The Director of Child and Family Services (the “Director”) successfully obtained Permanent Guardianship Orders (“Orders”) for three abused children at Trial. During the Trial, the Plaintiffs, the paternal grandparents of the three children, commenced two Actions against the Director and several civil servants for damages related to being separated from the children. The Plaintiffs were unsuccessful in their Appeals of the Orders before the Court of Queen’s Bench and the Court of Appeal. The Defendants applied to summarily dismiss the Actions.

Master Prowse considered Rule 2.11(a), which states that individuals under 18 years of age must have a Litigation Representative to commence an Action, unless otherwise ordered by the Court. In this case, the Plaintiffs commenced the Actions to seek damages on behalf of the children. The Plaintiffs were neither legal guardians nor the children’s Litigation Representatives. As such, the Court held that the Plaintiffs had no status to bring the Actions on the children’s behalf. Further, even if the Plaintiffs were permitted to bring the Actions on the children’s behalf, their Claims were based on the premise that the Plaintiffs were wrongfully denied custody of, or access to, the children. The Court determined that the Plaintiffs’ Actions constituted an attempt to relitigate issues that had already been adjudicated. Master Prowse held that the Actions were a collateral attack on previous Court Orders for custody and access. The Court held further that a collateral attack is an abuse of process, and that conclusion alone was sufficient to meet the criteria to strike the Action pursuant to Rule 3.68(2)(d). Accordingly, the Plaintiffs’ Actions were struck.