Wednesday November 03 2021

General publication

Quebec Superior Court Sets Parental Responsibility Precedent

On July 20, 2021, an impactful decision in both civil and family law was rendered by the Quebec Superior Court regarding compensation to victims of sexual abuse.

In the case of N.B. v. G.A. (2021 QCCS 3179), the Honourable Bernard Jolin granted $806,306.00 in damages to the Plaintiff who was victim of sexual assault by her uncle between 1980 and 1987 while visiting her grandparents over long weekends or family gatherings and celebrations. She would often share a bed with him, and she testified to having been abused 10 to 12 times over the course of her visits to the home.

The judgment describes that, following the first instance of sexual abuse, the Plaintiff asked her mother to modify the sleeping arrangements such that she could occupy the couch in the living room. Not only did her mother refuse the request, as indicated in the decision, but she insisted that her daughter continue to share the bed with her uncle so as “not to mess up grandma’s sheets”.

The plaintiff testified to the effect that every incident of abuse was similar: her uncle would return home from a late night out with friends and would be the last in the house to get into bed. Upon arrival at the residence, he would close his bedroom door and assault her. Moreover, in 1983, the victim’s uncle was accused and pleaded guilty to the gang rape of a 14-year-old.

This article looks at two of the four important questions addressed by the Superior Court judge, namely whether: (1) the Plaintiff succeeded in demonstrating that she was sexually abused; and (2) whether or not her parents failed to fulfill their legal obligations as parents.

As highlighted in this decision, in establishing civil responsibility, one must prove on a balance of probabilities that they have cause. Despite the fact that there were notable discrepancies both in the testimony of the Plaintiff, as well as in those of the defendants, Judge Jolin drew inspiration from the Supreme Court of Canada decision R v. W, which guides the court in matters of testimony provided during one’s adulthood of events having taken place in childhood. When such a statement is given, and where discrepancies may stand out regarding recalling a specific time or place, the Court must take into account the age of the witness at the moment in time, in question. Judge Jolin ruled that despite the inconsistencies, one thing remained unchanged and unwavering in the Plaintiff’s statement, which was that she was sexually abused, between the ages of 9 and 16, by her uncle whenever she visited her grandparents’ home.

As for the second question, the judge reiterated very important and applicable legislation, notably:

Article 39 of the Charter of Human Rights and Freedoms, which indicates that “every child has a right to the protection, security and attention that his parents or the persons acting in their stead are capable of providing”.

Article 2.2 of the Youth Protection Act, reminding the parties that the primary responsibility for the care, maintenance and education of a child and for ensuring his supervision rests with the parents.

Perhaps most importantly, Judge Jolin wrote that everyone upon whom a legal obligation is imposed has the responsibility to see to it that they fulfill this obligation. This principle is solidified by article 1457 of the Civil code of Quebec, which holds those in default of fulfilling their legal obligations consequently responsible. Upon review of the facts, Judge Jolin held the parents of the Plaintiff liable in part for the sexual abuse she fell victim to.

The Plaintiff’s parents contended not only to have been responsible in their role as a mother and father, but that the abuse was not a result of their negligence as they had no way of knowing it was occurring. The Court did not share this opinion, explaining that a reasonable adult, in the same circumstances, would have known that intimidating their child into sharing a bed with her uncle, even after knowing he was previously convicted of gang-raping a 14-year-old girl, would have put her at risk of being sexually assaulted.

The Superior Court judge stated that if the parents could doubt the risks of their daughter sharing a bed with the uncle before such time, there was certainly no longer any doubt after the uncle was convicted and they still chose to do nothing about it.

Regarding the testimony given by the plaintiff’s mother, during which she expressed that her daughter never subsequently objected to sharing the bed with her uncle, the Court seemed particularly flabbergasted, writing that, “[t]his proposition is quite surprising. First of all, [the mother] suggests that it was up to [her daughter], at the age of 9 years, to use her judgment and decide on her own if she should share the bed with [her uncle] or not. The Court cannot condone such an abdication of the duty of surveillance and protection from which [the Plaintiff] must benefit.”

When questioned as to why she did not attempt to assist her daughter in paying for therapy after the Plaintiff attempted suicide, the mother testified: “Had I done something, I would still be paying today, and I wouldn’t have my condo in Florida.”

Judge Jolin awarded the plaintiff $806,306.00 in damages for loss of past and future income, therapy costs, non-pecuniary damages for negligence on the part of her parents, and finally condemned them and the Plaintiff’s uncle to payment of punitive damages.

Vanessa De Minico, Attorney-at-Law

In collaboration with Rachel Muzaic, articling student

This text contains legal information of a general nature and should not replace legal advice with a lawyer or notary who will take into account the particularities of your situation.

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