The experience of being assaulted while in foster care can be traumatic and deeply distressing. Foster care is meant to provide a safe and nurturing environment for children who, for various reasons, cannot remain with their biological families. When children under the care of the Children’s Aid Society (CAS) face physical or emotional harm while in foster care, it raises questions about accountability and the potential for legal action.
We get many calls from people who were abused by their foster parent – far more than I would like to admit. The question we are routinely asked is: can I sue CAS? Though the technical answer is yes, what is important is not whether you can sue CAS but rather whether you should. The answer to that question depends on many factors.
In this post, I will explore the possibility of pursuing legal action against CAS in Ontario for injuries sustained during foster care.
Understanding Foster Care in Ontario
Foster care in Ontario is provided by foster families who are supposed to be carefully screened, trained, and supervised by the CAS in their region. Regional CASs are designated by the Ministry of Children and Youth Services to protect children in their care or supervision pursuant to the Child and Family Services Act, RSO 1990, c C11. Under the Child and Family Services Act, CASs are responsible for:
- investigating allegations or evidence that children may be in need of protection;
- protecting children where necessary;
- providing guidance, counselling, and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;
- providing care for children assigned or committed to its care; and
- supervising children assigned to its supervision.
While CAS and foster parents are expected to ensure the safety and well-being of children, instances of abuse or assault in foster care can and do occur. In such cases, it is essential to explore potential legal remedies.
Can I Sue CAS for Assault?
Yes, a foster child can sue CAS. The possible heads of damages include, but are not limited to, vicarious liability, breach of non-delegable duty, negligence, and breach of fiduciary duty.
Should I sue CAS for Assault?
Just because you can sue CAS does not mean you should. Litigation is often lengthy and time consuming. It can also be emotionally triggering, as you may be asked to re-live the abuse time and time again.
Deciding whether you should proceed with a lawsuit against CAS requires careful consideration by a lawyer of your case. Some factors to consider include:
Memory: Often, survivors of childhood abuse reach out to us, knowing they have been abused but having significant gaps in their memory about the details of what happened to them. This needs to be considered when deciding whether to sue.
Corroboration: Your evidence about having been abused does not have to be corroborated in order for you to be successful in your claim. However, abuse claims are often “he-said-she-said,” and if there is independent evidence (whether that be an eyewitness or documentation) that corroborates your version of events, that would be a factor to consider in deciding whether or not to proceed with a claim.
Damages: As you can imagine, there is a wide range of possible forms of abuse. It includes anything from hitting a child once, not causing any physical injuries, to the repeated physical and sexual assault of a child. Of course, no form of abuse of a child, no matter how minor or major, is acceptable. However, the degree to which you were assaulted, the particulars of the assault, and the impact of the assault on you all weigh into whether you should proceed with a claim against CAS.
In Ontario, it’s important to be aware of the Limitation Act when considering a lawsuit. Generally, you have two years from the date of the incident to file a personal injury claim. However, there are exceptions to this rule. One of those exceptions is when the party who was injured was a minor (under the age of 18) at the time of the injury. In that case, the limitation “clock” does not begin until the injured person’s 18th birthday. They have two years from that day to initiate a claim.
Consulting a Lawyer
If you or a loved one has been assaulted while in foster care and you believe CAS may be at fault, it is advisable to consult with an experienced personal injury lawyer. They can help you assess the merits of your case, navigate the legal process, and provide guidance on your rights and potential remedies.
Being assaulted while in foster care is a grave matter and may result in you seeking justice and accountability for the harm suffered. Consulting with a lawyer who specializes in personal injury cases is the first step in understanding your legal options. At Breedon Litigation, we have experience in pursuing litigation against CAS and are able to assist you in making this important decision.