Contributed by Ashley Ash
Ashley Ash is a 2L Student at the University of Windsor, Faculty of Law. As a child welfare survivor, she has been a long advocate for children’s rights in Ontario but has now moved her advocacy to the legal realm. She hopes to continue her research outlined in this article one day as a LL.M. thesis and hopes to work in some capacity after law school advancing children’s rights.
The question of what we owe children is one I have been trying to answer all my life. Who owes that care? Who is in charge of that care? Who is accountable to that care? Between the ages of one and twelve, I spent my most formative years shuttling between my home and multiple foster homes, the whole time wondering who was really supposed to be caring for me? It certainly didn’t feel like the social workers who would come pick me up from school and drop me off in another city without explaining anything to me about how long I would be staying, or any other details I could cling to for a sense of normalcy. It certainly didn’t feel like my foster parents who would make clear how different I was from their birth children in subtle and not so subtle ways. I spent a lot of time searching for “care” and trying to make sense of my surroundings. Looking back now, this situation and the lack of transparency and information afforded to me by those who were meant to care for me left me in a vulnerable position, when in fact, apprehensions are thought to occur because children are in need of care and protection.
I am now in my second year of law school at University of Windsor. After spending a summer working on research pertaining to constitutionalizing children’s rights in Canada, I knew that I wanted to explore research on children’s rights or lack thereof further. I was lucky, through conversations with a former colleague at Justice for Children and Youth and my current research supervisor, to be able to narrow the focus of my initial question into a major research paper on the examination of child death inquests that come out of the Coroner’s Office in Ontario with focus on constitutional and tort remedies.
The law of torts governs over almost every aspect in civil society and the purpose of the law of torts is to adjust losses that may occur as a result of conduct amongst people in society (A.M. Linden, Canadian Tort Law: Cases, Notes & Materials, 15th, (Canada: LexisNexis, 2018 at 2)). In my torts class this year we discussed the concept of duty of care owed. The idea that a legal obligation could exist for “care” made me wonder how it was operationalized in the lives of children in the care of residential systems in Ontario and how it contributed to the gaps in care when children died under the care of said systems.
In the leading case of Syl Apps Secure Treatment Centre v B.D., 2007 SCC 38 at para 41, the court confirmed that service providers have a statutory duty to promote the best interests, protection and well-being of the children under their care and that this interest is of paramount importance. This might be thought to be a progressive comment on the nature of children’s rights in care in Ontario. However, the Court went on to refer to the potential chilling effect that might occur if child protection workers don’t feel free to execute their mandate under the governing legislation for fear of litigation. With respect, this decision and commentary seemed to affirm the special protections or flexibility that child protection services and workers are afforded, often after certain violations of care or protections have occurred. Further, the impact on children may be great if the duty of care can be construed in a way that workers are able to disregard or separate the intrinsic connection between the best interest of the child and their connections to their families.
When I furthered my research analysis to include the concept of vicarious liability owed, I came across the case of K.L.B. v British Columbia, 2003 SCC 51, which on appeal dealt with the grounds of whether a government could be held liable for the tortious conduct of foster parents towards children in their care. In this case, the conduct referred to abuse and inappropriate sexual behaviour. While reading through the judgement, a statement by the court struck me deeply. The court at para 29 concluded that it was “important in the nature of family-based care, that foster parents are in important respects, independent, and that the government cannot exercise sufficient control over their activities so that they will not be seen as acting on account of the government.” Having had multiple foster parents myself, I found this troubling. A sufficient degree of accountability and oversight is needed, perhaps more so, when vulnerable youth are placed in family-based settings. Foster parents are not independent actors in the realm of child welfare. They hold an important status that is linked to both the child’s well-being and their duties under their respective child welfare agencies. Gaps in care can occur when we treat these actors as fully independent in nature and these gaps can be violent or deadly.
I am still in the process of writing my research and even after, I am sure I will still be struggling to answer my initial question. The truth is, it is still considered revolutionary to see children as independent rights holders capable of participation and worthy of justice and inclusion.
What do we owe Ontario’s children? The same thing we would want for every child, whether in care or not. Care, accountability, and support.