November 2, 2021

Janelle O’Connor

Cases involving physical and sexual abuse of children by their foster parents is a devastating reality that I am often exposed to in my law practice. The foster care system is meant to protect vulnerable children from abuse and neglect, yet in some cases it does the opposite – exposing highly vulnerable children to sexual and physical abuse and profound trauma that alters their entire lives.

A civil action against the perpetrator often is not possible or practical. The perpetrator is often deceased or without the financial means to satisfy a judgement. In these cases, it is prudent to perform a detailed analysis to determine whether the government – the Ministry of Children and Family Development (“MCFD” or the “Ministry”) – could be held responsible at law.

Generally, the Ministry is not vicariously liable for the actions of foster parents in British Columbia. [1]  The Court in K.L.B v. British Columbia [2003] S.C.J. No. 51 rejected the assertion of vicarious liability of the Ministry, noting that the foster parents were not agents of the government. The Court held that because foster parents operated with independence and autonomy, their actions are too far removed from the actions of the government and, as a result, a finding of vicarious liability could not be imposed.[2]

Notwithstanding these findings on vicarious liability, the Court in K.L.B. did find liability on the part of the Ministry for acting in a negligent manner. Specific instances of the Ministry’s negligence highlighted in this case included the following: i) inadequate supervision (a lack of visits to the foster home for several months); ii) issues concerning prior placements; iii) too many children in the home; and iv) evidence that children expressed unhappiness in the home situation and the social worker did not adequately explore these concerns.

In essence, the court found that the placement and supervision was faulty, permitting the abuse that contributed to the children’s subsequent problems.

In another case, the Court found that the failure to evaluate a foster father’s suitability by, for example, performing a home study, and the failure to supervise (especially since the home was in an isolated location) amounted to inadequate supervision and was deemed negligent.[3]

There are also certain context specific factors that may arguably elevate the Ministry’s duty to those in foster care, such as when the children are struggling with a mental disability, living in an isolated area, or where the Ministry has received indications of potential abuse in the home (i.e., reports of concern from a teacher or a neighbour) and failed to act. In these cases, negligence may be easier to establish.

In evaluating the viability of claims of negligence against the Ministry for sexual abuse suffered while in foster care, it is important to note that the actions of the Ministry social workers will be judged by the standards of the day. As a result, when the assault (and the Ministry’s negligence) took place will be important part of an early analysis in determining the likelihood of success of the specific case.

Whether liability for sexual abuse by foster parents will ultimately rest with the Ministry requires a detailed analysis of the facts and the law. In each case, causation must also be explored. These cases are fact specific and document heavy and require a thorough analysis at the outset.

I am a lawyer practicing in the areas of civil sexual assault and class actions at Murphy Battista LLP. If you have more questions about pursuing a civil claim for sexual assault, I am happy to speak with you on a confidential basis. You can contact Janelle O’Connor HERE.

 

[1] Vicarious liability is a legal doctrine that holds third-parties liable for the actions of others.

[2] See also [2003] S.C.J. No. 53 where the Court also held that the government was not vicariously liable for the torts of foster parents.

[3] [J.A.K.E.] v. British Columbia [2002] B.C.T.C. 418 (S.C.).

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