Personal Injury

Children's aid societies potentially liable for injuries in care

By AdvocateDaily.com Staff

There are a number of ways a children’s aid society (CAS) can be found liable for injuries to children in their care, Toronto critical injury lawyer Rikin Morzaria tells AdvocateDaily.com.

The Edmonton Journal reported on the case of a four-year-old Indigenous former foster child whose caregivers have been charged in connection with her death in 2014 from catastrophic head injuries.

Morzaria, a partner with McLeish Orlando LLP, says it’s not uncommon for parents to have children removed from their care temporarily while they engage in some form of therapy, often related to alcohol or drug abuse.

“There doesn’t have to be any hint of abuse — it may just be that the parent is not in a position to care for the children and a CAS becomes responsible for placing them in foster care,” says Morzaria, who was not involved with the case and comments generally.

Should children suffer serious injuries or even death during a temporary placement, he says their parents or family members may have legal recourse against the child welfare agency involved.

In the rarest of cases, he says the agency could be found vicariously liable for the injuries.

“In those circumstances, you would have to be able to find a very close tie between the agency and the person responsible, such as one of its employees or another person under its control and whose behaviour it should be expected to curb,” Morzaria explains.

When foster parents or individuals granted guardianship of the child are alleged to be responsible for injuries, he says another route for family members to explore is potential CAS negligence in the decision to place the child.

“The CAS must take responsible steps to investigate the background of the carer, and ask around to make sure that there is no concerning information known generally in the community without being formally reported,” Morzaria says. “After the placement has been made, the CAS must continue ongoing monitoring in a way that’s effective.”

He says red flags may be raised if CAS staff only ever visited children in the presence of their new caregivers, or if inadequate action was taken upon receipt of complaints.

In the Alberta case, the young girl was in foster care before her great aunt and great uncle were granted guardianship, prompting child welfare to close her file. However, she was brought to hospital in September 2014 weighing just 18 pounds and with a series of injuries, including head trauma, severe hypothermia, serious malnutrition and anal and genital bruising.

After her death nine days later, the girl’s caregivers were charged jointly with one count of failing to provide the necessaries of life.

According to the Journal, police have not released the cause of her death, while the province’s justice minister said any fatality inquiry would only occur once the legal proceedings are complete.

“You want to avoid a situation where there’s any potential prejudice,” Kathleen Ganley told the newspaper.

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