Services Act states that the “public, including professionals who work with children, must promptly report any suspicions that a child is, or may be in need of protection, to a children’s aid society.”

It adds that individuals who file a report are legally protected unless they act maliciously or without reasonable grounds.

The judge found Larabie didn’t act maliciously, but said she didn’t have reasonable grounds and ruled in favour of the toddler’s parents. They were awarded $10,000 plus court costs for emotional distress.

Larabie now faces a substantial financial burden and her daycare is no longer operating.

But even more troubling are her fears that children who need help won’t get it.

“I worry that this will stop a lot of people from making a report,” she said. “This is why I want to tell my story. So people can be aware that this can potentially happen to them. And we need to put pressure on the government to change the legislation so this won’t happen.”

Larabie feels the language in the legislation, specifically the part pertaining to having “reasonable grounds” to file a complaint, is too ambiguous.

Premier Kathleen Wynne wouldn’t commit to rewriting the legislation but said the case deserved a closer look.

“We want to make sure that the laws that are in place are the right balance to ensure that people report when they see that there’s abuse, and that they feel free to report, but that they understand what it is that they are looking at,” she said.

“Certainly we need to look at the (court) decision and see if we have the right balance in place.”

Labarie believes the ruling, and lack of government response, will “put children at risk.”

“People shouldn’t have to question their suspicion or their gut feeling for fear of being sued,” she said.

Many child welfare workers agree with her.

“It definitely sets a worrisome tone in the public about reporting,” said Audrey Rastin, of the advocacy group Boost Child Abuse Prevention & Intervention.

“I hope every time I call the CAS that I’m wrong because the alternative is worse.”

Carolyn Ferns of the Ontario Coalition for Better Child Care believes a legal appeal is the only way to right what she considers a glaring wrong.

“I would certainly hope to see this case being appealed and if the woman in question doesn’t have the funds to appeal it, I would think that there would be lawyers offering to do this work pro bono,” she said.

“It would be very troubling if this set a precedent.”

To see Tuesday’s five-part coverage of this story, click here.