Canada: Can A Children's Aid Society Be Liable For Abuse By Foster Parents?

Last Updated: May 20 2015
Article by Loretta Merritt

Sexual abuse by foster parents can have a devastating effect and cause significant damages. However, a civil action against the individual perpetrator(s) may not be possible (if they are deceased) or worthwhile (if they are impecunious). The survivor's only recourse may be against the Children's Aid Society. There are three possible ways a CAS may be liable for sexual abuse committed by foster parents; vicarious liability, breach of non-delegable duty and negligence. If the CAS is liable for the abuse it will have the means to satisfy the judgment. In many cases, the CAS will also have insurance coverage for such claims.

Vicarious Liability

In order to determine whether vicariously liability can be imposed on a CAS one must start with first principles of institutional vicarious liability for abuse. In Bazley v. Curry1and Jacobi v. Griffiths2, the Supreme Court of Canada set out the principles to be applied in determining the vicarious liability of an employer for sexual assault perpetrated by an employee. The Court referred to the test expounded in Salmond (from Salmond and Heuston's treatise on torts)3 which maintains that employers are vicariously liable for both acts authorized by the employer and unauthorized acts that are deemed to be sufficiently connected with authorized acts that they may be viewed as modes (albeit improper modes) of doing authorized acts. The imposition of vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrongful conduct that arises from that risk, regardless of the intentions or wishes of the employer.

The Court considered the opportunity afforded by the employer's enterprise for the employee to abuse power; the extent to which the wrongful act furthered the employer's interests; the extent to which the employment situation created confrontation, intimacy or other conditions conducive to the wrongful act; the extent of power conferred on the employee in relation to the victim4; and the vulnerability of potential victims when determining an employer's liability.5

In Bazley, a non-profit organization operating residential care facilities for children was held to be vicariously liable for a sexual assault perpetrated by a child care counselor. The Court unanimously rejected the argument that non-profit bodies should be protected from tort liability, a position that was affirmed in Blackwater v. Plint.6 The non-profit was found to be liable for the assault because the assaults took place in circumstances that flowed from the organization's child-care mandate, and because the employee was found to have abused authority given to him by the organization.

In contrast, in Jacobi, the majority of the Court found that a non-profit Boys' and Girls' Club was not vicariously liable for sexual assaults committed by its employee, the program director. Some of the assaults took place in the employee's home, and some of them in the course of excursions relating to the children's sports activities. In applying the test set out in Bazley, the majority found that the required strong connection between the risks inherent in the recreational activities and the employee's job did not give him the degree of control or intimacy with respect to the children that would attract liability.7 The fact that the position gave the perpetrator the opportunity to meet the plaintiff was insufficient for a finding of vicarious liability.

It appears clear from Bazley and Jacobi that, in the context of a traditional employment relationship, the courts must carefully scrutinize the nature of the relationship between the offending employee and the survivor in order to determine whether the employment cloaked the offending employee with sufficient power, authority or trust, which facilitated the offending employee's coercion of sexual compliance or submission to the harmful act. In K.L.B.8 the Court examined the nature of the relationship between the offending employee and the institution itself.

The K.L.B. Trilogy

The Court in the K.L.B. Trilogy affirmed the several principles of vicarious liability found in Bazley and Jacobi. However, in both K.L.B. and M.B9., the Court dismissed appeals in which the Plaintiffs asserted that the government was vicariously liable for sexual assaults committed by their foster parents.

In K.L.B., the Court remarked that the relationship that most often attracts a finding of vicarious liability is that of employer and employee. Such a finding furthers the policy goals of deterrence for the perpetrators and providing an avenue for compensation for the survivors. The Court clarified the distinction between an employee and an independent contractor and stated:

By contrast, imposing vicarious liability in the context of an employer/independent contractor relationship will not generally satisfy these two policy goals. Compensation will not be fair where the organization fixed with responsibility for the tort is too remote from the tortfeasor for the latter to be acting on behalf of it: in such a case, the tort cannot be reasonably regarded as a materialization of the organization's own risks and vicarious liability will have no deterrent effect where the tortfeasor is too independent for the organization to be able to take any measures to prevent such conduct. Hence, the relationship of employer to independent contractor does not generally give rise to vicarious liability (subject to certain exceptions).10

As stated above, in K.L.B., the Supreme Court held that the government was not vicariously liable for torts committed by the plaintiffs' foster parents. In this case, the question of vicarious liability was decided based solely on the issue of whether the relationship between the defendant foster parents and the government was sufficiently close to establish a finding of vicarious liability. The Court ultimately concluded that the government was not vicariously liable for torts committed by the plaintiffs' foster parents.

The Court reasoned that because of the nature of foster care, governments could not regulate foster parents on a regular day-to-day basis given that foster parents operate independently of state control in order to achieve the goals of foster care. This disconnect, as it were, from the government, was prompted by a policy encouraging foster parents to create an environment where children in foster care may experience a more traditional family atmosphere. In furtherance of this policy goal, foster parents act with a substantial amount of independence and autonomy. Therefore, despite foster parents acting to serve a public objective, their actions were viewed as being far-removed from the government to maintain the reasonable perception of acting on behalf of the government in the sense required to justify a finding of vicarious liability.11

The Court also noted that foster parents did not hold themselves out as agents of the government nor were they perceived as such. In contrast, in Bazley, supra, the Supreme Court found the Children's Foundation vicariously liable for the abuse of children by an employee in a residential care facility. While the employees were to act as "parent figures," the care was provided in a facility overseen and managed by the Foundation and not in the employees' private homes.

The Court in KLB further examined the policy basis for imposing vicarious liability. It held that imposing vicarious liability would have little effect as a deterrent in the case of foster families because of the independent nature of the relationship between foster parents and the Government. (In Bazley, deterrence was held to be a key policy goal behind the imposition of vicarious liability.) Without this deterring effect, vicarious liability should not be imposed.12

The Court also distinguished K.L.B. from Lister v. Hesley Hall Ltd.13 In Lister, vicarious liability was imposed on a company because it provided care in a boarding annex, and the warden of the annex would have been reasonably perceived as acting on the company's behalf. To illustrate this point, the Court observed that the care was provided in an annex, not a private home, and the warden received a salary, as opposed to the cost-recovery payments received by foster parents.

Similarly, in M.B., the Supreme Court held that the government was not vicariously liable for torts committed by foster parents against their foster children. It determined that foster parents were not acting "on account" of the government. For this reason and those discussed in K.L.B., the Court did not find the government vicariously liable in this case.14

On the surface the Court seems to indicate that there would be no vicarious liability for abuse by foster parents in any Canadian province. However, this may not be the case if the relationship between the foster parents and the governing entity is substantially different than it is in British Columbia. For example, in Ontario, as discussed below under Non-Delegable Duty, the governing legislation imposes a much higher and stricter standard on the CAS. As a result, the CAS maintains substantial control over foster parents. It is not uncommon for CAS workers in Ontario to meet with school officials and maintain control over medical and other decisions. Third parties such as medical and school officials know that the CAS is the ultimate decision maker. Arguable these differences should lead to a different conclusion on the issue of vicarious liability.


The fundamental rationale underlying the concept of non-delegable duty is that "a party upon whom the law has imposed a strict statutory duty to do a positive act cannot escape liability simply by delegating the work".15 As outlined by the Supreme Court of Canada in Lewis (Guardian ad litem of) v. British Columbia, the Court outlined the rationale for the non-delegable duty as follows:

It is but fair that when a public authority exercises the statutory authority and power granted to it in circumstances which may have serious consequences for the public interest that it be held liable for a breach of duty occasioned by the negligent acts of its contractor. In those circumstances, it is both appropriate and just to hold a public body ultimately responsible for ensuring that reasonable care is taken in the work necessary to carry out its authority.16

In the KLB Trilogy, the Supreme Court first addressed the doctrine of breach of a non-delegable duty in a sexual assault context. The cases of K.L.B. and M.B. raised the issue as to whether the British Columbia government had breached a non-delegable duty to the appellants to ensure that no harm came to them as a result of placing them in foster homes where they were sexually abused.

In K.L.B. and M.B., the relevant statute that applied to both circumstances was the B.C. Protection of Children Act.17 Upon reviewing the terms of the statute, the Court determined that certain provisions did indeed impose non-delegable duties upon government officials, notably those concerning the apprehension of a child. However, following the placement of a child, the PCA does not provide that the Superintendent is responsible for directing foster parents' daily care of children, nor is he/she responsible for ensuring that no harm comes to the children during the course of their placement. Therefore, the legislation offers no basis for imposing on the Superintendent a non-delegable duty to ensure that no harm comes to the children through the abuse or negligence of foster parents.18 Rather, the statute imposed various specific duties, including: placing the child in such a place as best meets his or her needs; caring for the physical well-being of the child before the child is placed in foster care; and a duty to deliver the child to a children's aid society. Thus, the Court held that there was no breach of a non-delegable duty by the government for sexual abuse inflicted by foster parents on foster children as a result of the language contained within the relevant statutory provisions.

The kind of analysis applied in the KLB Trilogy has continued in subsequent decisions. In the Supreme Court decision of Blackwater v. Plint, a residential school case, the Court was confronted with a decision by the trial court which found that the Government of Canada was under a non-delegable statutory duty to ensure the safety and welfare of students at the school under sections 113 and 114 of the Indian Act.19 The Court once again began its analysis with the language contained within the relevant statute, and following E.D.G., stated that the "analysis must determine whether the statute clearly places Canada under a non-delegable duty to ensure that students are kept safe at school".20 Section 113 maintains that the Governor-in-Council may authorize the Minister to establish, operate and maintain schools for Indian children. Section 114 further maintains that the Minister may provide for and regulate various aspects of the school, as well as enter into agreements with religious organizations to provide for the support and maintenance of children being educated at such schools.

The Court focused on the use of the term "may" in these provisions to find that an obligation similar to a duty did not arise in this case. Moreover, the Court held that the power of the government to enter into agreements with religious organizations for the support and education of Indian children suggested that the duties at issue were "eminently delegable" and were found to be "contracted out of by the government".21 The Court further rejected an additional argument that Canada acquired a non-delegable duty to protect the interests of Aboriginal children because it was responsible for forcing them to attend these schools. Thus, the Court reversed the decision at trial that the government had breached a non-delegable duty without engaging in a policy analysis as a potential basis for imposing a non-delegable duty.

Overall, it appears that, in abuse cases, the courts will not find a breach of non-delegable duty unless the enabling legislation explicitly creates a more general non-delegable duty. Ontario's governing statute the Child and Family Services Act22, and predecessor statutes impose far broader and more general duties on children's aid societies than the British Columbia legislation. For example, in the Child and Family Services Act, section 15(3) describes the functions of a children's aid society. These include: protecting, where necessary, children who are under 16 or in the society's care or supervision; and providing care for children assigned or committed to its care under the Act. Therefore, an argument based on non-delegable duty may still be available in Ontario and other provinces where legislation imposes broader general duties23.


Both vicarious liability and breach of non delegable duty are basis of imposing liability on a CAS where there is no evidence of wrong doing by the CAS itself. On the other hand, a finding of liability based on negligence is based on a finding that the CAS's conduct fell below the standard of reasonable care required.

There are many cases where courts have found a CAS to be negligent and liable for sexual abuse committed by foster parents. It is clear from the case law that Children's Aid Societies are to be judged according to the "standards of the day" and therefore the date of the alleged negligence is key. Industry standards are important but not determinative. Courts have found that there is an ongoing duty on the CAS to monitor and supervise children in foster care. In M.B.the court held that a lack of contact between the social worker and the child after placement amounted to negligence on the part of the CAS. Similarly in K.L.B. the court found that the CAS was negligent because 1) there were no visits to the foster home for several months, 2) there were issues concerning prior placements, 3) double the recommend number of children in a home and 4) evidence of unhappiness of the children in the home, which was not probed by social workers. In J.A.K.E. v. B.C.24.the court held that the failure to evaluate a foster father's suitability (i.e., no home study at all), combined with a failure to have proper supervision where the home was in an isolated location was found to be inadequate supervision and negligent. Obviously, each case must be determined based on its own specific facts, however courts hold Children's Aid Societies to a fairly high standard with respect to the duty to monitor and supervise foster care placements.


1 [1999] 2 S.C.R. 534

2 [1999] 2 S.C.R. 570

3 See, e.g., Salmond and Heuston on the Law of Torts (19th ed. 1987), at pp. 521-22).

4 While the term "survivor" may be preferred, the term "victim" has been used where it is the term used in the case law.

5 Bazley, supra note 1 at para. 40.

6 2005 SCC 58, [2005] 3 SCR 3

7 Jacobi, supra note 2.

8 [2003] S.C.J. No. 51

9 [2003] S.C.J. No. 53

10 K.L.B., supra note 8 at para. 20.

11 Ibid.

12 Ibid.

13 [2002] 1 A.C. 215

14 M.B., supra note 9.

15 Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145 at 1157-1158.

16 Ibid. at para. 24.

17 R.S.B.C. 1960, c. 303 (the PCA).

18 [2003] S.C.J. No. 51 [K.L.B.] para. 35-36.

19 S.C. 1951, c. 29.

20 (2005) S.C.C. 58 at para. 48.

21 Ibid. at para. 50.

22 R.S.O. 1990, c. 11.

23 See for example The Child and Family Services Act, C.C.S.M. c. C80, s. 4(1)(i) (The Director of Child and Family Services "shall protect children in need of protection"). See also the Children and Family Services Act, R.S.N.S. 1990, c. 5, s. 9 ("The functions of [a child protection] agency are to (a) protect children from harm ...[and] (g) provide care for children in its care or care and custody pursuant to this Act").

24 E.(J.A.K.) [J.A.K.E.] v British Columbia[2002] B.C.J. No. 597

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Loretta Merritt
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions