The court in Tseng v Tseng 2021 BCSC 27 ordered partition and sale of two condos in a contentious dispute.
The petitioner was a one half interest owner in both condos, and the estate of the deceased on an intestacy was the owner of the other halves.
The application was opposed by relatives, one being the 78-year-old widow of the deceased, who occupied one condo and the other was occupied by two of her three children, both of whom had mental health conditions and received disability income.
The petitioner wanted to sell the property in order to realize her assets and start a new life.
The court ordered sale of the property and found that the respondents had sufficient assets and would not face significant hardship if the units were sold, and thus there was no good reason not to order a sale of both units.
Unless there is good reason not to do so, the sale of property under s. 6 of the PPA must be ordered if a petitioner has at least a 50% ownership interest in the property. The court retains a broad and unfettered residual discretion under s. 6 of the PPA to refuse a sale of the property when required by the ends of justice: Sahlin v. The Nature Trust of British Columbia, Inc., 2011 BCCA 157at para. 24. While the respondents do not technically bear the burden of proof, for all practical purposes, they should adduce evidence to establish a good reason why the Property should not be sold: Bradwell v. Scott, 2000 BCCA 576at para. 35.
Hardship As a Defence
Personal hardship may be a sufficiently “good reason” not to order the sale of jointly owned property, but it must be significant and not merely an inconvenience: McRae v. Seymour Village Management Inc., 2014 BCSC 714at para. 42, quoting Bourgeault v. Walton,  B.C.J. No. 1957at para. 21 (S.C.); ter Borg v. Morris, 2012 BCSC 554at para. 23.
In McRae, several owners objected to a sale of their property on the basis they would be unable to find equivalent places to live and would suffer financial hardship.
The court held that personal or financial inconvenience is not a sufficient reason to prevent owners legitimately realising on their interests. The petitioner accepts that the Court maintains a broad discretion when assessing hardship, provided it is exercised judiciously: Sahlin, at para. 24.
Partition actions often have accompanying claims for occupational rent, repairs, mortgage interest, taxes, improvements, and the like, which may necessitate an accounting.
Accounting matters do not constitute a good reason to refuse a sale and could be addressed either at, or following a sale when the parties can present evidence on these issues if they were unable to reach agreement. It is open to the parties to direct a reference to the registrar to address these accounting issues. Zimmerman v Vega 2011 BC SC 757 at paragraphs 37 – 39
Fritz v Paton 2020 BCSC 1541 reviewed the law relating to claims for occupation rent, which is usually brought as part of the claim for partition and sale.
The claim was dismissed as there was no evidence that the plaintiff demanded access to or possession of the property and was refused by the occupying co-owner. In fact, the evidence was that the plaintiff left on her own volition.
I have seen several such claims brought without having firstly considered whether or not there has been “ouster”-a demand for use and occupancy of premises by one joint owner and the refusal of same by another co owner in possession.
At para. 28 of Bernard v. Bernard (1987), 12 B.C.L.R. (2d) 75 (S.C.), the court stated:
“unless there is ouster, an occupying owner will not be charged for his or her occupation unless he or she claims an allowance for his or her expenses. There is an obvious logic to this. It would be unfair to advance a claim for contributions towards the cost of maintaining lands whilst having the benefit of remaining on the lands for free. In such a case, a claim for occupation rent would have more validity”.
Occupation rent is a discretionary remedy which may be utilized to obtain justice and equity in appropriate circumstances. It is an exceptional remedy which should be used cautiously: Ross v. Ross, 2013 BCSC 1716at para. 47, Piderman v. Piderman, 2015 BCSC 475at para. 53.
As was stated by Madam Justice Humphries in Dacyshyn v. Semeniuk, 2007 BCSC 71at para. 36 a “claim for occupation rent is brought in equity. It is trite law that a person seeking equitable relief must come to the court with clean hands.”
In Donovan v. Donovan (1986), 7 B.C.L.R. (2d) 221 (S.C.), at para. 13, Justice Paris summarized the requirements for occupation rent as follows:
. . . (1) In the first instance, a co-tenant out of possession could not claim occupation rent because he normally had the right to go back into possession;
(2) However, such a claim would be considered by the court if he had been required to vacate or was ousted from the property.
(3) Furthermore, if the occupying tenant put forward a claim for expenditures made to the benefit of the property, . . . he was required as a condition of that equitable relief to submit to a claim for occupation rent…regardless of whether or not the non-resident tenant had vacated the property voluntarily.
The evidence establishes that Ms. Paton left the Property of her own volition in December 2013. There is also no evidence that Ms. Paton demanded access to or possession of the Property after February 2017 which was refused by Ms. Stilinovic or the Fritzes: see Bankruptcy of Kostiuk, Re, 2002 BCCA 410at para. 43.
The counterclaim for trespass was allowed as the purported spouse was not in lawful possession of the condominium after she had been lawfully asked to vacate by the trustee.
The court held that the trustee had authority to maintain the claim for damages once her license to occupy the premises ceased. The estate was entitled to damages for trespass based on the actual loss suffered, being carrying costs and lost interest on the sale proceeds of a lost sale.
The Law of Trespass
Fridman’s The Law of Torts in Canada ( 2010) at para. 41:
“Trespass is a wrong against the possession of land. The essence of the action is an unjustifiable interference with possession.”
There are some situations in which ownership may be the basis for maintaining an action. Townsview Properties LTD vs. son construction and equipment company, LTD (1974) 56 DLR ( 3d) 330:
“The owner has no right to sue in trespass if any other person was lawfully in possession of the land at the time of the trespass, since a mere right of property without possession is not sufficient to support the action. If, however, land is vacant, the owner has sufficient possession to sue in trespass.
Title may therefore be enough on some occasions for such an action. In other situations, bear possession is both necessary and sufficient. A plaintiff who can show neither title to land or actual possession that suffices to give him or her a right of action will not be able to sue.”
The court referred to Morgan v Pengelly Estate 2011 BCSC 1114, in which the court refused to order occupational rent because the claimant had no interest in the property, and instead awarded damages for trespass based on actual loss suffered.
Narwal v Narwal 2018 BCSC 1561 discusses the law relating to approval of the registrar’s inquiry and recommendation by a Supreme Court judge in what is known as a confirmation hearing.
It is a very common legal procedure to have matters involving such issues as accountings to be referred to a registrar of the Supreme Court to hold an inquiry and make a recommendation to the court as to the registrar’s findings. The registrars report is then typically referred to a Supreme Court judge to hold a confirmation hearing as to whether the Supreme Court judge will uphold or vary the registrar’s recommendation.
In this case there was a consent order that the registrar determine various issues involving the cost of construction, maintenance and repair of a house constructed by the plaintiffs on property, a determination of occupational rent, and investigation of incomes and monies received, and that upon receipt of the registrars report and recommendations the parties may apply for an order confirming the registrars report and recommendations regarding the foregoing.
At confirmation hearings the court may confirm, vary or disregard the recommendations of the registrar; alternatively, the court may remit the matter, or portion of it, back to the registrar for further inquiry or determination.
A judge reviewing the report and recommendation of a registrar is not exercising an appellate function; the court cannot assume that a registrars report must be accepted unless an error of law or principle is shown Kozma v Kozma (1985) 64 BCLR 355 (BCCA)
In considering the findings are registrar, the court is free to assess the findings in question and make its own findings. In this context and in the usual course, the court is reluctant to disturb findings of primary fact made by a registrar, including those relating to credibility Morgan v Edwards 2001 BCCA 29.
In other words confirmation hearings are not to be used as a second kick at the can Lowe Estate 2002 BCSC 831 at para. 17.
The leading authority on the ability of the court to interfere with the findings of a registrar is Larson v Larson (1983) 80 BCLR (2d) 303.
The court held in Larson at paragraphs 329 – 330 that findings of primary fact by registrar cannot be disputed. If the facts of change, new evidence can be admitted to prove the new fax which the trial judge, or the Chambers Judge of the references with regard to intro maintenance, must take into account in determining appropriate maintenance. This rule accords with the purpose of a registrars hearing: to hold an inquiry, determine the facts, and report them to the judge, so that he or she can hold a hearing and determine what is the appropriate maintenance to order, if any. At paragraph 330 the court set out the proper approach:
“the whole purpose of a reference has always been to investigate the basis of the allegations of fact in the pleadings and to report the findings from that investigation to the trial judge with suggestions or recommendations as to what the trial judge might order. The trial judge considers the primary reported facts, his argument, and reaches a conclusion of mixed fact and law, the amount, if any, of maintenance to be paid. If a registrar cannot find primary facts conclusively he is emasculated. If his findings are truly perverse the perversity will be evident on the record. The notes of the registrar will be available to establish that. Further evidence is not required. A finding of primary fact cannot be perverse in the absence of contrary evidence.”
Most of my clients at disinherited.com come from what generally might be described as dysfunctional families that ultimately result in a disinheritance for a number of complex reasons.
Part of my job as an estate litigation lawyer is to try and understand the complexity of the family from which my client has presented him or herself so that I can better both understand the client and the potential approach to resolution of their claim.
I occasionally am told by a client of that his or her parent was unable to express any feelings of love or warmth, especially to his or her children.
The emotional coldness may be caused by any number of factors, but could also be as a result of a depersonalization disorder from which approximately 1 and 100 people suffer.
I am certainly not a psychologist or psychiatrist, so I am not quick to put a label on what caused my client’s parental emotional abuse, and lack of love, but when I hear such a factual scenario, I sometimes think of this disorder, which results in the person suffering from a sense of disconnect from the world around them, their own body, and particularly those to which they should express love and affection.
As previously stated, a person’s inability to show love or affection may be caused by any number of emotional factors that result in a different label, such as a narcissistic personality disorder (which I have written about in separate blogs).
Depersonalization disorder, strictly speaking is where the person has persistent feelings of being disconnected or detached from oneself, and a feeling of loss or control over their thoughts or actions. Their actions are often described as “out of body”
They may perceive their surroundings as dreamlike, foggy and distorted. An actual diagnosis is very difficult due to the ambiguity of the language used when describing such episodes.
Although the disorder is a distortion of reality, it is not a form of psychosis as the person is able to distinguish between their own experiences and the objective reality of the real world.. In other words, they can distinguish between reality and fantasy.
The diagnosis typically is made when the symptoms cause family distress, or impair social or occupational functioning.
The depersonalization experienced is such that the person feels completely disconnected from their physical body and their loved ones, feeling detached from their own thoughts and emotions and living their lives as distant from others.
The exact cause of the depersonalization is not known, but childhood abuse is suspected, along with severe stress, major depressive disorder and hallucinogenic drugs.
Men and women appear to be diagnosed in equal numbers and onset is typically in the teenage years or early 20s.
The 6 most common signs of a depersonalization disorder are:
A feeling of no connection to the person that is seen in a mirror
a feeling of detachment from one’s environment- the feeling is a disconnection from the world, but also an unfamiliarity with individuals and inanimate objects and all surroundings
a feeling of being “ robot like”
a complete separation feeling from one’s body, as if wound up in cotton and the body is lifeless;
a feeling that one’s memories belong to someone else
knowing that you are not delusional, but that there is something wrong with the way you view the world
An order for occupational rent of $42000 per month was ordered against a son who had lived with his mother and who effused to vacate the estate asset home for ten months after his mother’s passing in Fileppelli Estate 2017 ONSC 4923.
The Court also ordered that the son vacate the property.
I agree with the views of Justice Daley in Bergmann v. McMahon, 2010 ONSC 993, at paras. 37-39, that occupation rent is akin to a claim for unjust enrichment. Mr. Filippelli was clearly enriched by being able to occupy Goldsboro and the Applicants were deprived of both the occupancy of and the use of the property as well as rental income that could have been generated from it. There was no juristic reason for the enrichment received by Mr. Filippelli. I note that Daley J. at para. 7 also found that the property taxes represented a liability of the estate.
21 Furthermore, as stated by Justice Low in Broos v. Broos, 2009 CanLII 68463 (Ont. S.C.) (at paras. 5 and 15), in a similar fact situation, where she found there was no justification for the respondent’s continued occupation of the estate property, she ordered that he vacate the property within 30 days. She found that by not paying compensation to the estate the respondent had denied the estate the opportunity to realize rental income and that he had benefited to the detriment of the beneficiaries. It does not appear that Low J. was asked to order occupation rent.
22 In the circumstances, as we are talking about rent going back to October 2016, I order that the occupation rent payable be $2,000 per month for a total of $20,000 for the period October 2016 to September 2017 inclusive. I also order that Mr. Filippelli pay the pest control services cost in the amount of $282.50 as clearly that was required because of the way in which he was maintaining (or I should say not maintaining) the property. The report from the City states that Goldsboro was not being kept free of rodents on the main floor cupboards and in the laundry room in the basement. This corroborates the evidence of the Applicants that Mr. Filippelli is not keeping the property clean.
Executors sometimes let friends or relatives live in estate property and not collect fair rent. The executor can be personally liable for lost rent.
Where an executor permits tenants to live rent-free in estate property and the court is satisfied that the property was capable of earning rent money for the estate during that period of time, the executor can be held responsible to the estate for the rental income that was lost as a result.
Sowa Estate, Re, 2003 ABQB 761 (Alta. Q.B.) per Veit J., at para. 3. stated
“I have concluded that Mr. Sowa should repay a total of $28,047 to the estate in relation to rent. The evidence before the Court is that, while he controlled the estate property, Michael Sowa granted tenants rent-free periods and rent reduction periods. While a private owner of property can dispose of that property however he chooses, a trustee holds for the benefit of others and must make prudent decisions concerning the property. In other words, if the property was capable of earning money for the estate, it should have been doing so. I am satisfied with the calculations which indicate that a total of $9,951.00 represents rent available, but lost, during the period. In the result, Mr. Sowa must repay a total of $28,047 representing rent received plus rent lost.”
Ajayi v Oziegbe2017 ONSC2732 discussed the concept of occupational rent where one co owner occupies a jointly owned property to the exclusion of the co owner, and the co owner seeks damages for the use of the property and the occupying party seeks competing damages for the costs of carrying on the property such as maintenance and upkeep.
Occupation Rent and Carrying Costs
101 This brings me to Mr. Ajayi’s claim for occupation rent. The principles relating to occupation rent are set out in Erb v. Erb, 2003 CanLII 2112 (ON SC), where the Court stated at paras. 73 and 74:
In evaluating the claim for occupation rent, the jurisprudence establishes that a court has jurisdiction to grant occupation rent where it would be equitable and reasonable to do so. The court should look to a number of factors, including when the claim was first raised, the duration of the occupancy, as well as other circumstances existing between the parties: McColl v. McColl (1995), 12 R.F.L. (4th) 449; McKinlay v. McKinlay (1996), 22 R.F.L. (4th) 212. I subscribe to the observations of J.W. Quinn J. as set forth in paragraph 57 of Higgins v. Higgins,  O.J. No. 3011. I think the case of Adams v. Adams (2001), 15 R.F.L. (5th) 1, relied upon by the defendant, to have little application to this case in that there the amounts paid by the husband were “prepayments” on the mortgage and were agreed by him to have been paid voluntarily for the family’s benefit. The expenses paid by the plaintiff in this case were not of that type or for that purpose.
I accept the defendant’s submission, supported as it is by remarks in Higgins, supra that as a basic proposition there should be an allowance for occupation rent if there is a claim for expenses during occupancy and prior to sale. The evaluation of those competing interests has to be decided based on all the circumstances in the case.
102 In resisting a claim for occupation rent, Ms. Oziegbe points to the decision of Horkins J. in B(J) v. M.(D.), 2014 ONSC 7410, where she states at para. 152:
The facts of this case do not support the respondent’s claim for occupancy rent. The respondent’s inability to use the matrimonial home arose from his criminal conduct when he assaulted the applicant. The applicant has been solely responsible for all of the household expenses since separation. It is not reasonable or equitable to award occupation rent given these facts. The request is denied.
103 When these decisions are reviewed, it is clear that the Court has the ability to consider the equities of the case in deciding whether to order occupation rent. The conduct of Mr. Ajayi in assaulting Ms. Oziegbe is a factor that supports denying Mr. Ajayi’s claim for occupation rent. However, I am of the view that this factor is outweighed by the factors in favour of granting occupation rent. These factors are:
a) The title to half the property should have been with Mr. Ajayi, and his equity has been tied up in the home, preventing him from investing it elsewhere.
b) Mr. Ajayi is responsible for the carrying costs for the home. As noted by Glithero J. in Erb, supra, where there is a claim for expenses there should be an allowance for occupation rent.
c) The delay in Mr. Ajayi obtaining his equity between September of 2015 and now is as a result of Ms. Oziegbe defending this case, and claiming that there was no resulting trust.
104 The parties have agreed on the amount that should be charged for occupation rent, and I have included that in my calculations in Appendix “1”. When the carrying costs are set off against the occupation rent, then Mr. Ajayi owes Ms. Oziegbe an adjustment of $5,773.44, which will be paid out of the proceeds from the house.
At common laws a claim for occupational rent can be brought where one owner is ousted from the property by another owner Re Johnston estate 2017 BCSC 272 where the court stated:
At common law, a claim for occupation rent may be brought by a co-tenant who has been ousted from the property. An ouster brings to an end to one of the tenant’s right to share the benefit of occupation: it exposes the remaining tenant to liability to indemnity the ousted tenant for the loss of that benefit. In the absence of ouster there is generally no such liability. It cannot be said that a tenant in possession has been unjustly enriched by sole occupation of premises so long as each tenant has an undivided right to the full use of the property. As long as there is no impediment to the exercise of that right by either tenant , no claim for indemnity arises from the abandonment of the property by one of them. (LMR v JFR 2010 BCSC 363)
17 “It is clear from the case of L.M.R. v. J.F.R., 2010 BCSC 363, that a claim for occupation rent can be brought at common law by a co-tenant who has been ousted from a property, because the ouster brings to an end one tenant’s right to share in the benefit of occupation. There is generally no liability to pay occupation rent where there is no ouster.”
In the case of Kostiuk, Re, 2002 BCCA 410, the BC Court of Appeal addressed the issue of conduct that constitutes ouster and the burden of proving ouster. The court noted that:
43 The fact that a co-owner had sole possession does not prove ouster because on co-owner is entitled to be in possession of the entirety, but if possession is demanded and refused, on the grounds that the co-owner in possession claims the whole property as his own, “such possession is adverse and ouster enough” (Doe v. Prosser (1774) 1 Cowp. 217 [at 218], 98 E.R. 1052 [at 1053]). The co-owner alleging ouster must prove that the other co-owner is in possession with the intention of ousting her.
Re Kostiuk followed Dennis v McDonald affirmed (1981) 2 WLR 275 ( C.A) which adopted the definition of “ousted” as stated in M v H ( 1994) 17 ).R. (3d) at page 133 ” the act of wrongfully putting one out of rightful possession of his or her property”.
Dennis v MacDonald ( 1981) 1 WLR 810 , affirmed (1981) 2 WLR 275 (CA) which held in part”:
–“Only in cases where the tenants in common not in occupation were in a position to enjoy their right to occupy but chose not to do voluntarily , and were not excluded by any relevant factor, would the tenant in common in occupation be entitled to do free of liability to pay an occupation rent”.
Re Kostiuk stated at paragraph 43- ” The fact that a co owner had sole possession does not prove ouster because one co-owner si entitled to be in possession of the entirety, but if possession is demanded and refused , on the grounds that the co-owner in possession claims the whole property as his own, ” such possession is adverse and ouster enough”. The co-owner alleging ouster must prove that the other co-owner is in possession with the intention of ousting her ( Allison v smith) ( 1877) 17 NBR 199 ( C.A)
There is one exception to that rule: occupation rent may be set off against a claim made by a tenant in occupation for expenses associated with the occupation . It would be inequitable to permit a tenant in possession to enjoy undivided possession while seeking a division of the expenses associated with that possession. LMR v JFR 2010 BCSC 363
Scapegoat Child Sues Parents and Wins. I came across a case from 1994 where a 20 year old plaintiff who was abused, neglected and generally “scape- goated “throughout his childhood successfully sued his parents for their infliction of years of physical and mental abuse upon him.
He was awarded $125,000 general damages , $50,000 punitive damages , and loss of earning potential all totalling $260,000
The Judge did such a good job of stating the abuse and testimony of the witnesses that I am reproducing the case in it’s entirety below:
Counsel: D. Stuart Gray and T. Clifford Chiu, for plaintiff.
Ronald F. MacIsaac and A. Daniel G. MacIsaac, for defendants.
Subject: Civil Practice and Procedure; Torts; Family
Family Law — Status and capacities of children — Torts — Child’s action against tortfeasor — General
Torts — Trespass — Trespass to person — Assault and battery
Torts — Assault and battery — Liability in particular cases — Plaintiff’s parents subjecting him to years of physical and mental abuse during childhood — Plaintiff recovering damages of $260,000 in action for damages for assault, battery, false imprisonment and intentional infliction of mental suffering.
Damages — Personal injuries — Pecuniary damages — Loss of future earnings and benefits — Loss of earning capacity — Plaintiff’s parents subjecting him to years of physical and mental abuse during childhood — Plaintiff experiencing work limitations and delayed training and workforce entry stemming from abuse — Plaintiff recovering damages for loss of earning capacity of $125,000.
Damages — Personal injuries — Psychological injuries — Plaintiff’s parents subjecting him to years of physical and mental abuse during childhood — Plaintiff recovering damages of $260,000 in action for damages for assault, battery, false imprisonment and intentional infliction of mental suffering.
Damages — Punitive damages — Plaintiff’s parents subjecting him to years of physical and mental abuse during childhood — Plaintiff recovering damages of $260,000 in action for damages for assault, battery, false imprisonment and intentional infliction of mental suffering, including punitive damages of $50,000.
Torts — False imprisonment — Liability in particular cases — Plaintiff’s parents subjecting him to years of physical and mental abuse during childhood — Plaintiff recovering damages of $260,000 in action for damages for assault, battery, false imprisonment and intentional infliction of mental suffering.
Torts — Torts generally — Children — Duty owed to children — Plaintiff’s parents subjecting him to years of physical and mental abuse during childhood — Plaintiff recovering damages of $260,000 in action for damages for assault, battery, false imprisonment and intentional infliction of mental suffering.
The plaintiff was the sixth of nine children. As a child he was diagnosed as hyperactive and placed on a sugar-free diet. He was taken into care by child welfare authorities in 1984 at age 12. Thereafter he reported that his parents had abused him for years. He said they regularly struck him with a belt or wooden paddle as punishment. He was also confined for periods of days or weeks to his locked room. If he did not finish a meal he was forced to eat the same food again at the next meal. The plaintiff’s parents gradually removed all the furniture from his room as punishment for eating candy they had placed in the room. They also berated him for his alleged stupidity and character defects. The plaintiff did poorly at school, became troublesome, and stole from his eventual foster parents. He was eventually convicted of robbery and attempted murder. Teachers and school officials reported that while living at home the plaintiff was poorly-dressed, appeared afraid of his parents and showed marks of physical abuse. The mother had herself been sexually abused both as a child and by a therapist when she was in university. Over the years she had periodically been addicted to medications, and she claimed to have little memory of the year before the plaintiff was taken into care. She said she believed corporal punishment was sometimes appropriate, and confirmed that the plaintiff had been hit with the wooden paddle. She described the plaintiff as an extremely difficult child and denied any abuse. The plaintiff’s father admitted having administered “insignificant” corporal punishment to the plaintiff and the other children, but claimed otherwise to have left disciplinary matters to his wife. He had been separated from his wife during the worst period of abuse in 1983 and 1984. A psychiatrist who treated the plaintiff reported that the childhood abuse had resulted in delayed emotional, intellectual and social development, poor self-esteem and an inability to trust other people. The plaintiff was at risk of further episodes of depression and psychiatric problems. The plaintiff sued his parents for damages for assault, battery, false imprisonment, intentional infliction of mental suffering and, in the alternative, breach of fiduciary duty.
Judgment for plaintiff for $260,000.
The plaintiff was a credible witness, even after making allowances for exaggeration and inability to recollect accurately. The evidence of the mother, on the other hand, was contradicted by that of the other witnesses and by her own sworn testimony. Her evidence was unreliable, as was that of the father. The father’s professed “passivity” in the area of discipline was no defence. A parent is under a legal duty to take reasonable steps to protect a child from known or reasonably foreseeable harm. The father was aware of the mother’s history, her state of health and the disciplinary methods she was using. He was either insensitive or wilfully blind to her vulnerability to loss of control, and had facilitated the continuing physical abuse of the plaintiff. Both defendants were guilty of assault, battery, intentional infliction of mental suffering and false imprisonment. The plaintiff was entitled to $85,000 in non-pecuniary and aggravated damages for the loss of his childhood. His ability to earn income was affected by his learning disorder and hyperactivity, by the diabetes from which he now suffered, and by his criminal record. The evidence indicated that he would have fallen within the same potential income bracket he was in at the trial date even if the abuse had not occurred, but he would likely suffer increased work limitations due to the abuse. He had also suffered delays in his training and education and a postponed entry into the workforce, again due in part to the abuse. He was entitled to damages for loss of future earning capacity of $125,000. Additionally, the plaintiff was entitled to punitive damages of $50,000 for the defendants’ breach of trust and lack of remorse.
Young Offenders Act, R.S.C. 1985, c. Y-1 — referred to
British Colulmbia, Rules of Court (1990)
App. Breferred to
Action for damages for assault, battery, false imprisonment and intentional infliction of mental suffering.
1 The plaintiff brings this action against his parents, alleging assault, battery, false imprisonment, intentional infliction of mental suffering and, in the alternative, breach of fiduciary duty.
2 The plaintiff alleges he suffered physical and emotional abuse at the hands of his parents during the years he lived with them and as a consequence he claims general, special, punitive and aggravated damages. Alternatively, he claims compensation from them arising from the breach of their fiduciary duty to care properly for him. With respect to the damage claim, evidence was led as to potential wage loss and impaired future earning capacity.
3 The defendants, both highly educated professionals, take issue with much of the evidence led in the plaintiff’s case and submit that while their family was a dysfunctional one, the nature and extent of the abuse as alleged by the plaintiff is exaggerated and in many respects untrue.
4 The defendants’ position, taken in their pleadings, on discovery, and reflected in the cross-examination of the plaintiff and his witnesses, may be generally described as following the gist of the opinion offered by Dr. Hoffer in his report dated March 29, 1993, namely, that the plaintiff was an extraordinarily difficult child and their parenting efforts were appropriate.
5 At trial they maintained that position and added to it the proposition that any abuse suffered by the plaintiff was for a brief period in 1983-1984, during which time the father for the most part was out of the family home and the mother, a victim of abuse herself, was drug addicted, periodically hospitalized, and irrational to the point of not being responsible for her actions.
6 The defendants argue they cannot be held responsible for the plaintiff’s present state or liable in damages. Alternatively, they argue any damage award must be exceedingly low because at the time this action was started the family, including the plaintiff, was involved in a process of reconciliation through therapy under the direction of Dr. Ney. The defendants say they were willing to support the plaintiff by funding his ongoing education and therapy.
7 All parties testified, as did five of the plaintiff’s siblings. Professional witnesses testified, including: 2 social workers; Dr. Briggs, the plaintiff’s present psychiatrist; Dr. Ney, a psychiatrist involved in the treatment of the whole family; Dr. Hoffer, a psychiatrist who treated the plaintiff as a young boy; the principal of the elementary school the plaintiff attended; and teachers in that school. Lay people involved with this family from time to time also gave evidence.
8 At the time of trial the plaintiff was 20 years old. He is the sixth of nine children born into a profoundly troubled family. I will describe briefly the nine children of this family: M., born 1965, left home at age 16 and has since lived on his own; P., born 1967, presently attending the University of Alberta; J., born 1968, a nurse living in Victoria; Ma., born 1969, died of cancer at age 19 after a lengthy illness; R., born 1970 with cerebral palsy, is attending the University of Victoria and living with her former foster parents; the plaintiff, born 1972; T., age 17 at the time of trial, living at home and attending high school; A., age 15 at the time of trial and living in a foster home; and N., age 9, living at home.
9 As well as the nine live births the mother had at least three miscarriages. Various of the children lived in foster homes from time to time. One child, as an adolescent, was the victim of a homosexual rape. One child suffered from anorexia and was suicidal as an adolescent. Various of these children suffer from eczema and asthma.
10 The evidence confirms the parents experienced marital difficulties from time to time and on occasion separated. In 1975 the mother started a divorce action which was abandoned. In 1983 she started another divorce action which was also abandoned.
11 The plaintiff lived at home until August 14, 1984 when, at the age of 12, he was taken into care by the Superintendent of Child Welfare. He did not live in the family home thereafter. He was placed in foster homes as a temporary ward of the Superintendent and eventually, in 1989, he was made a permanent ward.
12 In 1990 the plaintiff was convicted of robbery and attempted murder. He was sentenced to 18 months closed custody and 18 months probation. He spent 1 year in custody at the Juvenile Detention Centre. At the time of trial he was serving the balance of his sentence and residing in a residential treatment home.
13 At the time the plaintiff was charged criminally, the Crown considered an application to raise him to adult court. Consequently, a number of reports were prepared by various professionals, including a psychiatric social worker and a psychiatrist, which reports are in evidence before me. Following the preparation of these reports the Crown abandoned its application and the plaintiff was tried under the Young Offenders Act.
14 At the time of trial the plaintiff was unemployed. He had completed an employment program through a community service organization while still serving his sentence. He completed some subjects in Grades 9 and 10 and was not in school. Over the last few years he has held short-term jobs and has some aspirations to train as a hairdresser.
15 The defendants, at the time of trial, were both working in a professional capacity. They were living together, with two of their children as earlier referred to.
16 According to the plaintiff he was an active young child who had difficulty completing tasks and concentrating, particularly in school. He has been told he was diagnosed as being hyperactive. At the age of 5 years he attended the G.R. Pearkes Clinic for Handicapped Children (as it was then called) for some two years.
17 The first report from the G.R. Pearkes Clinic is dated October 7, 1977. The reason for his referral is noted on that report as “poor speech — hyperactivity”. He was recommended for speech and occupational therapy and psychological assessment. In the first assessment the testing showed the plaintiff had limited motivation and attention. His distractibility and hyperactivity were noted and a program of ongoing attendance at the Pearkes Clinic was recommended. He attended the clinic’s pre-school program in the Fall of 1977.
18 The second assessment, done one year later, notes a continued short attention span with a continued improvement in test results and in overall behaviour. The conclusion then reached is that he was “essentially hindered by impulsivity and a short attention span and would work best in a structured program”. An assessment by the Pearkes Clinic in April, 1979, shows average intellectual ability and average academic achievement for his age. This assessment notes his distractibility and impulsiveness would make functioning in a conventional classroom difficult for him. The recommendation was that he could function in a regular public school if the right setting could be found, i.e., a small group setting with minimum distractions. The plaintiff did attend public school and evidence was given by two teachers and the principal of the Pacific Christian School where he attended for his elementary education.
19 The plaintiff described his life in his family home as being one of mistreatment, isolation and loneliness. He said that while living at home he was fearful, confused, sad and depressed. He said he was punished daily. The corporal punishment, he said, consisted of being struck with a wooden paddle, a leather belt and a feather duster on a bamboo handle. He was also locked in his room and was verbally abused.
20 The plaintiff testified in some detail regarding the corporal punishment which he said began at an early age. His mother, or his two older siblings at her instigation, would have him place his hands on a counter. They would then repeatedly strike his hands with a wooden paddle which was about three-quarters of an inch thick. He described being struck with the paddle 15 or 20 times on each occasion, depending on the nature of his transgressions. He said the paddle was sometimes used to hit him on the bum and thighs.
21 The plaintiff described the corporal punishment he received at the hands of his father as being struck with a leather belt, or the bamboo handle of a feather duster. When the belt or the bamboo handle were used he was told to lie down and to pull down his pants and underwear; on these occasions he recalls being hit at least 10 times. This punishment often left the plaintiff with bruises, welts and bumps. His evidence was that he was often hit until he stopped crying or screaming.
22 According to his evidence, he was confined to his room for periods of time starting at age 7 or 8 and, as the years went on, he spent increasingly more time locked in his room. Early on he opened the door and walked out and thereafter a lock was installed. When he learned to pick the lock and let himself out the door was locked from the outside. In the last year, prior to apprehension in 1984, he was sometimes not let out for meals. Food was passed in to him to eat in his room. In some instances, when he called out or banged on the door because of his need to use the bathroom, he was taken out of his room, usually by an older sibling or siblings, and a paper bag was put over his head for the walk to and from the bathroom. Occasionally he was unable to get to the bathroom and urinated in his clothing. He describes using a hole in the wall (which he said was made by one of the older siblings throwing him against the wall while beating him up) in which to urinate and defecate. He described his father as being extremely angry with him for using the hole in the wall in this fashion. His father directed him to clean it out, while striking him as he removed each handful of waste. At one point a laundry bucket was placed in his room which he used as a toilet.
23 He recalls spending most weekends in his room, particularly in the last year he lived at home. He says that at the time he was apprehended by a social worker he had been locked in that room for weeks.
24 The plaintiff describes much conflict with his parents around the issue of food consumption when he was 6 years old. Dr. Hoffer had recommended he be placed on a sugar-free diet. He describes being allowed to eat rice, whole wheat, etc., which he clearly did not like. He was expected to eat what was put in front of him and occasionally was given a specific amount of time to eat the food. If he did not comply, the same food was served to him at successive meal times.
25 The plaintiff says the younger children were directed to hide candy in his room. The pieces of candy were counted at the time they were hidden. His mother would then periodically search his room and if any of the candy was missing a piece of furniture was removed from his room. Eventually there was no furniture left in his basement room, which was described by one witness as “windowless and about the size of the average bathroom”.
26 The plaintiff gave evidence that he once ran away from school and explained that he was really trying to run away from home rather than school. He said he was strapped at school for this infraction and when he got home he was “given the belt”, a cold bath and was locked in his room without dinner.
27 He recounted being drilled in math by his parents and particularly recalls being given lists of what he considered to be “hard questions” by his father, who punished him when he completed the list with errors. He recalls his mother telling him that he was dumb and that there was little he could do. He was called a “con man” and a “manipulator” and told that he was “useless”. At times he was told the devil made him misbehave.
28 According to the plaintiff his parents sometimes treated him well. He recalls going on some family outings and travelling up-island and to the mainland with his father periodically. He found their inconsistent attitude towards him, at times “being nice”, at other times angry and abusive, to be confusing.
29 The plaintiff agreed that periodically he was troublesome at school and as a result was isolated from the rest of the class. He admits stealing other children’s lunches and going through the garbage cans in search of food.
30 Once in care and living in foster homes he left the restrictive diet and ate what he wanted. Within two years he developed diabetes. He agrees that in foster care he periodically stole money and alcohol from foster parents. He agrees he manipulated his diet so as to require hospitalization and treatment for the diabetes. This was an attention-getting device on his part. From time to time his peer group consisted of young people in trouble with the law. His troubled behaviour resulted in his attendance at Jack Ledger House, a residential program for troubled youth. He eventually found himself before the criminal courts, charged and convicted of a brutal and serious crime.
31 For the most part the plaintiff struck me as a candid and truthful witness. In describing himself he said, “I was not the best kid in the world but I was not the worst”. He is an articulate young man. He was rather eerily detached when recounting the painful experiences he underwent while living in his family home. Assessing his credibility I have taken into account the fact that he testified with respect to events which took place more than 8 years ago. I have also taken into account the possibility of exaggeration and the potential for a youthful mind to mis judge time, particularly in regard to his statements that he was “punished every day” or “locked in my room for weeks” or “locked in my room every weekend”. Making allowances for these factors, I found the plaintiff to be a credible witness. Apart from the testimony of the defendants, much of what he said was supported by other witnesses.
32 Mr. Sutton, the principal of the independent school the plaintiff and his siblings attended for elementary education, gave evidence. Mr. Sutton particularly recalls the plaintiff during his Grade 5 year (approximately 1982). The plaintiff was frequently sent to the principal’s office as a result of his disruptive behaviour. Mr. Sutton clearly remembers the plaintiff was not as well dressed as his siblings. His recollection is that generally the other children of this family were “well turned out” but the plaintiff was not. He often smelled of urine. He often appeared scared. He stole food from other students’ lunches and took food from the garbage. Mr. Sutton was aware of the mother’s request of the teachers to provide her with a daily report of the plaintiff’s behaviour. With Mr. Sutton’s permission this procedure was discontinued as a result of the concern the teachers expressed that the plaintiff was being punished at home. At one time the classroom teacher dealt with the plaintiff’s inappropriate or disruptive behaviour in class by isolating him. When it became clear to the staff that the plaintiff was fearful of his siblings reporting this fact to his parents, the practice was discontinued.
33 Mr. Sutton describes seeing the plaintiff in March, 1984, following a report from Ms. Welle, the plaintiff’s teacher. One of the plaintiff’s fingers was bent and swollen and he had bruises on his arm. When he lifted the child’s shirt Mr. Sutton saw bruising on his body. The plaintiff told Mr. Sutton he had been hit by his mother. As a result Mr. Sutton reported the matter to the Ministry of Social Services and Housing. He received no contact from the parents as a result of this report.
34 The plaintiff’s 22-year-old sister, R., gave evidence. She attends the University of Victoria and lives with the family who took her as a foster child at age 13 years. She confirmed that her mother, and two older siblings at the mother’s instigation, hit the plaintiff with a wooden paddle. She saw his hands swollen periodically. She saw red marks and bruises. She confirmed he was often hit at least ten times and that the number of hits was related to the transgression, for example, six hits for lying. She confirms much of the plaintiff’s evidence regarding his diet.
35 R. confirmed that it was her job to watch the plaintiff carefully at school and to report at home on his behaviour. She admitted with ob vious sadness and regret that she sometimes exaggerated the plaintiff’s negative behaviour when reporting to her mother. When asked why, she said if her mother’s attention was focused on the plaintiff the rest of the children felt they would not be singled out by her for punishment. “It was almost as though she needed to get rid of tension. He was the easiest one to get mad at.”She saw the plaintiff being hit by his father with the handle of the bamboo duster and with a leather belt. She once saw the plaintiff being taken to the bathroom with a paper bag over his head. Her description of the last year the plaintiff spent in the home accords with that of the plaintiff, that is, an endless cycle of ongoing physical punishment and being locked in his room frequently and for long periods of time. She confirmed the plaintiff’s evidence regarding the candy hidden in his room. She was a dignified, articulate and credible witness; if anything, her evidence was understated.
36 The plaintiff’s sister, J., aged 25 and a registered nurse, gave evidence in the defendants’ case, before the defendants testified themselves. She courageously described the family dynamics, parental discipline, the plaintiff’s behaviour, and her mother’s erratic and bizarre behaviour, particularly in 1983-84. Her evidence supports many of the allegations made by the plaintiff, as does the evidence of her brother P.The evidence given by J. and P. in some respects differed markedly from the evidence given by the mother at her examination for discovery. When cross-examined these inconsistencies were put to the defendant mother and her general response was she had little recollection of the events from the Fall of 1993 to August, 1984, because she was addicted to drugs and was very ill. She said that, until she heard J. and P. testify, she truly believed that many of the plaintiff’s allegations were untrue.
37 J. confirmed the plaintiff was hit by his mother with a wooden paddle. She confirmed that she herself sometimes hit the plaintiff, both with and without her mother’s direction. She confirmed their older brother was directed by their mother “Hit him [the plaintiff] as hard as you can.”
38 J. confirmed the father hit the plaintiff with a leather belt. She said both she and an older brother were also “belted” by their father for certain transgressions. When she was about 12 years old she recalls being struck with the belt to the extent of barely being able to walk. She confirmed the plaintiff’s evidence regarding meals, that he was given so many minutes to eat breakfast, so many minutes to eat dinner, etc. She confirmed that on occasion whatever he did not eat for one meal was presented to him at successive meals. She confirmed that candies were hidden in the plaintiff’s room and that if any were missing the plaintiff was physically punished. She confirmed the plaintiff was regularly locked in his room as a form of punishment. She described the father asking the plaintiff math questions while driving in the car and when he gave a wrong answer the father struck the plaintiff’s head. She described her mother becoming increasingly irrational in 1983-84 and that she was ill, thin and using drugs and that during this period of time the mother’s discipline, particularly with respect to the plaintiff, was out of control. The mother told the other children the plaintiff was “demon possessed”. J. confirmed the plaintiff’s door was eventually locked from the outside and that he was taken to the bathroom on occasion by one of the other children with a paper bag over his head. She confirmed the laundry bucket was placed in the plaintiff’s bedroom. She confirmed her father hit the plaintiff with the bamboo stick until there were welts on his body. She saw bruises on his backside and hands.
39 According to her evidence, in the year before the plaintiff was taken into care, he was treated more harshly than previously by his parents, mostly by his mother. She said their father tended to be more passive and “let Mom carry on with what she was doing”. Her evidence was their father was a more aggressive disciplinarian “when we were younger” and described an incident in the car, with the father driving, when in a fit of rage he threw a coffee can, hitting one of the children in the head. That child was taken to emergency and required stitches. Thereafter, according to J., the father was generally less aggressive. She, too, was a dignified and truthful witness.
40 P. confirmed that during the winter of 1983-84 “things were really crazy around the house”. He knows now but did not know then that his mother was having drug addiction problems. He confirmed that starting in the Spring of 1984 until the time he was taken into care the plaintiff was locked in his room every day, that meals were occasionally taken to him in his room. He recalls there being no furniture in his room. Prior to this time the plaintiff was hit occasionally with a wooden paddle but during this time the frequency increased to what P. described as the plaintiff being hit daily with the paddle. He recalls seeing red marks, swelling and bruising on the plaintiff’s body. He admitted that, at the direction of his mother, he hit the plaintiff with the paddle as hard as he could. He has a recollection of seeing the plaintiff with a paper bag over his head and of a hole in the wall of the plaintiff’s room that the plaintiff used as a toilet. He remembers his father striking the older children, including himself, with the belt on occasions but cannot remember if it was used on the plaintiff. He, like the others of the plaintiff’s siblings who gave evi dence, was clearly torn between loyalties to the family as a whole and his parents in particular and the fact that he was under oath. His reluctance in giving testimony was obvious. He was credible, albeit somewhat vague as to details regarding the plaintiff’s treatment in the home.
41 Little weight can be given to the evidence of the plaintiff’s 17-year-old brother, given his young age when the plaintiff was taken into care. He lives at home with his parents and, as became obvious, much of the information he had about the plaintiff’s history and treatment in the home came from his parents.
42 The plaintiff’s 15-year-old sister had little to add, given she was 7 years old when the plaintiff was taken from the home. For the last two years she has lived in a foster home. Overcome by emotion she was unable to continue her evidence.
43 Dr. Hoffer, a psychiatrist, known for treating psychiatric disorders through diet and vitamin therapy, saw the plaintiff at the age of 6 as a result of what was then referred to as his “hyperactivity”. Dr. Hoffer prescribed a sugar-free diet which the parents thereafter maintained. He was called in the defendants’ case.
44 In March, 1993, in preparation for this trial, Dr. Hoffer interviewed the plaintiff, his sister J., and his brother T. One and one half years earlier, he interviewed the defendants. He also reviewed a number of the psychiatric reports and reports of social workers, together with affidavits of siblings previously prepared. In his report dated March 3, 1993, Dr. Hoffer concluded as follows:
In my opinion, [the plaintiff] was a sick boy with attention deficit disorder, and severe hyperactivity with perceptual disturbances. He has misinterpreted the behaviour of his family toward him in a paranoid way, and can not remember or has a selective memory of his own role in the events. [A.]’s parents applied what they considered to be appropriate disciplinary behaviour as they had to the other children, and which they had themselves experienced as children, and they did not abuse [A.] or have any intention of abusing him.
45 The plaintiff’s mother is indeed a tragic figure. She describes a most unhappy childhood; of being a victim of sexual abuse in her own home. She describes being raped by her therapist when she was a university student. She had nine children and three pregnancies which ended in miscarriages. There is no question she was the parent primarily responsible for raising the children and running the household, a challenging role to fulfil considering the number of children, their many and varied health difficulties, a marriage which was from time to time troubled, and a professional career which necessarily had to be placed on hold from time to time. She turned to religion and became a Christian in her mid-thirties.
46 She describes the plaintiff as being very active from an early age, “always on the go”. At approximately the age of 5 or 6 he became more difficult to handle, impulsive, destructive with toys, and untruthful. Once in regular public school he had a short attention span and eventually, at age 6, was seen by Dr. Hoffer who put him on a restricted and sugar-free diet. She agreed his hyperactivity improved with the diet but that he still had difficulty focusing.
47 Over the years the defendant mother suffered from a variety of health problems. She periodically became drug addicted, according to her evidence initially as a result of medication prescribed to her during one of her pregnancies. To her credit, at the time of trial she had been drug-free for 4 years.
48 She was in a hospital in Vancouver when the plaintiff was taken into care in August, 1984. She has very little recollection of events from the Fall of 1983 to August 1984. She attributed her lack of memory to the fact she was on drugs. She herself has little or no recollection of the events the plaintiff’s older siblings describe.
49 Overall, the defendant mother says the plaintiff was treated no differently from the other children in the family. In her opinion, children need discipline and corporal punishment is often appropriate discipline, depending on the circumstances. Her view is that prior to 1983-84 the plaintiff was spanked infrequently. She describes her manner of discipline over the years as tending toward sending the children to their rooms or taking away privileges rather than corporal punishment. She agreed there was a wooden paddle in the home which was used periodically to spank the children. She described the paddle as having been made for the family by a Christian Brother who used it to discipline his own children. She described the family, including the plaintiff, as having been in therapy with Dr. Ney in 1991-92.
50 She confirmed that both her husband and herself believe that all of the children are owed an education. They were always willing to assist the plaintiff in obtaining his desired level of education, including post-secondary. She confirmed that in her Will and that of her husband the plaintiff is treated the same as the other children. She describes the plaintiff as always having been impulsive. She says he has never shown, and does not presently show, that he can take responsibility for his actions. It is her opinion that giving the plaintiff money is not in his best interests and that money will not help him deal with the problems he has with any of the family members, including herself. The preferable alternative to this litigation in dealing with the plaintiff’s difficulties was to return to family therapy with Dr. Ney.
51 This defendant’s credibility was severely tested in cross-examination. When asked about the incident when the plaintiff ran away from school, she was clear that the school administration asked her permission to strap the plaintiff. She was adamant that she never asked the school to strap the plaintiff on this or any other occasion. Ms. Welle, the plaintiff’s teacher, was called in rebuttal. She clearly recalled the day the plaintiff ran away from school. According to Ms. Welle, the administrator whom the defendant mother says strapped the plaintiff was not present on that day. She described a meeting which took place with two teachers and the plaintiff’s mother. She says the mother asked for the child to be strapped. I accept Ms. Welle’s evidence. Sadly poignant is the fact that this teacher, a relative stranger to the plaintiff, felt it was inappropriate for this child to be strapped in these circumstances, yet his mother considered this form of punishment appropriate and necessary. Ms. Welle recalls the incident because she felt she had somehow betrayed the plaintiff’s trust in her. She says that corporal punishment was used by this independent school on very rare occasions.
52 Evidence was given by Ms. Stadt. She was a substitute teacher at the school the children attended. In August, 1984 she went to the family home, knowing the defendant mother was in hospital. The children told her the plaintiff was locked in his room. She asked to see the plaintiff and recalls having to be let into the room since it was locked. There was no furniture in the room and it smelled of urine. Thereafter, Ms. Stadt made contact with others, and a social worker, Mark Bissley, who had knowledge of this family, went to the home. When he was eventually let into the house he asked to be shown where the plaintiff was. Mr. Bissley was taken to the basement room. One of the older children unlocked the door. He describes the scene: “No lights on in the room. The plaintiff lying on the carpet. No toys. No furniture in the room and the plaintiff clothed only in pants. There was no bed or mattress in the room.”Mr. Bissley said the plaintiff appeared disoriented and confused. Although they had met on previous occasions it took the plaintiff some time to focus and to recognize Mr. Bissley. The plaintiff told Mr. Bissley he had been in the room for about two weeks. Two of the older children admitted to Mr. Bissley that their mother had locked the plaintiff up the week before she went to hospital and they continued the practice follow ing her hospitalization, since they were unable to control him otherwise. The plaintiff asked Mr. Bissley if he could be taken that very day to live somewhere else and he was. Thereafter, a short-term custody arrangement was agreed to by the defendant mother.
53 When asked at her examination for discovery why the plaintiff was taken into care by the Superintendent of Family and Child Services in August, 1984, the defendant mother answered:
At the time I was not present in the home. I was in hospital in Vancouver … so I can’t give you the details of why.
When asked, at her discovery, why she was in hospital at this time her answer was “Gastrointestinal bleeding”. She then confirmed the plaintiff was not returned home once she was discharged from hospital. She was vague as to why and eventually said:
My best recollection was that it would be preferable for both [A.] and the other children for [A.] to remain temporarily in foster care.
Q. And why was that?
A. [A.] was an extremely difficult child.
Q. Until the time [A.] was apprehended by the Ministry, to the best of your knowledge had he ever suffered any mistreatment or abuse at the hands of any one in the family?
A. He had not.
Q. To the best of your recollection, up until the time [A.] was apprehended, had your husband ever hit any of the children?
A. He had never hit any of the children
Q. Had you ever seen your husband use any physical force whatsoever with respect to any of your children?
A. He had spanked the children.
Q. When you say he spanked. What do you mean by that?
A. Slapped the child on the bottom.
Q. With what?
A. His hand.
Q. How often
A. Maybe three times.
Q. How hard?
A. Hard enough to sting.
A. But not damage.
Q. At any point in time on any of your children did you ever see any physical signs of injury after being spanked by your husband?
A. No sign of physical injury. No.
When this testimony was put to her at trial in contrast to that which had been given by the plaintiff and other children in the family, she attempted to explain that by “no sign of injury” she meant according to the medical definition of injury, that is, that a welt is a swelling but not an injury. At trial she said “redness is only temporary and therefore not an injury.”
54 At discovery she later said she recalled her husband spanking or hitting the children. She was then asked:
Q. Did you ever see him strike any of the children with any other object?
A. We had a paddle.
Q. What kind of a paddle?
A. A wooden paddle that was made for us by a Christian gentleman who used it on his own children and found that it was very useful because it didn’t hurt the child, just stung.
55 At trial, the defendant mother explained that the paddle left no bruises, although she did see redness and swelling. At discovery she was asked:
Q. Other than the feather duster and this wooden paddle, did you ever see your husband strike or spank any of the children with anything else? A. No.
At trial she said she now recalled that her husband used a belt to strike the children. She said that as a result there was redness and there was swelling on the bodies of the children but it was always on the buttocks and “it was never used to excess”.
56 When asked at discovery how frequently the plaintiff was placed in his room, she answered:
A. When he needed the discipline.
With respect to the meals given to the plaintiff:
Q. What would happen to the meals that he had that he didn’t finish?
A. They were discarded.
Q. He was never given the same meal again?
A. He was never given the same meal again.
Further, with respect to the rules regarding meal times:
Q. There were never any restrictions placed on the children about how long they had to finish their dinner or how long they had to finish their lunch?
A. No. Except that in the morning to go to school they had to hurry up or wouldn’t make the school.
57 When asked at discovery to describe her relationship with the plaintiff during the years he lived at home, she described it as “warm”, “close”, “loving”, “supporting”, and:
Q. Do you recall either your husband or yourself ever being anything less than supportive of [A.]? By that I mean telling him he was stupid or no good; anything like that?
A. No I do not recall.
Q. Is it possible that happened or are you saying that it didn’t happen?
A. That did not happen.
Q. When he was sent to his room, how long was he sent to his room for?
A. Approximately half an hour.
Q. Was there a lock on the door?
A. There was a latch.
58 All of this evidence clearly differs from that given by the plaintiff, his siblings and others at this trial. When these obvious discrepancies in the evidence were put to the defendant mother at trial, she answered that in late 1983 and 1984 she was on drugs, she cannot remember much of what happened and that until she heard the evidence of the two older children she did not believe the events described by the plaintiff. At trial she said, “If [J.] says I did many of these things then I did because, although she might have exaggerated a bit, she would not deliberately lie.”
59 In spite of her evidence at trial that she was on drugs and as a consequence had only a vague recollection of events in the Fall of 1983 and early 1984 she said at discovery:
Q. Surely before [A.] was apprehended by the Ministry, that was a period when you were on drugs?
A. I was on drugs, but I was on drugs by order of a physician, not by my own volition at all.
Q. During the time when you had the separation with your husband before [A.] was apprehended, were you taking drugs at that time?
A. I was not.
When asked to reconcile this testimony with that she gave at trial, she said that at trial she meant that at that time she was only on medication prescribed by her physician which, given her history of being drug addicted, meant that she was then again addicted. She said that “taking drugs” meant to her that she was using drugs outside of those prescribed to her. At discovery, when asked about the effect drugs would have on her behaviour, this question was put to her:
Q. You would agree with me also that it [sic, drugs] distorts your ability to recall what was happening around you and accurately recall it?
A. On occasion, but not in a general sense that it would — that I would have difficulty recalling whole blocks of time at all.
60 In the Fall of 1983 the defendant mother started a divorce action against her husband. Grounds for that divorce were “cruelty” and the particulars alleged, inter alia that her husband had physically abused both herself and a number of the children. When her sworn affidavit in those proceedings was put to this defendant at this trial, she said its contents were untrue. She has no recollection of swearing that affidavit; she said she must have made it up when she was “out of it” on drugs.
61 Overall, this witness’ evidence with respect to the plaintiff’s treatment in the family home is unreliable.
62 Mr. Bissley was the social worker involved with this family from December, 1983 until April, 1985. During that time he had only sporadic contact with the defendant father. In the Spring of 1984 he saw the father twice and in November, 1984 he made telephone contact with him. Mr. Bissley’s overall impression was that the father took no responsibility for anything that happened with respect to his wife or his children. He remembers one meeting with the husband, in the presence of the wife and Dr. Crawford, a child psychiatrist who was consulted shortly after the plaintiff was taken into care. Mr. Bissley describes the father at that point as “literally frothing at the mouth” and having a great deal of difficulty sitting through the meeting.
63 The defendant father gave evidence. With great effort he tried to contain his anger; at times unsuccessfully. In his view, and it is a view shared by his wife, the process of reconciling the plaintiff with the family and reconciling differences among many of the family members was on a positive footing through their therapy with Dr. Ney until the plaintiff, once in the Juvenile Detention Centre, had his own psychiatrist (Dr. Briggs) and until the plaintiff started this action.
64 The father said that at times they had a “regular family life”. He resents the fact the plaintiff was taken from the home when he was aged 12. He feels the plaintiff could have improved himself and completed his education if he had not been taken from the home. He believes “the government interfered with us in the raising of our children” and prior to that interference he and his wife were doing a good job of guiding their children.
65 He explained he thought his duty was to spank the children. He himself was spanked and he considers that he “turned out just fine”. He said he eventually limited his use of corporal punishment and became passive as the first few children got older. According to him, the handle of the feather duster would only sting and would cause no injury if used to hit a person. He gave the impression that the number of times he struck a child with either the belt or the handle of the feather duster for purposes of punishment was insignificant. When pressed, he related an instance where when one of the children stole 35 cents; he struck that child thirty-five times with the belt. In these circumstances I cannot share his interpretation of the word “insignificant”. He went on to explain that if more than ten hits with the belt were required then he did it over several days.
66 When asked what he meant by being a passive disciplinarian, he explained he meant leaving the discipline to his wife. He explained that over the years his wife had a number of medical problems and that she eventually became drug addicted, using drugs to excess from time to time. He said that even while she was on drugs she remained sufficiently competent to deal with day to day matters.
67 On October 20, 1983, by consent, an order of this court granted interim custody and guardianship of all of the children of the marriage to the wife. The order was made in the then active divorce action brought by the wife. The order further provided that she have exclusive occupancy of the family home. This defendant’s personal signature is noted on that order. He says that in October, 1983, when he was out of the house he did have some concerns for the safety of the children but it is obvious from his testimony these concerns amounted to very little. He once talked to a neighbour and periodically drove past the home. With the consent of his wife he returned to the home in mid-December, 1983, to celebrate Christmas. He stayed until Boxing Day. He agreed that when his wife was hospitalized in March, 1984, the children were taken into care. His next recollection of anything about the children is learning that his wife was again hospitalized, in August, 1984. He has no recollection of any of the details surrounding the plaintiff’s apprehension in August, 1984, and indeed the social workers involved in the plaintiff’s care at that time testified they were not contacted by him.
68 He describes the plaintiff’s behaviour as a young child in the home as “mischievous”. He says the plaintiff suffered from a short attention span and was always getting into trouble. His own description of himself, and that of one of his daughters, as being somewhat passive, does not accord with my view of the defendant as he gave evidence. I have no hesitation in believing Mr. Bissley’s description of him on one occasion as “frothing at the mouth”, although he himself denies that meeting ever took place. My overall impression from his evidence is that he has no real grasp of the manner in which the plaintiff was treated in the family home, has no understanding that he was treated in an abusive manner, and does not recognize the extent of the psychological damage the plaintiff has experienced as a result. At the close of his cross-examination he remarked, “[the plaintiff] should be thankful because he was able to use the abuse to prevent the application being made to raise him to adult court.”
69 Where the plaintiff’s recollection and recitation of events germane to the claims he is making before this court differs from that of his parents, without hesitation I accept the plaintiff’s evidence.
70 Dr. Briggs, the plaintiff’s present psychiatrist, gave evidence. He has treated the plaintiff since 1991. He has never met the defendants. His experience in the practice of psychiatry and teaching provides him with expertise in the areas of child, adolescent and family psychiatry. His particular interest and specialty is in working with the problems of adolescence. Dr. Briggs wrote an extensive report on the plaintiff, dated February 22, 1993. He reviewed the documentation with respect to the plaintiff (all of which was evidence in this trial), going back to his initial psychological assessment at the G.R. Pearkes Clinic in January, 1978. He is obviously familiar with the details of the plaintiff’s life. He confirms that the plaintiff’s reporting to various professionals as to the treat ment he received in his family home has been consistent throughout. He writes:
Since being taken into the care of the Ministry of Social Services at age 12, [A.] has given a consistent history of his being exposed to severe and highly punitive physical and emotional abuse throughout his childhood.
The chronic abuse in childhood has resulted in delayed and faulty development affecting many aspects of [A.]’s personality make-up and of his day-to-day functioning. [A.] shows core problems of poor self-esteem, lack of basic trust in people and in his basic identity. He is handicapped by poorly developed integrative systems at the cognitive (mind) and affective (emotions) levels, with splitting and fragmentation occurring with even small amounts of stress. He has delayed or depressed intellectual development particularly in areas of language — central integrative and written expressive. And he has specific learning disabilities — arithmetic, reading, writing. Distractibility and difficulty focusing attention are still mildly present. [A.] meets the DSM-III-R diagnostic criteria for Post-traumatic Stress Disorder, and Borderline Personality Disorder. These have shown some improvement with treatment. He has been treated in the past for depression and is at high risk for depressive episodes during his adult years. He is immature emotionally and socially putting him at high risk for developing further psychiatric symptoms and for experiencing frequent relationship crises. His faulty control systems and high levels of anger during his adolescence led him to be charged with attempted murder and to be incarcerated. He subsequently made significant progress in remediation programs directed at anger management …
[A.] will require (a) on-going assistance with the skills of living after he leaves Banfield House; (b) adult educational programs with a strong remediation component; (c) vocational and skills training and support and (d) long term intensive psychotherapy. The latter should be enhanced by specific counselling and/or psycho-educational packages as indicated (eg. the previous anger management programs he attended while in the Detention Centre).
71 Dr. Briggs’ opinion, and I agree with it, is that the plaintiff was the family scapegoat. He writes:
No one will disagree with the fact that [A.]’s family experienced periods of considerable stress during [A.]’s 12 years of living within the family. There will be some dispute as to [A.]’s contribution to that stress because of his Attention Deficit Disorder and hyperactivity, and his induction into the role of family scapegoat. There will be considerably more disagreement as to whether the problems [A.] presented (both because of his disorder and because of his reactivity to family stress and their management of him) justified measures taken against him that were unusually harsh. These measures were carried out in persistent and extreme ways to the point of becoming ritualized punishment and degradation in the name of management and behavioural control. A long term pattern of physical and emotional abuse is evident, carried out both by [A.]’s parents directly and indirectly by their promoting and endorsing physical and/or emotional abuse by certain of [A.]’s siblings.
72 According to Dr. Briggs, all of the professionals involved with the plaintiff in his early years agree that he suffered from Attention Deficit Disorder (“ADD”). According to the Pearkes Clinic’s records, the plaintiff at ages 5 and 6 exhibited problems of hyperactivity, short attention span and impulsivity. Dr. Briggs said the aim of treatment for someone with ADD is to try to decrease the negative effects of the distractibility and impulsivity and increase the positive effects of improved motivation. He suggested that “firm, clear, consistent rules and structure in a child’s life administered in a caring, persistent way, help to decrease the negative aspects of the disorder.”On all of the evidence there is little to lead me to conclude that the plaintiff’s parents utilized this approach. I agree with Dr. Briggs’ impression that:
… [A.]’s parents, his mother in particular, tried to force [A.] to not have Attention Deficit Disorder symptoms by harshly punitive and restrictive measures. Rather than ameliorate ADD, this punitive approach resulted in an increasingly anxious and neurotic boy who became more, rather than less disabled by his symptoms.
73 With respect to the plaintiff’s hyperactivity, it is Dr. Briggs’ opinion that some facet of that can be attributed to ADD. However, he notes that Dr. Crawford, a child psychiatrist, who saw the plaintiff in October, 1984, once he was in care, noted the plaintiff as “depressed and sad”. In Dr. Briggs’ opinion:
… chronic stress, centred around the abusive patterns, would have contributed significantly to such symptoms as anxiety, depression, hyperactivity, poor learning and of course, increased distractibility and impulsiveness.
74 Both defendants have said the plaintiff never seemed to learn from his previous experience. Dr. Briggs writes:
… It appears that [A.]’s parents had the same difficulty — their increasingly punitive approach to [A.] and his problems continued in spite of its having no beneficial effect on [A.], only promoting more difficult and disturbed behaviour on [A.]’s part …
75 In explaining the effects on children of physical abuse, and comparing them with children who have suffered abuse which has a sexual component, Dr. Briggs gave the following testimony:
Q. Can you compare the two; is there any significant difference in your opinion with respect to the effect that different kinds of abuse have an [on] a child and subsequent effects on the adult?
A. They can be quite similar. It depends on some of the factors around it. If they are both chronic and they are both — that means that’s carried on over a period of time — if they are both coercive so that the person feels threatened, unwilling involved, if it tends to be inconsistent and predictably unpredictable — you know it’s going to happen but you’re not sure when — if there’s a lot of emotional abuse around it, the degradation that goes on, can go around physical and sexual abuse, then there are a lot of similarities, yes. Those who are sexually abused tend to have more problems with the post traumatic stress disorder but tend to have a mixture with borderline. Those who are physically abused tend to have more borderline disorder problems.
Q. Can you compare [A.]’s problems with a victim of sexual abuse?
A. Very definitely, yes. He clearly shows the outcome of that chronic severe predictably unpredictable, shaming, degrading type of abuse.
Q. He’s likely to suffer the same kind of difficulties in the future that a survivor of sexual abuse would suffer from?
Q. And the abuse has had the same kind of effect on him as it would have on a sexually abused survivor?
A. Yes it has. The problem is that there is less in the literature about males because it is not manly to complain about being abused.
76 Considering all of the evidence, I agree with Dr. Briggs’ assessment of the history of the plaintiff and his family and considering his extensive involvement with the plaintiff and his obvious detailed knowledge of the many reports and assessments of this young man, I prefer his conclusions over those reached by Dr. Hoffer who did not have the same opportunity to deal with the plaintiff, particularly in recent years, and whose history of the family situation was largely given to him by the defendants.
77 Dr. Ney’s contact with the family has been extensive. Dr. Ney’s strategy is to continue a process of reconciliation between the plaintiff and his parents and, indeed, a process of reconciliation among all family members. In my view such a process is focused on reconciling the family rather than treating the plaintiff. In the course of the therapy with Dr. Ney I have concluded the defendants have never genuinely owned up to their abusive treatment of the plaintiff. Dr. Ney envisages the plaintiff and his parents continuing in therapy together. I accept the plaintiff’s evidence that at this point he is unable and unwilling to speak with his parents and that he cannot trust them. He feels they have not and do not love him. In my view, neither the defendants, nor Dr. Ney who has had recited to him the defendants’ version of the family history, have the depth of appreciation of the plaintiff’s present state of emotional health that Dr. Briggs has.
78 I accept Dr. Briggs’ opinion that it would be dangerous to the plaintiff’s emotional health to be confronted by or subjected to his parents at this stage. The plaintiff eloquently described the situation himself; he said he has taken responsibility for his own behaviour, including his serious criminal behaviour, and he expects the same from his parents. He went on to state that his focus at the present time is to become healthy himself and that until his mental health has improved markedly he is unable and unwilling to deal with his parents.
79 The thrust of the defendant mother’s evidence is that the abuse, if any, took place for a brief period of time in 1983-84 when she was gravely ill and drug addicted. I cannot accept that the state of her health during that period of time was such that she ought not to be held accountable for her actions.
80 The defendant father was directly involved in abusing the plaintiff at various times throughout the plaintiff’s childhood. However, he took the position that his wife was solely responsible for most of the physical abuse inflicted upon the plaintiff. He submitted that, during the times he lived at the home, he remained a “passive disciplinarian” in that he “left the discipline to his wife”. Further, he stated that he was absent from the home from October, 1983 to August, 1984: this is supported by evidence of a Court Order, consented to by him, that granted interim custody and guardianship of all of the children of the marriage to his wife. It was during this time, his counsel argued, that the plaintiff’s mother was most troubled and the physical abuse perpetrated by her was most extensive.
81 The inaction on the part of the defendant father, through both his passivity within and absence from the abusive home, affords him no defence in relation to the injuries suffered by the plaintiff. This is stated most eloquently by Mr. Justice Rutherford in J. (L.A.) v. J. (H.) (1993), 13 O.R. (3d) 306 (Gen. Div.). In this case the plaintiff was sexually abused for many years by the male defendant who lived in a common law relationship with her mother. In addition to bringing an action against this man, the plaintiff sued her mother, in tort and equity, on the basis that her mother knew of the sexual assaults and failed to protect the plaintiff. The tort claims were tried before a jury. The jury was instructed, by Mr. Justice Rutherford, that a parent is under a legal duty to take reasonable steps to protect a child from harm from sources that the parent actually knew about or foresaw or ought reasonably to have known about or foreseen. The jury found that the mother knew or ought to reasonably have known about the sexual abuse inflicted upon the plaintiff and that she did not take reasonable steps to protect her. In addition to general damages and damages for future care, punitive damages against the mother were assessed at $45,000.
82 Mr. Justice Rutherford, sitting alone, dealt with the claim in equity. In doing so, he made the following notable comments on the role of the “passive” parent in an abusive home, at p. 316:
When faced with known circumstances in which she had choices to make, the defendant mother not only failed, in my view, to adopt measures to protect the obvious best interests of her daughter, she chose to act in ways which enabled the abuse and sexual exploitation of her daughter at the hands of the defendant father to continue. She gave her own personal interests paramountcy over those of her daughter, with the ironic consequences that the interests of all three members of the family unit suffered maximum damage …
In my opinion it is clear that the defendant mother breached the fiduciary obligations imposed upon her in equity to protect her daughter from sexual abuse that she was aware of. She had the ability, awareness and means to take action which would have ended the sexual abuse but failed completely to safeguard her daughter’s best interests … In preserving her own status quo, she knowingly preserved the abusive environment in which her daughter was ensnared and which was clearly detrimental to the daughter’s development and long-term best interests.
83 These poignant remarks are applicable to the case at bar. While living at home, the defendant father was certainly aware of the disciplinary methods employed by his wife with respect to the plaintiff. Moreover, he must be taken to have been aware of the state of his wife’s health, however precarious or otherwise, at the time he consented to the order granting her sole custody of the children. Knowing the history of his wife’s own childhood abuse as well as her propensity to drug addiction, the defendant father ought to have appreciated that his wife was vulnerable to losing control. I can only assume that he was either insensitive to the point of being unaware of this vulnerability or wilfully chose to ignore it. The defendant father also remained unaware of the details surrounding the plaintiff’s apprehension from the home: once notified, he made no effort to contact the social workers involved in the plaintiff’s care.
84 In acting as a passive observer within the abusive home and consenting to a court order granting sole custody to his troubled wife, the plaintiff’s father knowingly preserved the abusive environment in which his son was ensnared and which was clearly detrimental to his son’s development and long-term best interests. Through both his action and inaction, this defendant facilitated the continual physical abuse of the plaintiff. In considering the overall role of the defendant father in relation to all of the physical abuse endured by the plaintiff, I find his inaction to be as damaging as his action.
85 On all of the evidence, and considering the burden of proof on the plaintiff, I have concluded he has suffered at the hands of both defendants assault, battery, intentional infliction of mental suffering, and false imprisonment. Accordingly, I need not determine whether the defendants are liable in equity. I accept that, given the plaintiff’s ADD and what has been diagnosed as hyperactivity, he was a challenging child to raise. However, this is not a case of parenting strategies or disciplinary methods which were reasonable given that challenge, nor is it a case, with the help of hindsight, of benignly ineffective parenting. This is a case of brutality.
86 A child is entitled to expect the family home to be something of a haven; not Utopia but generally safe, fair and supportive. Within the home a child may legitimately expect discipline and guidance given with affection and respect.
87 In his family home this plaintiff was subjected to frequent verbal and physical abuse. He was physically confined and isolated. He was afforded little respect and no dignity. He was made to feel worthless. His parents’ approval, for the most part, was conditionally given when in their view he behaved “well”. He never knew what to expect. The situation the plaintiff faced at home was, as described by Dr. Briggs, “predictably unpredictable”.
88 The defendants testified the plaintiff was treated no differently than their other children. I disagree and consider he was often singled out. Even if I accepted their version, it is no answer to the plaintiff’s claims. Abuse even-handedly inflicted is abuse nonetheless.
89 In final submission, defendants’ counsel referred to “spankings” and to the mother’s “bad” parenting during 1983-84. These two words are wholly inadequate and inaccurate in describing the disciplinary techniques invoked by both defendants in relation to the plaintiff.
90 As a result of the defendants’ conduct, the plaintiff was deprived of the type of childhood which provides the opportunity of developing healthy emotional life skills. The far-reaching effects on the plaintiff of the abuse he endured are clearly outlined by Dr. Briggs in his report. He makes reference to the plaintiff’s poor self-esteem and lack of trust. Dr. Briggs says the plaintiff’s profile fits that of a person with a post-traumatic stress disorder.
91 I accept the plaintiff’s own evidence that he still has difficulty trusting and associating with people. He says he did not have a chance to learn appropriate social skills as a child. He was not able to play with other children. He describes feeling insecure and “Like I have a hole inside of me.”He hopes to “get better” through ongoing therapy.
92 He says he has had trouble holding a job. He is concerned he may be unable to develop the kind of meaningful or long lasting relationship he considers essential for marriage or for parenthood. According to Dr. Briggs, the plaintiff is at risk of developing further depressive episodes and psychiatric symptoms. He requires long-term, extensive therapy.
93 In quantifying an award of non-pecuniary damages in this case, it should be noted there are no decisions of this Court in which damages were exclusively awarded for the physical abuse of children; however, there are a number of decisions in which damages were awarded for abuse involving both a sexual and physical component. Dr. Briggs’ evidence, which I accept, is that the effects of both types of abuse may be similar, depending upon the specific circumstances surrounding each case. In Dr. Briggs’ opinion, the plaintiff in this case has suffered effects and will continue to face difficulties similar to those suffered and faced by survivors of sexual abuse. Consequently, I have looked to awards granted in cases of sexual abuse for guidance, particularly those dealing with abuse similar in intensity and duration to that suffered by this plaintiff.
94 In B. (P.) v. B. (W.) (1992), 11 O.R. (3d) 161 (Gen. Div.), Mr. Justice Cunningham awarded the plaintiff damages for incestuous assaults perpetrated upon her by her father. He commenced his pattern of sexual abuse when the plaintiff was approximately 5 years of age. His abuse progressed when the plaintiff was 7 and continued, intermittently, until she reached the age of 18. The defendant had an aggressive and violent manner throughout the plaintiff’s childhood.
95 The plaintiff suffered effects similar to those suffered by the plaintiff in the case at bar: she experienced numerous emotional and social difficulties; she suffered overall low self-esteem and a very poor sense of self-worth; and she was unable to keep herself focused in any one direction whether it be schooling, relationships with others or employment.
96 In awarding $100,000 for non-pecuniary damages, Mr. Justice Cunningham made the following observations about the plaintiff’s childhood, family life, and effects thereof, which unquestionably apply to the case at bar. At pp. 166-67 he said:
There can be no doubt that the repugnant and reprehensible conduct of the defendant towards his daughter has severely affected her life. Abuse by fathers has to have a far more negative impact upon children than any other form of abuse … Not only was there a total breach of trust involved here but also a very significant element of fear. Violence permeated this entire family unit …
97 In addition to the general non-pecuniary damages, Mr. Justice Cunningham made a separate and distinct award of aggravated damages, in the amount of $75,000. In doing so, he stated, at p. 168:
Never have I seen a situation where a person in authority has taken such advantage of another …
98 In B. (S.M.A.) v. H. (J.N.) (28 June 1991), Vancouver C903202 (B.C.S.C.), Mr. Justice Thackray awarded the plaintiff damages for injuries suffered as a result of sexual abuse inflicted upon her by her stepfather. The defendant began sexually abusing the plaintiff at a young age and such abuse intensified in its nature and duration as the plaintiff grew older. In addition to sexual abuse, the defendant regularly beat the plaintiff with a belt buckle.
99 The plaintiff experienced a childhood similar to the one described by the plaintiff in the case at bar. Mr. Justice Thackray explained it in the following manner, at p. 3 of his judgment:
… [The plaintiff’s] social life as a youngster was not what most of us would consider to be normal. She was not allowed to have sleep-outs, nor was she allowed to visit her friends after school. There was very little personal interaction between herself and other school children. She was reluctant and eventually discontinued having friends to her home … Her school work suffered …
100 Mr. Justice Thackray granted an award of $85,000 for non-pecuniary damages, which included a component of aggravated damages. In doing so, he stated, p. 9:
On first blush this might seem high. However, I have taken into account not only the awards in sexual abuse cases but also the range of damages in other types of injury actions. The injuries suffered by [the plaintiff] far outstrip most injuries suffered in motor vehicle accidents …
101 Finally, in N. (J.L.) v. L. (A.M.) (1988),  1 W.W.R. 438 (Man. Q.B.), the plaintiff was awarded damages for the severe effects of sexual abuse inflicted upon her by the defendant who was the common law husband of her mother. The assaults began when the defendant was six years of age, occurred at least twice a week, and continued for six years. Mr. Justice Lockwood awarded non-pecuniary damages in the amount of $65,000, which included a component of aggravated damages.
102 While all three decisions bear some resemblance to the case at bar, B. (S.M.A.) v. H. (J.N.) seems to be of striking similarity. As a result of the beatings and sexual abuse, the plaintiff in that case was robbed of her childhood. The same is true in the present case. As a result of the defendants’ conduct not only was the plaintiff at bar robbed of his childhood, at times he was robbed of his humanity.
103 The plaintiff seeks an award in the amount of $85,000 for non-pecuniary damages, which I consider reasonable. Given the nature and duration of the abuse inflicted upon the plaintiff, he is undoubtedly entitled to an award of aggravated damages; such damages are included in the $85,000 I award for non-pecuniary loss.
Future Pecuniary Loss
(a) General Overview
104 Future pecuniary loss compensates for not only prospective income loss in the form of wages, earnings or profits, but includes all prospective pecuniary gains which the plaintiff would have made but for his injury and will now be unable to make. This is stated most eloquently by Madam Justice Southin in the decision of Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.), at p. 59:
Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.
105 In the decision of Brown v. Golaiy (13 December 1985), Vancouver B831458 (B.C.S.C.), Mr. Justice Finch stated, at p. 4 of his reasons, that in calculating future loss Courts should consider whether:
1. The plaintiff has been rendered less capable overall from earning income from all types of employment;
2. the plaintiff is less marketable or attractive as an employee to potential employers;
3. the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
4. the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.
I do not think that either this Court or Mr. Justice Finch suggested at all that these were necessary conditions to a recovery for future wage loss or were the only considerations that had to be kept in mind.
107 Attempting to quantify future loss of income is a difficult task as it often involves much speculation.
108 In Clark v. Kereiff (1983), 43 B.C.L.R. 157 (C.A.), the issue on appeal was the test Courts should use in predicting future losses. Mr. Justice Carrothers adopted the test “Did the evidence establish that there was a reasonable possibility [as opposed to probability] that he would become a professional hockey player?” [p. 161]. In finding that such a possibility existed, the Court of Appeal ordered damages for loss of future earning capacity.
109 Another Court of Appeal decision adopting this test is Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 [ 5 W.W.R. 365]. According to Mr. Justice Hutcheon, in predicting future loss, the Court should consider substantial “possibilities”, by estimating the “chance” of a particular event occurring.
110 In a more recent decision of this Court, Nelson v. Nelson (9 July 1992), Vancouver B895046 (B.C.S.C.), Madam Justice Boyd stated [at p. 33]:
In dealing with the valuation of a future loss, I must consider the different burden of proof which rests upon the plaintiff. The plaintiff is not required to prove on a balance of probabilities the probability of future damage. Rather, he must prove that his future loss is a real possibility and that there is a reasonable chance that this loss may occur.
(b) Quantification of Damages for Future Income Loss in this Case
111 Damages for loss of future income have been dealt with in cases involving the sexual abuse of children. In some decisions, such as B. (K.L.) v. B. (K.E.) (1991), 71 Man. R. (2d) 265 (Q.B.), and Gray v. Reeves (1992), 64 B.C.L.R. (2d) 275 [ 3 W.W.R. 393] (S.C.), the Court found this type of damages to be too remote or not established in the evidence. However, in a number of other decisions, such as G. (K.) v. T. (J.) (17 June 1992), Vancouver C903072 (B.C.S.C.); S. (T.K.) v. S. (E.B.) (19 November 1992), Victoria 89 1935 (S.C.); H. (S.) v.L. (R.G.) (20 September 1993), Vancouver C923403 (S.C.) [reported 85 B.C.L.R. (2d) 232,  2 W.W.R. 276]; and B. (S.M.A.) v. H. (J.N.), supra, Courts have awarded damages for future loss of income subsequent to finding that survivors of sexual abuse have experienced both delayed entry into the workforce and reduced educational or employment options due to the abuse they have suffered.
112 In a recent decision of this Court, S. (D.) v. M. (D.A.) (11 February 1993), Vancouver C916543 (B.C.S.C.), Mr. Justice Cohen awarded a plaintiff $200,000 for loss of future income. In that case, the plaintiff suffered repeated sexual assaults committed upon him by the defendant when the plaintiff was between 9 and 14 years of age. The Court found, on the evidence, that the plaintiff had the capacity to obtain a university degree and possibly a degree in architecture and that the plaintiff’s desires in that regard had been thwarted as a direct result of the injuries suffered by him. He found that the actual likelihood of the plaintiff suffering a future loss was high and, accordingly, ordered damages to compensate for such loss.
113 While these decisions highlight the authority of this Court to award damages for loss of future income in cases involving the abuse of children, both the justification for and quantum of such damages must be established on the particular facts of every individual case. In this case, there are many factors which complicate predicting the plaintiff’s future income loss. The plaintiff suffers from Attention Deficit Disorder and hyperactivity, both of which were diagnosed prior to the onset of the abuse. The plaintiff now suffers from diabetes and is insulin dependent. Finally, the plaintiff is serving a sentence for a serious criminal conviction which will ultimately result in a criminal record. These factors may have a detrimental effect on the plaintiff’s ability to upgrade his education and obtain gainful employment. Some of these conditions have undoubtedly been aggravated by the abuse. Certainly, the post-traumatic stress disorder he must now struggle with is a direct consequence of the abuse. However, it is without question that the plaintiff’s employment opportunities are in some ways limited for reasons independent of the abuse. All of these factors must be considered.
114 A Vocational Evaluation was performed on the plaintiff in August, 1992 and a report based on this evaluation was submitted to the Court. According to R.D. Michaels, a Senior Vocational Rehabilitation Counsellor, there are a number of realistic occupational options available to the plaintiff. In the short term, without additional education and training, the plaintiff is employable as a waiter, salesperson, or courier. In the medium term, with limited training followed by on-the-job training, the plaintiff may be employed as a travel agent, hairstylist or bartender. Finally, in the long term, with upgrading and completion of a two-year Community College program the plaintiff is capable of becoming employed as a recreation leader.
115 The vocational report was very positive and encouraging with respect to the plaintiff’s potential in relation to both education and employment. The report stated that “[the plaintiff’s] performance appeared to be optimal and it is believed that this is a true representation of his abilities.”However, the report noted the plaintiff’s lack of initiative to be able to work on his own and his inability to accept criticism without feeling hurt. Both of these limitations may be directly linked to the physical isolation and emotional abuse the plaintiff suffered as a child. The report also acknowledged the potential for employment limitations stemming from the plaintiff’s probation and diabetes.
116 Another report which is of some assistance in calculating damages for future loss of income is the economic report dated March 10, 1993, written by Geoffrey Young, Ph.D., of Discovery Economic Consulting. In considering both the psychiatric report of Dr. Briggs and the vocational report of Mr. Michaels, Dr. Young developed information and calculations related to the present value of the plaintiff’s possible future income losses.
117 In his report, Dr. Young provided average earnings of males in a number of categories based upon the level of education attained: all males; grade 9-13, no certificate; high school certificate; some post-secondary, non-university; post-secondary certificate or diploma; some university and university. He also provided figures for first quartile data. He writes:
This data reports the earnings of B.C. males in the same education levels described above but in this case instead of reporting the average earning level for each level and age group, the first quartile level is reported. The first quartile level is that level which exceeds the earnings of the bottom 25 percent of individuals and is below the level of the upper 75 percent. That is, 1 male in 4 will make less than this amount and 3 in 4 will make more.
We have presented the first quartile data to give the court some feeling for the range of variation in earnings within each classification and to suggest what a male who suffers from some earnings disadvantages relative to others of his age and educational attainment might earn.
118 Following a presentation of these averages, Dr. Young provided “sample estimates” of future income loss for the plaintiff: each estimate is based upon a number of assumptions related to earnings the plaintiff would have earned but for the abuse he suffered. Some, if not many, of these assumptions are inaccurate. However, because the figures presented are useful, I will outline the most realistic “sample estimate” provided, “sample estimate two”:
This sample estimate has been developed based on the following assumptions:
… we have assumed that, given an acceptable family upbringing, [the plaintiff’s] future earning capacity could be represented by the present value of the average earnings for all B.C. males of [the plaintiff’s] age. The present value of this future earning capacity including allowances for positive and negative employment contingencies has been calculated to be approximately $915,600.
As a result of the experiences suffered within his family as a child, [the plaintiff’s] future earnings capacity can be represented by the present value of the first quartile earnings for all B.C. males of [the plaintiff’s] age. The present value of this future earning capacity including allowances for positive and negative employment contingencies has been calculated to be approximately $650,800.
As a result of the experiences suffered within his family, [the plaintiff] will suffer from limitations at work. The effect of these work limitations on his earnings levels and employment will be to reduce his earning capacity by 15 percent below the first quartile level.
Based on the above information and assumptions, this sample estimate of the present value of [the plaintiff’s] future earning capacity loss has been calculated to be approximately $362,400:
915,600 – (650,800 – 15%) = $362,420.
119 The assumption I find inaccurate in this sample estimate is the initial one, that is, given an acceptable family upbringing, the plaintiff’s future earning capacity could be represented by the present value of the average earnings for all B.C. males of the plaintiff’s age. As previously noted, the plaintiff suffered from Attention Deficit Disorder and Hyperactivity prior to the onset of abuse. Due to these learning disabilities alone, the plaintiff’s future earning capacity is best represented by the present value of the first quartile earnings for all B.C. males of his age.
120 Consequently, I am of the opinion that the plaintiff would have fallen within the same income bracket he currently does even if had he not suffered abuse. However, I am also of the opinion that the plaintiff will likely suffer increased work limitations, within this income bracket, due to the abuse inflicted upon him. Two of these limitations have already been noted in the vocational report: the plaintiff’s inability to handle criticism and his discomfort in working alone. Further, the psychiatric evidence of Dr. Briggs indicated the abuse inflicted on the plaintiff aggravated and intensified his learning disabilities. In applying the test set out in Steenblok v. Funk, supra, it is very possible these limitations will effectively limit the plaintiff’s employment opportunities and reduce his future income.
121 In addition to the work limitations referred to, the plaintiff has experienced and continues to experience delayed training and education as well as postponed entry into the workforce. Again, this delay is the direct or indirect result of the abuse he suffered as a child: such abuse set a chain of events in motion which placed obstacles in the plaintiff’s developmental and educational path and ultimately hindered the plaintiff from becoming a productive member of society. The plaintiff should be compensated for such delay. There will be no award for past loss of earnings as a separate head of damages.
122 Plaintiff’s counsel argued the evidence filed as to future loss would be helpful as a guide and I agree. The defendants’ counsel made no reference to this evidence. I will fix a global amount of damages in this category, namely, $125,000.
(a) General Overview
123 Whereas non-pecuniary damages and damages for future pecuniary loss are intended to compensate the plaintiff for injuries and losses he or she has suffered, punitive damages (also referred to as “exemplary damages”) are primarily awarded to “punish and deter” the defendant. As noted in S.M. Waddams, The Law of Damages (Toronto: Canada Law Book, 1983), at p. 998:
… the kind of conduct that attracts exemplary damages has been described with a wide variety of colourful words and phrases. These include: malicious, high-handed, arbitrary, oppressive, deliberate, vicious, brutal … evil, outrageous, callous, disgraceful, wilful, [and] wanton …
124 As to the aspect of deterrence, in Loedel v. Eckert (1977), 3 C.C.L.T. 145 (B.C.S.C.), Mr. Justice Lander, in ordering punitive damages, made the following comments, at p. 152:
The courts must be vigilant to ensure that there be deterrence to persons of a like mind as the defendant, and also to deter the defendant himself from future similar conduct.
(b) Quantification of Punitive Damages in the Case at Bar
126 Punitive damages have been awarded in many decisions involving the sexual abuse of children. In G. (K.) v. T. (J.), supra, Mr. Justice Parrett considered that the defendant was a close relative of the plaintiff and a trusted member of her family. In ordering an award of $5,000 for punitive damages, His Lordship stated [p. 13]: “in abusing the plaintiff and preying on a child of such tender years, [the defendant] not only breached her trust but also that of her family and society at large”. Mr. Justice Hall similarly awarded $12,500 in punitive damages in Gray v. Reeves, supra, due to the “nature of the assaults and the unrepentant attitude of the defendant”. Finally, in Harder v. Brown (1989), 50 C.C.L.T. 85 (B.C.S.C.), Mr. Justice Wood awarded the sum of $10,000 by way of punitive damages against the defendant.
127 Courts have refused to award punitive damages in cases involving the sexual abuse of children where the defendant had already been convicted and sentenced in a court of criminal jurisdiction in relation to the same events giving rise to the civil action. In this case, the defendants have not faced criminal proceedings.
128 Neither of the defendants clearly or genuinely stated remorse for their actions or for what they had allowed to be done to the plaintiff while he was in their care; both resiled from admitting the part they played in this whole tragedy.
129 I must consider the position of trust both defendants held in relation to the plaintiff. It is no answer for the defendant mother to say “I myself was a victim and did only the best I could”. Nor is it an answer for the defendant father to say “I stood idly by and agreed my wife was in charge.” Moreover, given the increasing levels of violence in society, Courts must try to ensure that other parents are deterred from inflicting such abuse upon their children.
130 I have concluded this case calls for punitive damages and that such damages should be substantial. This is particularly so considering the defendant father’s offhand remark that he considered the plaintiff fortunate to have been able to use the allegations of abuse to resist an application to raise him to adult court in relation to the criminal charges against him.
131 I fix punitive damages in the sum of $50,000.
132 As to the cost of future care, no evidence was led and accordingly no award is made.
133 The plaintiff argues this is a case for costs on an increased scale. Considering the provisions of App. B of the Supreme Court Rules and the comments of Bouck J. in Bradshaw Construction Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R. (2d) 309 (S.C.), reversed on other grounds (1993), 73 B.C.L.R. (2d) 212 [ 1 W.W.R. 596] (C.A.), both the difficulty and importance of the issues raised in this case justify the plaintiff’s position. Taking into account the nature of the evidence, the altered position of the defendants from that taken in their pleadings and on discoveries to that taken at trial, and its jurisprudential uniqueness, I consider it appropriate that the plaintiff have costs on Scale 4.