For thousands of children across Ontario, the Province is their legal guardian. These children are referred to as Crown Wards under the Child and Family Services Act. A Crown Wardship order will typically be made by the courts if it is found that it is in the child’s best interests that he or she no longer resides with his or her biological parents and where placing the child with another family member is not an option. In the event that a Crown Wardship order is made, the Province becomes the child’s legal guardian with all of the rights and responsibilities that this entails.

Many of these children are often removed from the care of their families as a result of being in an abusive environment. In a Class Action being brought against the government of Ontario, it is further alleged that once these children were made Crown Wards, that many continued to be victimized while in the system, including being subjected to physical, emotional, and sexual abuse.

The Class Action, which encompasses all children who were Crown Wards at any time from January 1, 1966, is seeking justice for what is viewed as the government of Ontario’s failure to protect their rights to claim for the abuse they suffered both prior to becoming Crown Wards and while under the Province’s care. Specifically, it is being claimed that as a result of the Province’s inaction, limitation periods have passed and evidence has disappeared, affecting their ability to seek damages and compensation which is in breach of their fiduciary duties.

Despite arguments by the Province that it does not owe a duty of care to the Crown Wards, the Superior Court of Ontario ruled last week that the Class Action may proceed.  The Honourable Mr. Justice  Fregeau dismissed the Province’s attempt to appeal the decision of the Superior Court which had granted the motion for an order that the first part of the test for certification be granted.

As the Plaintiffs continue on with the next steps in their action, it remains to be seen whether the courts will ultimately find that the Province did, in fact, owe a duty of care as legal guardian to the Crown Wards and whether any inaction in protecting their rights will be interpreted as a breach of fiduciary duty.

Thank you for reading.

Suzana Popovic-Montag