A (LS) v A. ( WH) Estate 2014 BCSC 1910 ( Antrobus v Antrobus) discusses that the relationship of parent and child is fiduciary in nature, and that parents have an obligation to care for, protect and rear their children .
This line of authority was also established by the BC Court of Appeal in in M (M.) v F (R.) 1997 BCJ 2914.
The traditional focus of breach of fiduciary duty is breach of trust. A child is particularly vulnerable to her at the mercy of the fiduciary holding the discretion of power. Morelli v Morelli 2014 BCSC 106.
In the A (LS) v A. (WH) Estate case a 62-year-old female plaintiff was awarded in excess of $400,000 damages against her parents who knowingly allowed their child to be sexually abused by her grandfather and his friend as a child, who were both deceased by the time of trial.
The plaintiff’s evidence was accepted that her parents permitted her grandfather to have opportunity to sexually assault and sexually abuse or even though they knew the grandfather was a child molester .
The Court found such behavior to be a breach of the parent’s fiduciary duty owed to their, as well as negligent in their parental duties.
The court held that the parents owed their child a duty of care to take reasonable care to protect her from the danger that they knew of and that their failure to take such reasonable care was responsible for damages caused to the plaintiff daughter.
But for the negligence of the parents, the injuries that the plaintiff suffered would not have occurred.
The plaintiff was able to prove that the defendant’s negligence caused or materially contributed to her injuries.
The primary test for causation asks ” But for” the defendant’s negligence, would the plaintiff have suffered the injury.
The “but for” test recognizes that compensation for negligent conduct should only be made where there is a substantial connection between the injury and the defendant’s conduct. Hanke v Resurface Corp. 2007 SCC 7
The plaintiff also sued her father for the intentional infliction of harm or mental suffering, alleging that he verbally psychologically and physically abused her and intentionally inflicted mental suffering on her by inappropriate and cruel forms of discipline.
The elements of the tort of intentional infliction of mental suffering are set out in the Ontario Court of Appeal decision Prinzo v Baycrest Centre For Geriatric Care (2002) 60 O.R. (3d) 474 at paragraph 48, as follows:
1) flagrant or outrageous conduct;
2) calculated to produce harm; and
3) resulting in a visible and provable illness.
Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.