The ruling by a provincial judge this week that a Toronto-area family could sue the Ontario government over the death of their daughter in an unlicensed daycare could set a legal precedent, but child-care advocates say more regulation is needed to make real changes.
Two-year-old Eva Ravikovich died in 2013 at a home in Vaughan, just north of Toronto. Unless an appeal is made, the Ontario Ministry of Education and the daycare operator will face trial in a $3.5-million lawsuit.
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Generally in Canada, the only restriction on unlicensed daycares is a limit on the number of children under supervision. No further regulation or oversight is required in any of the provinces or territories, which have jurisdiction over child care and education.
Today in Ontario, for example, an operator cannot look after more than five children under the age of 10, not including their own children.
A 'black hole'
"There's nothing to say what you should feed them, what you can do with them. That's true right across Canada," said Martha Friendly, executive director of the Childcare Resource and Research Unit, a policy research facility.
"It truly is a black hole."
In Ontario, the government relies on complaints to trigger the monitoring of unlicensed daycares. There are no regular inspections or standards to meet. Although deaths like Eva's are rare, "the problem is that it's a completely unknown situation," Friendly said.
Unlicensed providers only need to post an ad on a bulletin board or a website to start a business. There's no keeping track of who they are.
"I'm not taking an opinion of whether they are good or bad. But there's no public oversight," she said.
Friendly believes only a national child-care policy could address the gap. Even if there's no guarantee of a future national program, the "proverbial woman down the street" could be trained and licensed, Friendly said.
29 children, 14 dogs at daycare
The main legal restriction on unlicensed daycares, which are often run out of private homes and behind closed doors, is the number of children under supervision, which varies from province to province.
Meanwhile, regulated daycares face inspections and a number of licensing standards in areas such as nutrition and safety.
In Ontario at the time of Eva's death, there could legally be no more than five children under the age of 10 at an unlicensed daycare. When ministry staff later investigated the Vaughan home, they found 29 children and 14 dogs, and an injunction was obtained to shut it down. The cause of her death has not been released, and police are still investigating the case.
The lawsuit alleges several complaints of overcrowding were made about the Vaughan daycare before Eva's death, but were not properly investigated. None of the allegations have been tested in court.
On Monday, an Ontario judge dismissed the province's motion to block the Ravikovich lawsuit, which will now likely proceed to trial by next year, said the family's lawyer, Patrick Brown.
Brown believes it's the first case brought against a government ministry for a failure to carry out its duties to a child in an unlicensed daycare.
"When it went to court, there was no case law on this point," Brown said. If it's successful, other jurisdictions in Canada could look to this lawsuit in trying to prove a duty of care in similar situations, he said.
Lawsuit to be watched closely
The lawsuit could have a "profound impact" on the unlicensed system, said Don Giesbrecht, CEO of the Canadian Child Care Federation, a national advocacy group.
"The reality is that a lot of child care in Canada today is being done in an unregulated, unmonitored situation, and governments of all stripes have allowed this to go on," he said. "If I was a provincial or territorial government I would be watching this very closely.
"If I was an unlicensed provider I would be watching this very closely as well."
Under the new Child Care and Early Years Act, which replaced the Ontario Day Nurseries Act in late 2014 — but has yet to take effect — the penalty for violating the "five children" rule was increased to $250,000. Giesbrecht said he was pleased with the change, but other provinces have not followed suit.
"We want to see national leadership, national policy that recognizes the needs of the majority of Canadian families. Without it, provinces and territories will continue to move at whatever pace they want, in whatever direction they want, without the resources to make significant, fundamental changes to their systems."
Waiting lists and high costs
Each province has different rules for unlicensed daycares. In Saskatchewan, eight children are permitted, including the caregiver's own. In B.C., it's two, and in Manitoba, it's four, not including the provider's own children. In Newfoundland and Labrador, it's four.
A 2013 CBC Marketplace investigation showed that limits vary across the country. Compare them here.
According to CBC data and a 2010 federal report, the majority of children in daycare are placed in unregulated settings— usually someone's home — if they aren't cared for by a family member.
In Ontario, about 15 per cent of children under age 12 are cared for in licensed child-care facilities. In Manitoba, the figure is around 17 per cent; in Saskatchewan the number drops to 7.2 per cent, and in Quebec, 37.4 per cent are in licensed daycares.
'Disincentive to licensing'
In Ontario, as in all provinces, licensed daycare operators have to follow health and safety rules and are subject to inspections.
"This has resulted in a disincentive to licensing and led to an increase in the number of unlicensed caregivers," concluded a 2014 report by the Ontario ombudsman, which was prompted by the death of Eva Ravikovich and three others in a seven-month period between 2013 and 2014.
In addition, waiting lists and high costs have made licensed daycare inaccessible for many parents.
According to a 2014 report by the Canadian Centre for Policy Alternatives, Toronto is the most expensive city in Canada for licensed daycare, at $980 a month for one preschooler or $1,676 a month for infants. Parents in most other Canadian cities pay around $800 for a preschooler. In Winnipeg a month of care for an infant at a licensed centre was $651 last year. In St. John's the cost was $1,394.