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Friday 18 August 2017
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What She Said! with Christine Bentley & Kate Wheeler on The Jewel Radio Network.

Daycare Negligence by Kate Mazzucco, McLeish Orlando LLP

by Kate Mazzucco, partner with McLeish Orlando LLP.

As a mother of two pre-school aged children, I understand the challenges and stresses related to finding childcare that best suits the needs of your child and family. Leaving your child in the care of someone else forces you to place an enormous amount of trust in the childcare provider. The safety, well-being and happiness of your child are your highest priority and leaving those priorities in the hands of someone else for a forty plus hour work week is downright scary.

Sadly, recent cases have highlighted that daycares in Ontario are operating far below the standards expected of them. In some cases, the daycare’s failure to provide adequate care has resulted in serious injury or death to the child. In a seven month period in 2013 and 2014, found young children died in unlicensed child care settings in the greater Toronto area.[1] One of those instances was the heartbreaking story of two year old Eva Ravikovich who died of heatstroke when she was forgotten and left in the daycare operator’s vehicle on July 8, 2013.

Investigations after Eva’s death revealed that the unlicensed daycare provider had 29 children in its care that day, a number far exceeding the allowable ratios under the Day Nurseries Act (the province’s previous legislation regarding daycares).   Eva’s case raises issues of not only daycare provider negligence, but also the duty owed by the provincial government to children, like Eva, and their families. After Eva’s tragic death, the Ontario Ombudsman conducted an investigation into how the Ministry of Education (the Ministry responsible for overseeing child care in Ontario) responds to complaints and concerns relating to unlicensed daycare providers. Following the investigation, the Ombudsman released a report entitled Careless About Child Care. The report revealed that the Ministry had failed to properly investigate five complaints that were made about Eva’s daycare before her tragic passing. The report also identified the following systemic problems:

  • Sloppy, inconsistent complaint intake practices and an inadequate complaint tracking system;
  • Ministry guidelines not followed, inspections delayed or never done;
  • Staff untrained in conducting investigations or on the legislation they enforce;
  • Poor inspection practices, careless evidence gathering; and
  • Failure to involve or educate parents about daycare standards and facilities that are not in compliance with them.

The report included 113 recommendations, all of which have been accepted by the provincial government.

The Legislation

As noted above, Eva’s death sparked a review of Ontario’s child care system and likely accelerated the enactment of the Child Care and Early Years Act (the Act). The Act is the primary statute responsible for governing the operation of licensed and unlicensed daycares in Ontario.   It replaces the Day Nurseries Act, which many considered outdated (it had not been reviewed since 1983).

One of the more important standards in the Act addresses the number of children allowed per caregiver working in the daycare. This ratio will depend on the kind of daycare being operated. Unlicensed daycares are allowed no more than five children in the home under the age of thirteen, and no more than two children under the age of two, including a caregiver’s own child or children. In-home licensed daycares operating out of private homes are allowed no more than six children under the age of 13, with the caregivers own children being counted if they are under the age of six. They also cannot have more than two children under the age of two, and additional caregivers may not affect the total number of children allowed in the home.

Licensed child care centres are allowed to care for more children than either of the other two categories, but also must operate within ranges depending on the age of the children. The chart below set out the applicable ratios of children to caregivers in licensed daycares:

The Act also sets out the health and safety protocol for the operations of daycares. All childcare facilities will also have to comply with their local by-laws and municipal codes in the maintenance of their premises and the operation of their business.

What to do if Your Child is Injured While at a Daycare

The negligence of a daycare occurs when a daycare operator or its employee acts in a manner that falls below the standard of care required of them. If the caregiver’s action, or in some cases inaction, causes your child harm or injury, the daycare and its employees are responsible for those injuries and should be held accountable.

Child care providers are expected to provide a healthy, safe and happy environment.   They are required to provide a safe physical environment, healthy meals and snacks, age-appropriate activities, and plans in the event of an emergency.

Can the Province be Held Responsible for the Injury my Child Suffered?

The province has a duty to investigate complaints and carry out inspections of daycare facilities to ensure they are operating safely and incompliance with the standards set out in the Act. The Province is required to issue compliance orders and fines in accordance with the Act. If the province has been negligent in its response to complaints, inspections, issuing of orders, and follow up on orders, it may be found liable for injury to a child.

[1] Ombudsman Report, Careless About Child Care, October 2014