Attached is a decision rendered last week on a similar case law to that of the Vicki Boer vs Watctower case. This judge is the same one that heard vickis case one month prior to this case. it is rather large but an interesting read. Especially the part about Fidicuary duty and equal liability of all parties for the full judgement amount.
PS it is a sad story of abuse so get some kleenex.
Scott Case Name: A.C. v. Y.J.C. Between
A.C. and C.C., plaintiffs, and
Y.J.C., defendant [2003] O.J. No. 758
Court File No. 99-CV-170264 Ontario Superior Court of Justice
Molloy J.
Heard: October 21-25 and 28-31, 2002.
Judgment: February 27, 2003.
(87 paras.)
Counsel:
| Bruce Haines and L. Craig Brown, for the plaintiffs. Ian R. Mang, for the defendant. |
[Quicklaw note: The note "[Text deleted by Quicklaw]" indicates the removal by Quicklaw of information which may identify individuals protected under Quicklaw's Guidelines for the Protection of Identities.]
MOLLOY J.:—
A. INTRODUCTION
¶ 1 The plaintiffs are brother and sister. The defendant is their mother. A.C. is now 33 years old and his sister C.C. is 31. Their claims against their mother date back to their childhood when, they allege, they were the victims of horrific emotional and physical abuse at her hands. They seek damages for breach of fiduciary duty, aggravated damages, and punitive damages.
¶ 2 The plaintiffs have two younger siblings: W.C. (now aged 30) and S.C. (now 27). Although all four are now adults, I will refer to them throughout these Reasons by their given names and to their parents as Mr. C. and Mrs. C. There will also be mention of Mr. C.'s mother, whom I will simply refer to as "grandmother."
¶ 3 At the conclusion of the trial, I advised the parties that I believed the defendant Mrs. C. had horribly abused A.C. and C.C. over a period of several years during their childhood, causing them significant and permanent injuries, and that I would be awarding a substantial judgment in the plaintiffs' favour. I was not in a position at that time to quantify the damages precisely, nor to put on the record my detailed Reasons for Judgment. However, it was clear to me that those damages would far exceed the value of Mrs. C.'s only substantial asset, a house located at [Text deleted by Quicklaw] in Toronto. Mrs. C. is in the process of arranging the sale of that house. I therefore ordered that any proceeds from the sale of the property payable to Mrs. C. upon closing shall be paid into court pending the release of my Reasons or further Order of this Court.
¶ 4 In explaining the conclusion I have reached, I start with an examination of the current psychological condition of the plaintiffs to determine if they have suffered an injury. This is primarily based on the expert testimony at trial. I next examine whether there were acts by Mrs. C. which caused plaintiffs' conditions. This includes consideration of other potential causes or contributing factors suggested by the defence. Finally, I deal with the legal basis of the defendant's liability and the quantification of the plaintiffs' damages.
B. BACKGROUND
¶ 5 Mr. C. and Mrs. C. were born in Korea and were married there in 1968. A.C. was born in 1969 and C.C. in 1971. The marriage was a turbulent one, to say the least. Mrs. C. testified that her husband beat her on numerous occasions throughout the marriage. In 1971, Mrs. C. left her two children with their grandmother (Mr. C.'s mother) and moved to Germany where she worked as a nurse. At about the same time, Mr. C. travelled to Canada on a temporary visa. After three months, he returned to visit his wife in Germany and she became pregnant with their third child, W.C. By the time W.C. was born in 1972, Mr. C. had emigrated to Canada. Mrs. C. spent another year in Germany with W.C. and then in 1973 moved to Canada to live with her husband. S.C. was born here in 1974.
¶ 6 Throughout this period, A.C. and C.C. lived with their grandmother in Korea and would appear by all accounts to have had a happy and uneventful early childhood. In November 1975, their parents sent for them and they came from Korea by air to Toronto. From that point on, their lives can best be characterized as pure misery. A.C. was 6 at the time, and C.C. was 4. They missed their grandmother, the only mother figure they had known up to that time. They had never met their siblings and had no memory of their mother or father. They spoke no English. Mr. C. was a strict disciplinarian and a firm believer in corporal punishment. All four children testified that their father beat them on many occasions in a manner that went far beyond an acceptable degree of correction. It would appear that Mr. C. also beat his wife and that the children either saw or heard much of that abuse. However, according to A.C. and C.C., all of these problems pale in comparison to the sadistic cruelty of their mother. They describe numerous instances of barbaric assaults and torture by their mother, the viciousness of which becomes even more incomprehensible when contrasted to the love and affection she showered on W.C. and S.C.
¶ 7 The Children's Aid Society ("CAS") first became involved with the family in 1977 when teachers reported scars on A.C. and C.C. as a result of beatings they received at home. Although there were numerous reports over the years and although the CAS continued to be involved with the family over a period of many years, the beatings continued. Finally, in 1983, A.C. left home and refused to return. He was 14. He spent the rest of his childhood in foster homes as a ward of the CAS. About a year later, C.C. also sought protection from the CAS and asked to go into long-term care. She was 13. Like her brother, she lived in foster homes until she became an adult.
¶ 8 Today, A.C. and C.C. bear the permanent physical and emotional scars of their traumatic childhood. They lay the blame squarely and entirely at their mother's feet.
¶ 9 Mrs. C. admits that she assaulted A.C. and C.C. However, she denies the extent and frequency of the abuse they allege and specifically denies having done some of the more horrific acts they describe. Mrs. C. claims that it was Mr. C., not she, who was responsible for most of the violence. She says she treated all four of her children equally. The defence also argues that some of the difficulties now experienced by A.C. and C.C. are neutral in origin, having been caused by being uprooted at a young age, taken from the grandmother they loved, and thrust into a foreign environment where they did not speak the language.
C. THE EXPERT EVIDENCE
¶ 10 Three expert witnesses testified on behalf of the plaintiffs: Dr. Marvin Sazant (a family physician); Dr. Pieter Butler (a clinical Psychiatrist); and Dr. Paul Comper (a clinical neuropsychologist). All three doctors diagnosed both A.C. and C.C. as suffering from post-traumatic stress and other related disabilities. All three doctors considered these to be permanent conditions caused by severe abuse inflicted upon the plaintiffs by their mother. All three were cross-examined but were unshaken; they remained steadfast in their diagnoses. The defence did not call any expert evidence.
¶ 11 I have no hesitation in accepting the opinions of the three doctors who testified. All were well qualified in their fields and, in my view, were fair and unbiased in their testimony. Although each doctor has a different medical specialty, the findings and observations of each of them were remarkably consistent with the others. Their expert opinions were essentially uncontroverted. I found their evidence to be compelling and reliable. My acceptance of this evidence is, however, subject to one significant qualification. Each of the doctors accepted the truth of what they were told by C.C. and A.C. and also relied on some of the factual history contained in the CAS records, which were marked as an exhibit at trial. The reliability of their opinions is therefore dependent upon the truth of the underlying facts they accepted. I will return to this point later in these Reasons.
Dr. Sazant (Family Physician)
¶ 12 Dr. Sazant diagnosed A.C. as suffering from post-traumatic anxiety, depression, insomnia, nightmares, headaches and difficulties concentrating. He also found chronic strain in the lumbo sacral spine. Both tempero-mandibular joints were tender as a result of chronic strain (consistent with constant teeth grinding). His physical examination showed that A.C. had swelling and tenderness at the TP and IP joints of his left hand and his grip was weak. Dr. Sazant diagnosed post-traumatic arthritis in these joints. In his opinion, A.C.'s disabilities, both psychological and physical, are permanent.
¶ 13 Dr. Sazant's findings in respect of C.C.'s disabilities are strikingly similar to those of her brother A.C. He diagnosed C.C. as suffering from post-traumatic anxiety, depression, insomnia, nightmares and difficulty concentrating. She complained of pain in the joints of her left hand and Dr. Sazant found swelling in the proximal IP joints of her left hand, especially in the long finger. He diagnosed post-traumatic arthritis in those joints. On physical examination, he noted six permanent scars: two on her left upper eyelid and one each on her left forehead, right side of chin, right side of neck and the back of her scalp. Dr. Sazant also found an old nasal bone fracture, with permanent deviation of the nasal bone and septum on the left side and decreased air passage in the left nasal chamber. He considered her disabilities to be permanent.
Dr. Pieter Butler (Psychiatrist)
¶ 14 Dr. Butler is a clinical psychiatrist with 40 years experience in treating individuals who were victims of abuse as children. He diagnosed both A.C. and C.C. as clearly suffering from chronic post-traumatic stress disorder with symptoms commonly seen in victims of torture or abuse. This condition typically arises when a person is exposed to the risk of severe and inevitable harm in a situation in which he feels helpless. Victims of post-traumatic stress are often haunted by intrusive recurrent images of being in great danger and being helpless to prevent it. They live in a perpetual state of alarm and uncertainty and have an intense reaction if exposed to any reminders of their abuse. This can have physical and emotional consequences on the person and interfere with the ability to have a "normal" life.
¶ 15 Dr. Butler testified that A.C.'s post-traumatic stress disorder is chronic and extreme and accompanied by a dissociative identity disorder. He believes this condition was the direct result of years of severe abuse during his childhood. When asked if there could be any other causes for this condition, he stated that he could not think of any, except that there may also have been brain damage as a result of blows to the head and loss of consciousness. However, due to the lapse of time since these events, it would no longer be possible to reach any conclusive diagnosis of brain injury.
¶ 16 Dr. Butler said that A.C.'s dissociative state goes beyond mere denial. Rather, when describing traumatic events of his childhood, it is almost as if he is talking about something that happened to somebody else. He is excessively detached, as if he is not a "real person." He has a flat affect and emotional constriction, so that he is in a numb or "zombie-like" state. He cannot experience joy or love. He cannot concentrate. He suffers from irritable bowel syndrome, insomnia and nightmares. These are typical symptoms of post-traumatic stress. As a result of these psychiatric disorders, A.C. has extreme difficulty functioning in an academic or work environment. He has none of the interpersonal skills needed to function well at a job. He would be perceived as totally uninterested. Although his IQ level is likely above average, he would not be able to perform at that level because of his inability to concentrate. He is unable to have close personal relationships with others. Dr. Butler was completely pessimistic about there being any chance of recovery or improvement. The damage done to A.C. is permanent.
¶ 17 Dr. Butler testified that C.C. also suffers from chronic post-traumatic stress disorder of which the main symptoms are emotional constriction and persistent anxiety. As is the case with A.C., Dr. Butler believes that severe abuse as a child is the only likely cause of C.C.'s current psychiatric disorder. C.C. has somewhat more insight than her brother and is not in a dissociative state. She is more aware of her persistent anxiety and fear, whereas A.C. has separated himself from it. However, she does, like her brother, have a flat affect and a limited emotional range. She is excessively timid and has a "general sense of inevitable defeat." She has very low self-esteem and is frequently depressed. She is unable to trust other people. Dr. Butler described her as living in a general state of fear of people and noted that she "had developed a protective facade of politeness and obsequiousness." She is also unable to concentrate and finds intellectual tasks such as studying to be frightening as she lives in dread of making a mistake. She is significantly physically affected, in that she has chronic joint pain, insomnia, nightmares, and unstable bowel and digestive function. Dr. Butler believes that C.C. is unlikely ever to be a mother; but if she did she would likely find the experience very difficult because of intrusive memories of her own childhood, an inability to form a normal relationship with her child, and a dread of copying her mother's behaviour. She is unlikely to have stable romantic relationships and will probably lead a solitary life. Dr. Butler believes that C.C. will never recover or improve.
¶ 18 Dr. Butler is aware that both C.C. and A.C. received harsh corporal punishment from their father as well as from their mother. However, he remains of the view that it was the mother's abuse that is the root of their current psychiatric disorders. He felt that the abuse by the father, although extreme, was seen by C.C. and A.C. as punishment, in that there was a cause for it. Their mother's violence, however, was random and unpredictable. He thought it incorrect to characterize much of Mrs. C.'s conduct as punishment, and stated that it was "more like cruelty" or "senseless violence." Such conduct is more likely to give rise to post-traumatic stress disorder, from which both C.C. and A.C. suffer.
Dr. Paul Comper (Neuropsychologist)
¶ 19 Dr. Comper is a neuropsychologist. He met extensively with A.C. and C.C., administered several forms of psychological tests, and carried out a psychological and vocational rehabilitation assessment of them. Dr. Comper testified that both A.C. and C.C. are suffering from post-traumatic distress disorder. His comments with respect to the psychological impact of childhood abuse on A.C. and C.C. are so similar to those of Dr. Butler that I will not repeat them here. It is sufficient to say that Dr. Comper's expert opinion on the psychological effects of the abuse on the plaintiffs corroborates Dr. Butler's evidence completely. Like Dr. Butler, Dr. Comper also raised the possibility that both of the plaintiffs may have suffered brain damage while children as a result of the abuse. This possibility was raised by some of the aberrant test results, but Dr. Comper was unable to make a definitive diagnosis on it.
¶ 20 Dr. Comper dealt in considerable detail with the impact of the post-traumatic stress disorder on the ability of C.C. and A.C. to earn a living. He found that their disorder has compromised their ability to learn and to perform well on the job. Each of them finished high school but with very mediocre results. Dr. Comper believes that their poor academic achievement is a direct result of the trauma they suffered as children and that but for that history, they would likely have gone on to university. Their poor performance at high school, when coupled with ongoing personality and emotional problems related to their disorder, now makes it impossible for them to achieve a university education and the type of income commensurate with that level of education. He was very pessimistic about the possibility of that situation improving in the future, even with counselling and therapy.
Conclusion: The Plaintiffs Suffer from Post-Traumatic Stress Disorder
¶ 21 Based on all of the expert evidence, I conclude that both A.C. and C.C. are suffering from post-traumatic stress disorder as a result of violence perpetrated against them while they were children. The evidence to that effect is overwhelming. I also accept the evidence of all three doctors as to the nature of the disorder and the devastating impact it has had on C.C. and A.C., physically and emotionally. They live under enormous stress in their daily lives, are unable to form and maintain close relationships with others, and are seriously compromised in their ability to perform effectively in an academic or work environment. Having concluded that the plaintiffs have suffered this harm, I turn now to consider who caused it.
D. CONDUCT OF MRS. C. AS CAUSE OF HARM TO PLAINTIFFS
The Position of the Defendant
¶ 22 Mrs. C. argues that any psychological damage suffered by the plaintiffs is attributable to the atmosphere of violence their father created in the home, including the brutal discipline he meted out and the fact that they witnessed him beating their mother. She says that A.C. and C.C. suffered particularly at the hands of their father as he would discipline them for poor performance at school, and they were disadvantaged in that regard because they spoke no English before coming to Canada. Mrs. C. also suggests that A.C. and C.C. were adversely affected by being removed from Korea and brought to Canada, particularly since they were so attached to their grandmother. Mrs. C. and the grandmother did not get along, which was difficult for the plaintiffs as they had divided loyalties.
¶ 23 Mrs. C. testified at trial that Mr. C. assaulted her on numerous occasions during the course of their marriage, including while the children were in the house. This is not contradicted. On more than one occasion, Mrs. C. sought refuge in a shelter to escape her husband's brutality. Eventually Mr. C. served time in prison, after being charged criminally and convicted of assaulting his wife.
¶ 24 Mrs. C. admitted at trial that she had on occasion struck C.C. and A.C. as a form of discipline. The occasions on which she did this were, according to her evidence, situations in which they had been disobedient or told lies. She usually hit them with a wooden spoon. She also hit C.C. with a wooden spoon for repeatedly making the same mistakes when practicing the piano. Mrs. C. specifically denied the more extreme forms of abuse reported by C.C. and A.C. Some of the injuries they reported (e.g. C.C.'s broken leg, A.C.'s scalded scalp and C.C.'s twisted fingers) were explained away as accidents. Mrs. C. said that Mr. C. used corporal punishment on the children far more than she did. She maintained at trial that she treated her four children equally.
¶ 25 Both W.C. and S.C. testified in support of their mother's position. They saw their father as a more violent disciplinarian than their mother. They recalled Mr. C. striking both C.C. and A.C. and subjecting them to a form of discipline in which they were required to squat and walk like a duck for periods of time. They said that A.C. and C.C. received more punishment at his hands because their school work was not as good and because they were older. However, Mr. C. beat all four children on a number of occasions. They also testified to hearing and seeing their father abuse their mother. Both S.C. and W.C. denied witnessing C.C. or A.C. receiving extreme physical punishment at the hands of their mother and testified that neither A.C. nor C.C. said anything to them about such physical abuse at the time. They also denied that they (W.C. and S.C.) were ever abused by their mother. On the contrary, their mother has treated them with great devotion, sacrificing much for their benefit.
The Testimony of the Plaintiffs
¶ 26 Both A.C. and C.C. testified to a pattern of continuous and sadistic physical abuse at the hands of their mother from the time they arrived in Canada to the time they fled for refuge in their early teens.
¶ 27 A.C. testified that his mother frequently beat him with whatever object was at hand, such as a cutting board or kitchen utensil. She also beat him with her fists and hit him with her open hand. On a regular basis, she would slam him into a wall or table, often banging his head into the wall. She would drag him by the hair. On one or two occasions, she kicked or punched him in the genital area, once with enough severity to cause bleeding from his penis. She would choke him with her hands around his throat, sometimes until he passed out. Frequently, she would require him to stand in front of her with his hands outstretched, palms down and she would then bend his fingers backwards or twist them. Sometimes she would apply pressure to his eyes with her thumbs causing severe pain. On a number of occasions, she shoved food down his throat with her hands or pushed a J-cloth down his throat until he gagged. She would make him run up the basement stairs and then push him down the stairs and make him run up again. This would be repeated over and over. Some of his worst memories related to incidents in the bathroom. She would hold his head under water repeatedly until he passed out. On at least one such occasion, he lost bowel control. She would also pour scalding water on him. He sustained burns to various areas including his feet, thighs, neck and head. Once, the scalding to his head was so severe that his scalp blistered, bled, and oozed pus.
¶ 28 A.C. developed an interest in martial arts and became quite proficient. By his early teens, he had also begun to grow in size and strength. He testified noticing on one occasion that when his mother tried to slam the dinner table into his chest, he was strong enough to simply put out his hands and hold the table away from him. He realized then he was strong enough to resist her physical punishments. The culminating incident was in October 1983 when A.C. was 14. He testified that his mother had attempted to slam his head into the concrete wall of the garage. He pulled out of her grasp. When she attempted to punch him, she hit the concrete wall with her fist. A.C. testified that he was concerned he might injure his mother, as he was no longer prepared to simply allow her to beat him. A few days later, A.C. simply did not return home after school. He slept overnight in a shed at a golf course and then told the vice-principal of his school the next day that he refused to go back home, citing his mother's abuse as the reason. The vice-principal called CAS and A.C. was taken into care. His mother did not object.
¶ 29 C.C. testified that beatings at the hands of her mother were a virtual daily occurrence from as early as she can remember. One of C.C.'s earliest memories was of her mother hitting her with a rolling pin and breaking her leg. Her mother would also beat her with her hands or fists or with any object that was nearby. Sometimes her mother would choke her until she lost consciousness. She would frequently slam her head into a wall. On a number of occasions, she forced J-cloths down her throat, once with the aid of chopsticks to ram the cloth down farther. Deliberate twisting and bending back of her fingers was a common occurrence. After she reached puberty, her mother would often punch her in the area of her developing breasts. On occasion she would pinch or twist her "vaginal area." Sometimes her mother would repeatedly push her downstairs, require her to run back up and then push her back down again. On one occasion, her mother assaulted her, breaking her nose. She received no medical treatment for it. Thereafter, C.C. snored loudly when she slept and was often disciplined harshly for snoring, or made to stay awake all night. She was repeatedly subjected to hair-pulling, including being dragged by the hair. As was the case with A.C., some of the most horrific abuse reported by C.C. took place in the bathroom. She testified that when she was a very small child, her mother would hold her upside down by the feet and dunk her head in a bucket of water while she struggled for air. When she was a little older, the "water treatment" took other forms, such as binding her hands and feet and pouring cold water on her while she was lying in the bathtub, or holding her head underwater while she was having a bath. C.C. testified that she was also deliberately scalded by her mother on numerous occasions when she was in the bathtub, leaving permanent scars.
¶ 30 On November 3, 1984, C.C. ran away from home to avoid an expected beating from her mother. She went to a friend's house, and from there called A.C. who took her to his group home. CAS was contacted and C.C. asked to be taken into care, refusing to return home because of her fear of her mother. The CAS records made at the time indicate that Mrs. C. admitted that "she cannot control her anger towards C.C." and that she "felt much more attached to S.C. and W.C. than she did to C.C.". Mrs. C. agreed that C.C. should remain in the care of the CAS.
¶ 31 Both C.C. and A.C. also reported that their mother constantly abused them verbally. She would call them stupid and compare them unfavourably to their siblings, W.C. and S.C. She accused them of being just like their grandmother (who Mrs. C. loathed). They were also required to spend virtually all of their free time doing household chores, whereas W.C. and S.C. were rarely required to do any. They were conscious all their lives that their mother never loved them, but that she adored W.C. and S.C.
Factual Findings
¶ 32 I have set out above only a summary of some of the abuse described by A.C. and C.C. I have not attempted to recount all of it. They gave extensive evidence of these and other similar acts of brutality. It is a shocking and disturbing story, one that I almost wish I could say was untrue. However, I have no hesitation in accepting the evidence of C.C. and A.C. as a true and honest account of their memories of their childhood experiences with their mother. Further, I believe those memories are not only honestly held, they are accurate. I recognize that some of these childhood memories may have become confused or exaggerated over time, particularly the incidents which occurred when they were very young. However, I find that the extent of such confusion or exaggeration is minimal and has no impact on the substantial accuracy of the abuse described.
¶ 33 In coming to this conclusion, I rely in part on my impressions of A.C. and C.C. as they testified. I have absolute confidence that they were not fabricating their evidence. A.C. testified in a flat, matter-of-fact manner, almost as if he was describing something that happened to somebody else. This is fully consistent with the experts' description of his personality disorder attributable to the abuse he suffered as a child. He did not exaggerate his evidence. Even the most horrific examples of abuse were described without embellishment, even without emotion. C.C. was more fragile, but also almost eerily disconnected from the horror of what she was describing. I will not soon forget the chilling image of C.C. delicately fingering various scars on her face and neck while recounting how her mother gave them to her. Quite simply, I believe both C.C. and A.C. They told the truth about what happened to them.
¶ 34 It is obvious that the plaintiffs' evidence is not a recent fabrication. When Mr. C. and Mrs. C. eventually separated, Mr. C. took with him two samples of things written by A.C. and C.C. when they were children. He saved them for many years. A.C. and C.C. saw them again for the first time about four years ago. With respect to C.C., two pages are produced, which appear to be excerpts from a diary. C.C. believes she wrote this when she was about 12. It is obviously the writing of a child, a very troubled and fearful child. She describes herself as living the life of a slave, working from "morning till dawn." There are numerous references to repeated beatings by her mother. She also refers to nightmares "about my mother beating me." She writes:
I wake up terrefied wondering weather I really belong to my mother I'm living with. Because it just seems to me I'm not hers I'm somebody's eles. I wonder weather its really happening or just a long nightmare ... I secretly wept often hoping God would end this miserable life of mine. (spelling and grammar as in original) |
¶ 35 In respect of A.C., the document produced is a poem entitled "Mon Terrible Mother," which he wrote when he was about 13. These words of a child speak more eloquently than I can about what A.C.'s life with his mother must have been like. This is an excerpt of what he wrote:
| My mother is terrible Though it seems quite incredible She's probably selfish And as lazy as a starfish When she's near It makes your brain quite unclear She complains And cracks your brains Pulls your hair And doesn't give a penny care She used to choke us Of course also poked us Used to dunk our heads in hot water Making you wish you'd rather be in a gutter She's also probably a liar Makes your heart burn like fire |
¶ 36 It was suggested by the defence that A.C. and C.C. concocted their story because they sided with their father in the divorce proceedings between their parents. Mrs. C. continues to maintain that it was Mr. C. who was the real villain and that it was because of his punishments that A.C. and C.C. left home. I reject that suggestion. First of all, it is vehemently denied by the plaintiffs, both of whom testified that it was their mother's treatment that caused them to flee. Secondly, the private writings of these children while they were still living with their mother confirms much of the evidence they gave in court. Thirdly, neither of the plaintiffs have much feeling for their father. They have not maintained contact with him and do not even know where he is. They would not have made up this story for his protection. Finally, the CAS records of what was said by the children when they left home clearly reflect that they were seeking to escape from their mother. When A.C. left in October 1983, his father had not been living in the home for over a month. The social worker who spoke to A.C. the day he left home reported that he left because he could no longer tolerate his mother's treatment of him and directly quoted A.C. as saying, "I hate my mother. I'll kill her if I see her." A year later when C.C. left home, the same social worker noted that the reason given by C.C. was physical and emotional abuse by her mother and noted that C.C. lived in "constant fear of her mother." The defence pointed to subsequent statements made by A.C. to the CAS in which he appeared to put more of the blame on his father. I note, however, that this was at a time when wardship hearings were pending and Mr. C. had returned to live with his wife. Mrs. C. had always been agreeable to A.C. and C.C. remaining in the care of the CAS. However, Mr. C. wanted them to come home and for a period of time he resisted the CAS position that they should stay in care. I accept A.C.'s explanation that he saw his father as "the enemy" at that point and that he therefore emphasized his father's abuse in order to avoid being sent back home. In any event, I find that statements made at the time the children left home to be more informative as to their motivation.
¶ 37 It follows from the foregoing that I do not accept the evidence of Mrs. C. It is not simply a matter of preferring the evidence of the plaintiffs to that of Mrs. C. I believe Mrs. C. lied in her testimony before the court. The following example is illustrative. Mrs. C. denied that she ever deliberately bent back or twisted the fingers of her two oldest children. She acknowledged one incident in which C.C.'s fingers got twisted but said this was an accident. She said that C.C. had been late getting back from delivering newspapers and had to hurry to get ready for school. She had pulled at C.C.'s hand to take papers from her and inadvertently hurt her fingers. Other than that one incident, she denied having injured her children's hands.
¶ 38 I find this evidence is untrue. Mrs. C. had to say something about the one incident she described because C.C.'s teacher noticed injuries to both C.C.'s hands and asked C.C. about it. When C.C. advised that her mother had twisted her fingers because she was angry with her, the teacher called CAS. This was in November 1983, just one month after A.C. had sought the protection of the CAS and gone into their care. It is highly unlikely that the injuries to both of C.C.'s hands could have happened the way Mrs. C. described. Even more to the point, one such incident cannot explain the permanent damage to C.C.'s hands, both of which are twisted and misshapen with significant arthritis in the joints. Furthermore, A.C.'s hands are in the same state. I find that Mrs. C. deliberately and sadistically twisted the hands and fingers of both C.C. and A.C., just as they described at trial.
¶ 39 Mrs. C. also denied the accusation that she poured hot water on C.C. and A.C. There was only one incident which she acknowledged involving scalding A.C.'s scalp. Again, she had no choice but to acknowledge that injury since it was noticed by teachers and reported to the authorities. At the time, the records indicate Mrs. C.'s explanation was that there was a problem with the plumbing. At the trial, Mrs. C. said that she had inadvertently turned on the hot water tap instead of the cold. This is unlikely given the severity of the injury. In any event, it does not explain the repeated incidents of scalding to both C.C. and A.C., the scars from which were seen by others. C.C. testified, and I accept, that she still has pigmentation differences on her back from the most severe scalding incident at the hands of her mother. She spoke of her memory of kneeling on the bathroom floor afterwards as her mother tended to the peeling blisters on her back. This was a vivid recollection and I accept it as the truth.
¶ 40 Mrs. C. testified at trial that she treated all four children the same. She denied favouring W.C. and S.C. Marked as Exhibit 5 at trial was a letter written to Mrs. C. by a man named Y. in 1978. He had stayed with the C. family for two visits of a total of 16 days, one in 1976 and one in 1978. This would have been when the children were very young, not long after they came to Canada. The purpose of his letter was to urge Mrs. C. to stop treating her older two children so unfavourably compared to the younger two. He pointed out that he had never seen her hug them or hold hands with A.C. and C.C. they way she did with the younger two children. Y. was not called as a witness. His letter is hearsay and I therefore do not rely upon it. On cross-examination at trial Mrs. C. said that she couldn't remember if she had ever hugged A.C. and C.C. or held their hands. However, Mrs. C. was questioned about the Y. letter at her examination for discovery at which time she admitted that she did not hold their hands or hug them. At trial, Mrs. C. testified that she could not recall the grandmother criticizing her for treating A.C. and C.C. differently from the other two children. However, at her examination for discovery she said that the grandmother complained about that every day she saw her. It is clear that Mrs. C. treated A.C. and C.C. differently. She admitted as much to the CAS when both A.C. and C.C. ran away from home to get away from her, and she admitted as much at her examination for discovery. Her evidence at trial that she treated all four children the same is patently and manifestly untrue. She clearly favoured the younger two children and literally preyed upon the older two.
¶ 41 C.C. testified at trial that her mother sometimes hit her with objects, whatever was lying nearby and that she also often hit her with her hand. Mrs. C. testified at trial that she only ever hit C.C. with a wooden spoon to discipline her on occasion and that she never hit her with her hand. She was then confronted with her examination for discovery evidence at which she said (at p. 136, referring to occasions when she struck C.C.), "When I'm very upset and I don't have time to run to the kitchen to grab the spatula, that's when my hand goes up." Mrs. C. took the position at trial that she did not say that at her discovery and that the interpreter must have been mistaken. I do not accept that explanation.
¶ 42 At trial, Mrs. C. frequently responded to questions asked on cross-examination by saying she could not recall. While it is perfectly understandable that she would not remember every detail of daily routines with her children, it is incredible that she would have no memory of some of the things she claimed she could not recall. For example, she could not remember if she had ever told her two older children that they had "the stink of their grandmother." She could not remember why A.C. or C.C. left home and she could not recall being told by CAS that both children said they left home because she repeatedly beat them. In my opinion, those are not things a mother could possibly forget. Mrs. C. did not tell the truth.
¶ 43 In accepting the evidence of C.C. and A.C. over that of their mother, I am also influenced by the extent to which their evidence is corroborated by reports and records kept at the time by school authorities and the Children's Aid Society. The CAS first became involved in 1977 when C.C.'s kindergarten teacher observed that her legs were black and blue from the knees to the ankles. When asked, C.C. told her teacher that her mother had hit her. A report was made to CAS and Mrs. C. was interviewed by a worker. She admitted to having beaten C.C. with a wire coat hanger. Immediately thereafter, the C.'s transferred the children to another school. In subsequent schools from time to time, further reports were made. These included situations in which both C.C. and A.C. reported incidents of being scalded and/or beaten by Mrs. C. Typically, this would be triggered by teachers noticing scars or bruises and calling CAS. Apart from discussing the problem with the parents, the CAS took no steps to protect the children until after they had fled from their home and refused to return.
¶ 44 The defence argues that the CAS records fail to corroborate some of the more horrific examples of abuse which C.C. and A.C. now say occurred. It is suggested that those incidents not previously disclosed (e.g. choking, eye gouging, slamming heads into walls, holding heads under water, forcing J-cloths down throats) did not happen. I do not find that argument to be persuasive. C.C. and A.C. learned early on that grown-ups outside the home were not going to protect them from their mother. Both testified that every time a social worker came to investigate they would be beaten again for having spoken about what had happened to them. The later CAS records contain references to the children's reluctance to talk for fear of reprisals. In her diary, C.C. (then 12) referred to "the counselors who came along and caused new problems instead of solving them." Both A.C. and C.C. testified that they would never volunteer information to teachers or social workers but would only answer questions specifically put to them. Things like blows to the head, choking, eye gouging and being forced to swallow J-cloths until you retch, do not leave scars for teachers to notice. Notwithstanding repeated reports to CAS by teachers, C.C. and A.C. were not removed from the home. C.C. was not removed even after A.C. had fled and gone into care, refusing to return. These children learned not to trust others. The fact that they did not disclose everything at the time is scarcely surprising and in no way determinative of what actually happened to them.
¶ 45 The defence points to the fact that A.C. and C.C. continued to visit their mother after they had left home as evidence inconsistent with their allegations of the horrific brutality she inflicted upon them. I do not see this as conclusive. A.C. and C.C. both explained these visits as being more directed to maintaining contact with their two younger siblings for whom they had considerable affection. I accept that explanation. I also note that the CAS encouraged such visits. In addition, I find Dr. Butler's evidence to be quite persuasive on this issue. He testified that the actions of A.C. and C.C. in being able to return home without displaying animosity towards their mother is quite consistent with post-traumatic stress disorder. He felt this was akin to "Stockholm Syndrome," like a beaten dog, which returns to its abuser clinging to the hope that it will get better treatment.
¶ 46 I do find the testimony of W.C. and S.C. to be troubling. They both support their mother in this matter and it is obvious they are very close to her. I accept that they cannot comprehend that the mother they have loved could have committed these atrocities. They testified that they did not observe any such conduct. This is not surprising. Much of what Mrs. C. did was surreptitious. A.C. saw some, but not all of the things that happened to C.C. Likewise, C.C. saw some, but not all of the things that happened to A.C. Both A.C. and C.C. testified that, for the most part, Mrs. C. did not do these things in front of W.C. and S.C. W.C. was not quite 3 years old when A.C. and C.C. first came to Toronto. He was just under 11 years old when A.C. left home and almost 12 when C.C. left. Thus, he lived in the same home with A.C. between the approximate ages of 3 and 11, and with C.C. until he was 12. S.C. was a baby when her two oldest siblings came to Canada. She was 8 1/2 when A.C. left home and 9 1/2 when S.C. left. To the extent that they did witness some of the abuse of A.C. or C.C., it is possible that they were too young to remember or fully understand it or have pushed it into the background as it does not fit with their image of the mother they love.
¶ 47 It is also possible that, perhaps even unconsciously, W.C. and S.C. have tailored their evidence or reconstructed their memories in a manner favourable to their mother. The incident involving C.C.'s citizenship papers illustrates my point. C.C. testified that after she had left home she had asked her mother for her citizenship papers because she needed them in order to work and that her mother refused to give them to her. C.C. therefore waited for an opportunity when her mother was not at home, went into her mother's room and took her documents without her mother's permission. Mrs. C. confirmed in her testimony at trial that she kept the documents in an unlocked drawer in her room and that she had refused to give them to C.C. because she did not think she should be taking a part-time job. W.C., however, testified that he recalled the documents were in a locked suitcase and that C.C. broke open the lock to get them. S.C.'s evidence in respect to this incident is that C.C. came and ransacked her mother's room in order to get the documents.
¶ 48 It is interesting that both C.C. and Mrs. C. tell similar versions of this incident. However, both W.C. and S.C. recall C.C. as being the wrongdoer and as being destructive to achieve her ends. Their recollection of the event is inaccurate. They were considerably older at that time than they were when most of the incidents of abuse happened. I conclude that their evidence as to their mother's treatment of A.C. and C.C. is not reliable. That is not to say that they are dishonest witnesses. They have no doubt been affected by years of living with Mrs. C. and hearing her distorted version of the family history. They are devoted to her and wish to assist her. I discount their evidence.
| Conclusion: | Mrs. C. Caused Harm Sustained by the Plaintiffs |
¶ 49 Accordingly, I conclude that Mrs. C. treated A.C. and C.C. in substantially the manner they testified to at trial. This is precisely the kind of wanton, random and vicious cruelty that could be expected to produce the psychological damage which the experts have diagnosed both C.C. and A.C. as suffering from. I have no difficulty drawing a causal link between Mrs. C.'s acts and the harm sustained by A.C. and C.C.
E. OTHER CONTRIBUTING FACTORS
¶ 50 I next consider whether there were other factors which caused or contributed to the harm sustained by the plaintiffs. Mrs. C. alleges that Mr. C.'s treatment of the children was the major source of any injury they have sustained. The defence also points to the trauma to A.C. and C.C. of being uprooted from Korea at a young age and brought to a country where they knew nobody and didn't speak the language, the constant violence and conflict in the home between the parents, the conflict between Mrs. C. and the grandmother with C.C. and A.C. having divided loyalties because of their early ties with their grandmother, and the years A.C. and C.C. spent in the care of the CAS.
¶ 51 It is quite possible that years of living in foster homes or group homes, particularly for children who were already emotionally fragile, had some harmful effects. However, those homes were a refuge for C.C. and A.C. They went there to escape from their mother. Therefore, to the extent that any aspect of their current state can be said to be attributable to growing up as teenagers in foster care (which is debatable in any event), it is Mrs. C. who is to blame for their being there in the first place. There can be no reduction of damages for that cause.
¶ 52 It was no doubt stressful for A.C. and C.C. to be removed from the loving and secure environment they had with their grandmother in Korea and brought to Canada where they knew nobody and did not speak the language. However, I accept Dr. Comper's evidence that children are resilient and that this uprooting would have presented only a short-term problem if A.C. and C.C. had been received into a normal and loving family relationship. Moving to Canada from Korea at a young age cannot have caused, or even significantly contributed to, the psychological harm they have sustained. It may be the case that these children were particularly vulnerable to cruelty at the hands of their mother because they missed their grandmother and the secure environment they had with her. However, this also cannot be a factor that would reduce any damages for which Mrs. C. may be liable.
¶ 53 Likewise, any conflict between the grandmother and mother should not have created any long-term damage to the plaintiffs. The complicating factor here was Mrs. C.'s hatred of her mother-in-law and the fact that she was constantly critical of her to the children. Also, Mrs. C. frequently accused A.C. and C.C. of being like their grandmother or their father, with the obvious and sometimes express implication that this was a negative thing. To the extent this conflict caused harm, it is attributable to Mrs. C. in any event.
¶ 54 The real issue here is the extent to which Mr. C. is responsible for the harm suffered by A.C. and C.C. The nature of his responsibility is three-fold: (1) he inflicted harsh physical punishment directly upon A.C. and C.C.; (2) he assaulted his wife in the home, creating an atmosphere of violence that was harmful; and (3) he failed to protect A.C. and C.C. from their mother. The third basis is, of course, no defence for Mrs. C. and I will not deal with it further. The first two bases, however, probably did contribute in some measure to the harm sustained by the plaintiffs.
¶ 55 It is difficult, if not impossible, to determine the percentage of responsibility to be placed upon Mr. C. for the situation in which his two oldest children now find themselves. Mr. C. is not a defendant in this action and has not had an opportunity to defend himself against the accusations made by Mrs. C. However, given the defences raised by Mrs. C., it is necessary for me to make some factual determination as to the extent to which Mr. C. may be responsible. Before doing so, I must emphasize that I do not in any way condone the violence perpetrated by Mr. C. on his wife and four children, nor do I wish to minimize its harmful effects. The fact that I find his wrongdoing to be overshadowed by the brutality of Mrs. C. in no way excuses his conduct.
¶ 56 There are a number of factors which lead me to the conclusion that the violence perpetrated by Mr. C. had little impact on the eventual outcome for the plaintiffs. First, it must be noted that S.C. and W.C. were also exposed to the violence by Mr. C. against his wife and were also the victims of his harsh physical discipline. While it was no doubt unpleasant and stressful for them, it would appear that they have not suffered any long-term harm as a result. They both excelled academically. W.C. is now a lawyer and S.C. is completing her last year of law school. They are self-assured, well-adjusted young people, a stark contrast to their older brother and sister. Second, the punishments inflicted by Mr. C., while certainly overly harsh, were nevertheless seen as punishment. The children knew what they were being punished for and knew what to expect. Mr. C. was seen as being even-handed in his discipline. Although A.C. and C.C. would appear to have received slightly more punishment than the other two siblings, they understood this to be rationally connected to their age or to their failure to do as well in school as the other children. There was no perception that they were singled out for punishment while the other two children were favoured. Third, Mr. C.'s violence was not nearly as frequent as that of Mrs. C. Her attacks on both A.C. and C.C. were an almost daily occurrence. Fourth, the nature of the punishments he imposed was qualitatively different from that of Mrs. C. He sometimes made the children squat and waddle about like ducks (which admittedly is bizarre), but the usual form of discipline from him was lashing the children on the buttocks with a rod. It was extreme and cruel, but it pales in comparison to punching, finger-twisting, choking, slamming heads into walls, stuffing J-cloths down throats, scalding, and near-drowning. Finally, the perception of both A.C. and C.C. themselves is instructive. Both saw their father as a strict disciplinarian. They are not attached to him and are indifferent to whether they ever see him. They do not consider what their mother did to be discipline. For her, they have mixed feelings of fear and loathing, feelings which were apparent from their writings as children and which they expressed to the authorities when they left home in their early teens.
¶ 57 Dr. Comper testified that if we assumed that all of the other circumstances in the lives of A.C. and C.C. remained the same but removed any violence by their mother, he did not believe they would have a post-traumatic stress disorder today. This disorder develops in response to feelings of helplessness in the face of unpredictable and random acts of violence. He believes that the plaintiffs would have been able to process the harsh discipline from their father and survive it. However, according to Dr. Comper, Mrs. C.'s treatment of A.C. and C.C. should not be properly characterized as discipline at all, but rather as systematic brutality. He testified that if he were required to put a percentage on it, he would say Mrs. C. would be 95% responsible for the ultimate harm suffered by A.C. and C.C.
¶ 58 Dr. Butler testified that he was aware of the harsh discipline meted out by Mr. C., but that this did not alter his opinion that the post-traumatic stress disorder and related conditions suffered by A.C. and C.C. were caused by their mother. In his opinion, it was significant that the plaintiffs saw their father's discipline as predictable, whereas their mother's violence was not. He described Mrs. C.'s acts as "not really punishment, more like cruelty" or "senseless violence." He felt that the plaintiffs were able to deal with their feelings surrounding their father's abuse, but that the nature of their mother's conduct was so traumatic for them that it resulted in the disorders they have today.
¶ 59 I conclude that the only contributing factor to have any impact of the plaintiff's injuries is the physical abuse by their father. However, it was a very minor factor compared to that of Mrs. C. Like Dr. Comper, if I had to put a number on it, I would say 5%.
F. ANALYSIS OF LEGAL ISSUES
¶ 60 The statement of claim was issued in May 1999. The cause of action is framed solely as breach of fiduciary duty and the only defendant is Mrs. C. The defendant alleges that she is prejudiced by the plaintiffs' failure to sue Mr. C. and submits that their claim should be dismissed based on the "clean hands" doctrine and for delay. Alternatively, she argues blame should be apportioned and that only a small percentage of liability should be attributed to her.
Breach of Fiduciary Duty
¶ 61 It is clear in law and in fact that Mrs. C. owed a fiduciary duty to her children and that her assaults upon them were a breach of that fiduciary duty. The relationship between a parent and child bears all of the classic indicia of a fiduciary relationship. The parent has scope for the exercise of considerable power and discretion and can exercise that discretion unilaterally in a manner adverse to the child. The child is obviously at the mercy of the parent's discretion. Indeed, the Supreme Court of Canada has held that there are few situations more obviously fiduciary in nature than the relationship between a parent and child: M.(K.) v. M.(H.) (1992), 96 D.L.R. (4th) 289 at 321-328 (S.C.R.). Further, the Supreme Court held in that case (at p. 327) that "the essence of the parental obligation in the present case is simply to refrain from inflicting personal injuries upon one's child." That case involved sexual assault by a father on his daughter, but the principles it establishes are equally applicable to the assaults by Mrs. C. on her children.
Effect of Mr. C. Not Being a Party
¶ 62 The plaintiffs are under no obligation to sue their father. They see him as having been harsh, but they do not see him as responsible for their current problems. Even if he were responsible for a greater proportion of harm than Mrs. C. (which is not the case), the plaintiffs are not obliged to sue him if they do not wish to. If Mrs. C. wanted her former spouse in the lawsuit, it was up to her to take the appropriate steps to try to have him added.
¶ 63 The defence argues that it was not possible to add Mr. C. as a third party because the action is framed in equity as breach of fiduciary duty, rather than in tort. First of all, I do not necessarily accept that as a correct proposition of law. However, I do not need to decide the point in this particular case, and I therefore will leave it for another case where it can be properly addressed in a relevant factual context. In the case before me, it is clear that the cause of action pleaded is available to the plaintiffs as a question of law and has been made out on the facts. There is no obligation on a plaintiff to plead other causes of action if one is sufficient. If the defendant is disadvantaged as a result (about which I make no finding), that is wholly irrelevant. She has breached her fiduciary duties to her children and she is fully liable for the consequences of her conduct, regardless of whether they also, or alternatively, could have sued her for the tort of assault.
Clean Hands Doctrine
¶ 64 There is no evidence whatsoever to support the argument that there has been any conduct by either of the plaintiffs to prevent them from seeking equity from the courts. The "clean hands" doctrine has no legal or factual application in this case.
Apportionment
¶ 65 Mrs. C. submits that I should apportion liability as between her and Mr. C. It is also suggested that to the extent the plaintiffs were harmed by other factors, this should reduce the damages recoverable from Mrs. C. Both submissions are rejected.
¶ 66 It is a sad reality that Mrs. C.'s abuse of the plaintiffs was not the only bad thing that happened to them. They were particularly vulnerable because of being separated from their grandmother when they were young and thrust into an alien environment. They lived in an environment that was hostile and combative and witnessed acts of violence committed by their father against their mother. They were also the recipients, along with their other siblings, of harsh physical discipline at the hands of their father. Arguably, the plaintiffs were not well served by those vested with the authority to protect them. Notwithstanding numerous reports to the authorities, these children were left with abusive parents until they took the initiative to run away from home. Their subsequent lives in foster care were not easy. It is no doubt true that all of these difficult experiences had some impact on the psychological well-being of A.C. and C.C. as they were growing up, and are factors contributing to the condition they ultimately find themselves in. However, as I have already noted above, the circumstances prior to the plaintiffs coming to Canada merely made them more vulnerable to harm by the abuse of their mother. Those circumstances fall within the classic thin-skull situation and do not reduce the damages recoverable from Mrs. C. With respect to the subsequent events involving the CAS and foster care, it was Mrs. C.'s conduct that required the children to seek foster care. There was nothing in those subsequent experiences that could be seen as an independent intervening event that created fresh damages or liability. Therefore, there is no reduction of the damages recoverable against her on this basis either.
¶ 67 Mrs. C.'s argument in respect of apportionment between her and Mr. C. raises issues of causation. Accepting for the sake of the argument that Mr. C.'s conduct caused harm to the plaintiffs, this is not a situation where the harm caused by each parent can be separated (as might be the case, for example, where one person injured a plaintiff's arm and another person injured the plaintiff's foot). The current and permanent psychological harm to the plaintiffs, which is the subject matter of this action, is indivisible. See Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 24-25.
¶ 68 As I have already ruled above, Mrs. C. was the primary cause of the harm to the plaintiffs. Although Athey is a negligence case dealing with causation in tort, I believe the general principles of causation set out there are applicable in the case before me. That case confirms that it has never been necessary for a plaintiff to prove that the defendant's negligence was the sole cause of the injury. Major J. illustrates this proposition at paragraph 17 of Athey by referring to an example from page 193 of Professor J. Fleming's The Law of Torts, 8th ed. (Sydney: Law Book Co., 1992) involving a lighted match dropped in a wastebasket. The dropping of the match cannot start the fire alone. In addition to the match, one needs the presence of combustible material, oxygen and other conditions conducive to starting a fire. However, the person who drops the match in the wastebasket is nevertheless liable for damages from the ensuing fire, notwithstanding that his act alone would not have been enough to cause the fire. Thus, although Mrs. C. may not have been the only source of emotional harm to the plaintiffs, she is the equivalent of the person dropping a burning match onto combustible material. She is liable for all of the damage sustained.
¶ 69 Also as noted in Athey, (at paragraph 14), "the general, but not conclusive, test for causation is the `but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant." The Court in Athey then went on to rule that even where the "but for" test is unworkable, the defendant will be liable if it can be shown that the defendant's negligence "materially contributed" to the occurrence of the injury: Athey, paras. 14-20. In this respect, the defendant who materially contributed to the plaintiff's injury will be 100% liable to the plaintiff even where there are other causal factors and even where the defendant before the court may not be the primary causal factor.
¶ 70 Applying the Athey principles to the case before me, it is apparent that Mrs. C. is responsible to the plaintiffs for 100% of the harm they have suffered. First, I have found that she was the primary cause of their condition. "But for" the actions of Mrs. C., in breach of her fiduciary duty to her children, they would not have suffered this harm. Further, even if the "but for" test is seen as too simplistic, it is clear that Mrs. C. was at the very least a material contributor to the harm suffered by the plaintiffs. It is not appropriate in these circumstances to apportion any part of the responsibility to Mr. C. He is not a party to this action. If liability should be shared as between Mr. C. and Mrs. C., that is something that must be worked out between the two of them, through litigation if necessary. It has nothing to do with the plaintiffs in this action.
¶ 71 In this regard, I consider that the result would have been the same if the plaintiffs had sued their mother in tort, rather than for breach of fiduciary duty. The apportionment of liability between multiple tortfeasors is a creation of statute. Such apportionment permits the defendants to apportion responsibility amongst themselves. However, it has no effect on the plaintiff's right to collect 100% of his or her damages from any individual tortfeasor. "Each defendant remains fully liable to the plaintiff for the injury, since each was a cause of the injury": Athey at para. 22.
Delay
¶ 72 Mrs. C.'s abuse of A.C. ended in 1983; her abuse of C.C. ended in 1984. This action was commenced in 1999, more than six years after both of the plaintiffs had reached the age of majority. However, there is no fixed limitation period in respect of actions for breach of fiduciary duty, whether explicitly or by analogy: M.(K.) v. M.(H.), at p. 328-333.
¶ 73 Since this action is based in equity, it is subject to the defence of laches. However, I find that defence is not established in this case. Not every delay in commencing an action will give rise to the laches defence. The Supreme Court of Canada has held that there are two distinct branches to the defence: (i) delay which constitutes acquiescence in the defendant's conduct; or (ii) delay which results in prejudice to the defendant as, for example, where the defendant has altered her position, or circumstances have developed that make the prosecution of the action unreasonable: M.(K.) v. M.(H.) at 334-336.
¶ 74 The delay in bringing this action was not excessive. It is debatable whether any delay can be said to constitute acquiescence to the kind of conduct at issue in this case. It is among the worst kinds of betrayal imaginable. In any event, there was certainly no acquiescence here. The plaintiffs have clearly, and quite understandably, never forgiven their mother. Further, there is no evidence of any prejudice to Mrs. C. as a result of the delay and no circumstances that would make it inequitable for the action to proceed.
REMEDY
¶ 75 In their statement of claim, the plaintiffs claim compensation for breach of fiduciary duty in the amount of $500,000.00 each.
¶ 76 In recent years, courts have tended to merge the principles of law and equity when necessary to achieve a just result. The redress available to a plaintiff in a given case is, therefore, unlikely to vary based on whether the action is framed in equity or tort, unless there are different underlying policy considerations mandating different treatment: Canson Enterprises Ltd. v. Broughton & Co. (1991), 85 D.L.R. (4th) 129, [1991] 3 S.C.R. 534; M.(K.) v. M.(H.) at 336-337. Equitable compensation is available to redress equitable wrongs such as breach of fiduciary duty on much the same basis as compensatory damages would be available in a torts case. The concept of equitable compensation is also broad enough to encompass what would in appropriate circumstances be awarded as punitive damages in a tort case. In M.(K.) v. M.(H.), the Court held that redress for the plaintiff (a victim of incest) would be the same whether calculated in tort or breach of fiduciary duty. LaForest J., writing for the majority, held at p. 337:
The question in this appeal is whether there are different policy objectives animating the breach of a parent's fiduciary duty as compared with incestuous sexual assault. In my view, the underlying objectives are the same. Both seek to compensate the victim for her injuries and to punish the wrongdoer. The jury award of general damages was made with the full knowledge of the injuries suffered by the appellant and her rehabilitative needs. The same concerns would apply in assessing equitable compensation, and as such I would decline to provide any additional compensation for the breach of fiduciary obligation. The punitive damages award should also not be varied in equity. Of course, equitable compensation to punish the gravity of a defendant's conduct is available on the same basis as the common law remedy of punitive damages ... |
¶ 77 In my view, these principles apply in the case before me. Both A.C. and C.C. have permanent physical injuries and scars, which were inflicted upon them by Mrs. C. As a result of their mother's physical and emotional abuse, they also have permanent psychological impairments that are appropriately characterized as psychiatric disorders rather than mere emotional upset. Given the nature and frequency of the abuse, it was not only foreseeable, but likely inevitable, that physical and psychological harm would result. The harm they sustained is within the range of harm that could be expected. The nature and extent of the plaintiffs' symptoms are typical of victims assaulted by their parents or other persons they trusted. There is no question but that all of these types of harm are compensable in damages. In addition to these non-pecuniary damages, both A.C. and C.C. are entitled to compensation for the amount by which their past and future earnings are reduced because of the injuries they have sustained.
¶ 78 It is relevant and persuasive to look at the measure of damages awarded in assault cases with similar factual backgrounds as a guide to the appropriate measure of damages in this case. Given the horrific and sustained nature of the abuse by Mrs. C. and its effects on the plaintiffs, damage awards in incestuous sexual assault cases are also a relevant measure of damages to consider in this case. Reviewing damage awards in roughly equivalent cases, I find that the range of damages for general damages and aggravated damages is from about $50,000.00 to $150,000.00, although there are certainly cases both above and below that range. Also, within the range, there are some situations where the conduct and/or the harm sustained is not as severe as in this case, and there are also cases where it is worse. (See: P. v. F. (1996), 24 (B.C.L.R.) (3d) 105 (B.C. S.C.); D.C. v. K.C. (1993), 108 Nfld. & P.E.I.R. 314 (Nfld. S.C.); B.(P.) v. B.(W.) (1992), 11 O.R. (3d) 161 (Ont. Ct. Gen. Div.); R.L.L. v. R.L. (2001), 89 (B.C.L.R.) (3d) 325 (B.C. C.A.); A.D.Y. v. M.Y.Y. (1994), 90 (B.C.L.R.) (2d) 145 (B.C. S.C.); D.A.A. v. D.K.B. (1995), 27 (C.C.L.T.) (2d) 256 (Ont. Ct. Gen. Div.); J.D.B. v. F.M., [1998] O.J. No. 3786 (Ont. Ct. Gen. Div.) (Quicklaw); C.S.F. v. J.F., [2002] O.J. No. 1350 (Ont. Sup. Ct. Jus.); G.K. v. D.K., [1997] O.J. No. 2863 (Ont. Ct. Gen. Div.) (Quicklaw), aff'd [1999] O.J. No. 1953 (Ont. C.A.) (Quicklaw), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 415; L.F. v. J.R.F., [2000] O.J. No. 2672 (Ont. Sup. Ct. Jus.), aff'd [2001] O.J. No. 1720 (Ont. C.A.) (Quicklaw), S.L.C. v. M.J. (1996), 37 Alta. L.R. (3d) 90 (Q.B.); Bagla v. Kashyap (July 22, 1996), Ferrier J. (Ont. Ct. Gen. Div.), unreported; S.P. v. F.K., [1996] 150 Sask. R. 173 (Q.B.) and the cases referred to therein; M.K. v. S.K., [1999] O.J. No. 3378 (Sup. Ct. Jus.) (Quicklaw)). The assaults on the plaintiffs were frequent, almost daily occurrences. They were sadistic, more like torture than punishment. They occurred over many years, beginning when the children were very young. The effects on the plaintiffs were profound, at the time and since. In a very real way, these plaintiffs were robbed of their childhood. In these circumstances, and in light of other awards in analogous cases, I find the appropriate amount of compensation to reflect the equivalent of general and aggravated damages to be $100,000.00 for each plaintiff.
¶ 79 This is an appropriate situation for punitive damages, as a deterrent and to mark the court's strongest condemnation of the defendant. Mrs. C. has never faced criminal charges or any other punishment for her wrongdoing. Her betrayal of her children was horrifying. I therefore am adding a further $25,000.00 for each plaintiff to reflect the equivalent of punitive damages at common law.
¶ 80 In addition to the non-pecuniary compensation I have awarded, C.C. and A.C. are entitled to compensation to reflect their loss of earnings both past and future as a result of their mother's wrongdoing.
¶ 81 Both A.C. and C.C. graduated from high school with average or lower results. They did not go on to community college or university. Dr. Comper testified, and I accept, that their level of achievement at high school was less than would otherwise have been the case but for the effects of the years of abuse by their mother. The abuse and its psychological effects resulted in a reduced level of, as well as a reduced ability to concentrate on academic studies or work. The plaintiffs have been employed since graduation at relatively low-level jobs, interspersed with periods of unemployment. Even assuming their level of education is the best they would have achieved regardless of their mother's abuse, the psychological impairments they have, (as well as, to a much lesser degree, some physical impairments), will greatly reduce their employability and the likelihood they will advance or excel if employed. I have no hesitation in concluding, however, that they would at least have achieved a community college level education had they had a childhood free from the abuse they endured at the hands of their mother. Both their parents are intelligent and university educated. Both of their younger siblings excelled academically, achieving both undergraduate and law school degrees. Education was highly valued in the family. In fact, there is a strong likelihood that they would have gone on to university, if not post-graduate work or a professional degree.
¶ 82 Dr. Comper estimated that if one assumes C.C. would never have advanced past high school, she will nevertheless have an average reduced earning capacity of approximately $3591.00 per year as a result of the impairments caused by her mother (based on an expected retirement age of 65 and her history of earnings). If one assumes that she would have achieved a community college diploma, and a commensurately better job, the differential rises to about $12,541.00 per year. The upper limit would be to assume that she would have completed a law degree (or equivalent) and a professional income, which would result in an average earnings reduction of $90,031.00 per year. The actuarial evidence at trial, which was not challenged, establishes a present value of the lost earnings for the first scenario (high school education) at $80,130.00; for the second scenario (community college) at $279,840.00; and for the third scenario (professional level degree) at $2,008,952.00.
¶ 83 The first scenario is unrealistically low. The third scenario is probably too high in that it does not take into account any negative contingencies. I also find the second scenario to be overly modest. There is every reason to believe C.C. would have either have gone on to university level education, or achieved a high level of employment income with a community college degree. I believe that a conservative estimate of C.C.'s earning loss attributable to her mother's breach of fiduciary duty is somewhere between $280,000.00 and $2 million.
¶ 84 Similarly, I believe A.C. would have at the very least completed a community college program and obtained employment at the upper end of the scale for that level of education. More likely, he would have completed university, although probably not a professional degree program. Based on the same three scenarios (high school, community college and professional degree), Dr. Comper projected an average yearly earnings loss for A.C. at $16,280, $34,148.00 or $97,431.00 respectively. Based on the actuarial evidence, the present value of the lost earnings would be either $345,201.00, $724,074.00 or $2,065,927, depending on which scenario is accepted. As was the case with C.C., I reject the first scenario as unrealistically pessimistic and find that the likely loss of income is between the other two scenarios, or in A.C.'s case somewhere between $724,074 and $2 million.
¶ 85 The difference between the projected losses in scenario two as between C.C. and A.C. is in part because C.C. has had a better earning record to date, and in part on the statistical projections which assume a higher salary for males than for females. Although I recognize that to the present time C.C. has actually achieved better earnings than A.C., it is not necessarily the case that this trend will continue. I also reject the assumption that but for their mother's abuse, A.C.'s earning potential with a community college diploma would have been higher than C.C.'s. I see no basis for distinguishing between them in assessing the level of compensation they are entitled to from their mother. In my view, the appropriate quantum for each of them under this head of compensation is $850,000.00. That brings the total compensation for each plaintiff to $975,000.00.
¶ 86 The statement of claim seeks compensation of $500,000.00 per plaintiff. However, during the course of the trial, Mr. Haines sought leave to amend the statement of claim to reflect the amount of damages ordered. It was apparent from the expert reports produced prior to trial that the range of damages being claimed by the plaintiffs exceeded the amount in the statement of claim. There is no prejudice to the defendant if the claim is amended. The defence would have been the same if the statement of claim had sought $975,000.00 per plaintiff from the outset. Accordingly, paragraph 1(a) of the statement of claim is amended to change $500,000.00 to $975,000.00.
¶ 87 The plaintiffs shall also be entitled to interest on the non-pecuniary compensation of $125,00.00 each, at the Courts of Justice Act rate from the date of the commencement of this action, and costs. If the quantum or scale of costs cannot be agreed upon between counsel, I may be spoken to.
MOLLOY J.
QL UPDATE: 20030310
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