Grandfathers Sexual Abuse
Antrobus v Antrobus 2015 BCCA 288 held that absent knowledge of wrongdoing against their child, bystander parents can only be held liable if they were wilfully blind to the wrongdoing, here of the child’s grandfather.
The Plaintiff alleged that she was sexually abused by her grandfather and brought a successful action against defendants, her mother and father, for damages for negligence and breach of fiduciary duty.
The parents appealed and the appeal was allowed and the action dismissed.
The Appeal Court held that the Trial judge’s findings that the defendants were not credible witnesses could not be sustained and Judgment could not survive those errors, as those findings were crucial in trial judge disbelieving defendants’ evidence concerning their knowledge of grandfather’s past.
Even absent those errors, the trial judge’s finding that defendants knew the grandfather was a pedophile did not withstand scrutiny as in 1960, not even the scientific community recognized that a person having the tendency to act sexually towards children would have that propensity for rest of their life.
In M. (M.) v. F. (R.), 101 B.C.A.C. 97 (B.C. C.A.), this Court discussed the factors that must be considered when a claim is brought against a bystander parent. In M. (M.), the action arose out of a series of sexual assaults inflicted on the plaintiff by the adult son of her foster parent. The claim against the foster mother was dismissed at trial and on appeal. The foundation of the action against the foster mother was, as in this case, negligence and breach of fiduciary duty. The action in negligence turned on the foreseeability of harm.
49 In analyzing the claim, the majority rejected the submission that the only question which could properly be considered was whether a reasonable person would have understood the risk. The Court concluded that, in determining the foreseeability of harm, the proper question is whether a reasonable person, having the background and capacity for understanding of the particular defendant, would have appreciated the risk (at para. 119). Absent actual knowledge of the wrongdoing, a bystander parent could only be held liable in negligence if he or she was willfully blind as to its existence.
50 The Court also noted that a defendant must be judged by the standards of the time in which the events took place. In M. (M.), the events had taken place in the 1970’s but the case had not been brought until 25 years later (at paras. 140-141). The Court found that the foster mother could not be faulted for not having knowledge and attitudes which might be expected at the time of the trial, but were not prevalent at the time that the alleged activity took place. This is a matter of some import in this case and I will return to it.
51 In regards to claims arising out of a parent’s breach of fiduciary duty, the leading authority is B. (K.L.) v. British Columbia, 2003 SCC 51 (S.C.C.) . In that case, the court began with the unquestioned fact that parents owe a fiduciary duty to their children. The question for determination was what actions and inactions might amount to a breach of that duty. In the course of its discussion, the court rejected that liability should be based on an obligation to always act in the best interests of a child. Rather, it found that a breach of fiduciary duty arises when parents put their interests ahead of their children. It explained as follows:
48 What then is the content of the parental fiduciary duty? This question returns us to the cases and the wrong at the heart of breaches of this duty. The traditional focus of breach of fiduciary duty is breach of trust, with the attendant emphasis on disloyalty and promotion of one’s own or others’ interests at the expense of the beneficiary’s interests. Parents stand in a relationship of trust and owe fiduciary duties to their children. But the unique focus of the parental fiduciary duty, as distinguished from other duties imposed on them by the law, is breach of trust. Different legal and equitable duties may arise from the same relationship and circumstances. Equity does not duplicate the common law causes of action, but supplements them. Where the conduct evinces breach of trust, it may extend liability, but only on that basis. As I wrote in Norberg v. Wynrib,  2 S.C.R. 226: “In negligence and contract the parties are taken to be independent and equal actors, concerned primarily with their own self-interest… [page 433] The essence of a fiduciary relationship, by contrast, is that one party exercises power on behalf of another and pledges himself or herself to act in the best interests of the other” (p. 272).
49 I have said that concern for the best interests of the child informs the parental fiduciary relationship, as La Forest J. noted in M. (K.) v. M. (H.), supra, at p. 65. But the duty imposed is to act loyally, and not to put one’s own or others’ interests ahead of the child’s in a manner that abuses the child’s trust. This explains the cases referred to above. The parent who exercises undue influence over the child in economic matters for his own gain has put his own interests ahead of the child’s, in a manner that abuses the child’s trust in him. The same may be said of the parent who uses a child for his sexual gratification or a parent who, wanting to avoid trouble for herself and her household, turns a blind eye to the abuse of a child by her spouse. The parent need not, as the Court of Appeal suggested in the case at bar, be consciously motivated by a desire for profit or personal advantage; nor does it have to be her own interests, rather than those of a third party, that she puts ahead of the child’s. It is rather a question of disloyalty — of putting someone’s interests ahead of the child’s in a manner that abuses the child’s trust. Negligence, even aggravated negligence, will not ground parental fiduciary liability unless it is associated with breach of trust in this sense.