It’s always rubbed me the wrong way that parents can cause their children so much harm and so much distress, only to leave their children to pick up the pieces and clean up the damage once those children are grown up.
We don’t accept this sort of thing in other areas of life. If a person is driving their car recklessly, we expect that they (and/or their insurance) will pay for any damage they cause, including to other people. Why don’t we expect parents to clean up after themselves when they cause harm to their kids?
In my opinion, we should.
I am a student-at-law at Marrow Law, and anticipate being called to the Bar of Alberta later this spring. The law firm I work at supports, represents, and advocates for persons who have been mistreated in many different contexts; and I look forward to continuing that work once a lawyer myself.
While any legal advice will necessarily depend on, and require tailoring to, the individual facts of each person’s case, as a general matter I for one think it’s time that we as Canadians recognize a tort of parental negligence and empower abused children to seek monetary damages from their abusive caregivers. In other words: I think it’s time for children to start suing their negligent parents in court.
Don’t we already have that?
Let’s be clear about what we’re talking about here.
In Canada, parental negligence has historically been assessed in terms of a parent’s liability for the actions of their children.
Nova Scotia’s anti-cyberbullying legislation—the Intimate Images and Cyber-protection Act, SNS 2017, c 7—is a case in point. Under that legislation, a person (or, if a child, their parents) who is the victim of cyberbullying by a minor in that province may take the parents of that minor to court and seek financial damages.
Similarly, in the seminal case of Floyd v Bowers, the Ontario Superior Court of Justice found parents liable in negligence when they left a pellet gun and ammunition unattended and their minor child used that gun and ammunition to harm another person.
When I talk about parental negligence here, I’m not talking about parents being found liable for the conduct of their children. That’s important, yes. But I have something different in mind.
What I’m talking about, instead, is parents being found liable for their conduct towards their children.
A tort of parental negligence?
A “tort” is a type of claim you make against someone in court.
The tort of negligence occurs when someone who owes you a duty of care breaches the standard of care that attaches to that duty and thereby causes you damage.
It’s a highly flexible basis for suing someone that can account for unusual and novel situations: like when a person accidentally starts their snowmobile without the kickstand up, causing it to shoot forward into a school building and hit a gas pipe, which in turn leaks gas into the school building and blows it up (a real case from 1971 in Manitoba).
Child abuse of any kind is, however, neither unusual nor novel. It is common and all-too familiar to many. Peer-reviewed research on the prevalence of “child maltreatment in Canada” published earlier this year found, on the basis of self-reporting by youth, that emotional abuse and exposure to intimate-partner violence are particularly common: an estimated 44.9 per cent of youth report the former, and 39.4 per cent report the latter.
While physical abuse, sexual abuse, and neglect are relatively less common, they are still reported all-too frequently by girls and, even more so, by youth whose genders do not align with their sex as assigned at birth. An estimated 37.5 per cent of these “gender-diverse” youth report physical abuse, 22.4 per cent report sexual abuse, and 17.9 per cent report physical neglect. A staggering 83.7 per cent report emotional neglect.
We are talking about children who are growing up in unsupportive, unsafe, violent environments—environments that are being made to be this way, in all too many cases, by parents themselves. At the very least, child victims of abuse deserve some sort of restitution for their experiences of violence.
Something needs to be done. The epidemic of child abuse in this country cries out for a legal remedy. And tort law may be part of the solution.
Give me the legal details…
The tort of negligence has four components that must be established on a balance of probabilities by the person bringing the lawsuit: in other words, these four things must be shown in court to be more likely than not to be present in a given case. The four things are: (1) duty, (2) breach, (3) causation, and (4) damage.
A duty of care exists where someone owes legal obligations to another person. In broad strokes, the courts will recognize a duty of care where there is reasonable foreseeability of harm and proximity between the persons involved; and there are no “residual policy considerations” to negate recognition of that duty.
In my opinion, it is plain and obvious that parents should be able to reasonably foresee that, for example, molesting or neglecting or inflicting emotional distress upon their children will cause those children meaningful harm. Likewise, there is clear proximity between parents and their children: the relationship between them is “close and direct,” and children are wholly reliant on their parents for care.
A standard of care attaches to every duty of care: this is the kind of conduct that a person must minimally engage in to satisfy their duty. Fortunately, this, too, is not hard to determine with respect to parents and their children. Many provinces have codified statutory definitions of “family violence” or the like in their family law legislation. In Alberta, for example, the Family Law Act, SA 2003, c F-4.5, specifies that “family violence” includes, with limited exceptions, “behaviour by a family or household member causing or attempting to cause physical harm to the child or another family or household member, including forced confinement or sexual abuse, or causing the child or another family or household member to reasonably fear for his or her safety or that of another person.”
Again, we’re not talking about some unreasonably high standard of behaviour here. That parents should not beat their children into oblivion, or deprive them of the necessities of life, or engage in sexual acts with them is a pretty minimal standard to hold parents to. When they breach it, parents should be liable.
And at this point in time, we know a lot about the devastating long-term impacts of traumatic experiences, being the victim of child abuse included. These include physical injuries, of course, which can last a lifetime depending on their severity; but they also include emotional and psychological injuries, like posttraumatic stress disorder. Causation—whether the damage to a child would not have occurred “but for” the conduct of their parents—should not be much of an issue, conceptually, in child abuse cases (recognizing, though, that a child’s ability to prove causation as a matter of fact will depend on the evidence available in their particular case).
The amount of damage will vary from case to case, but provided it is present, it makes sense that a parent should be liable for inflicting it.
Where do we go from here?
There are two ways we can build recognition for the tort of parental negligence as I have described it here.
The first is through legislative reform: Canada’s governments can pass legislation to define the scope of parents’ civil liability in child abuse cases.
If that seems unlikely to occur, have no fear: the courts can themselves recognize parental negligence when given the opportunity to do so in the cases that come before them.
Which is to say, it may be time for child-abuse survivors to start seeking out legal counsel and representation. Lawsuits against their parental abusers could be an effective way for these survivors to receive some kind of restitution for the harm they have suffered.
