Happy 10th Birthday, Parental Responsibility Act!

1 mai 2010 | Patricia J. Forte | Kitchener-Waterloo

( Disponible en anglais seulement )

This year marks the 10 year anniversary
of the coming into force of the Parental
Responsibility Act
(“the Act”) in Ontario. 

The Act provides victims of property
crime committed by youth under 18 with a simple method to recover their losses.
The Act deems parents to be
responsible for the intentional conduct of their children causing property loss
or damage (including theft and damage to vehicles), and economic loss related
to the loss or damage to property.  The Act deals with
wrongdoing committed by children in circumstances where the parents are to some
extent at fault.  The mechanism for recovery is through the Small
Claims Court, which has recently increased its monetary jurisdiction to $25,000.

While police charges or a police report
is not required to start or prove a case, proof of a criminal conviction is
proof that the child committed an intentional act.  The imposition of
criminal sanctions against a minor does not prevent a civil lawsuit against the
child.  There is no clear age limit for responsibility or general
immunity from liability for intentional conduct in civil law. 

Under the Act, a plaintiff, including an
insurer bringing a subrogated claim, need only prove:

  1. That
    the child caused the property damage or loss;
  2. That
    the defendants are the parents of the child; and
  3. The
    amount of the damage.

A reverse onus applies to relieve parents
of strict liability.  Parents can rebut a
presumption of liability if they can prove:

  1. That
    they were exercising “reasonable supervision” of the child at the time the
    child engaged in the activity that caused the loss or damage and made
    reasonable efforts to prevent or discourage the child from engaging in the
    activity, or
  2. That
    the activity that caused the damage was not intentional.  (In other words, parents may be able to avoid
    liability if they can prove that the damage was caused as a result of an
    accident or negligence.)

There are several factors that a court
can consider in determining whether parents have exercised “reasonable
supervision” over the child and made reasonable efforts to prevent or
discourage the child from engaging in activity, including:

  • the
    child’s age;
  • the
    child’s prior conduct;
  • the
    potential danger of the activity;
  • the
    child’s physical or mental capacity;
  • any
    psychological or mental disorder of the child;
  • whether
    the child was under the direct supervision of the parent when the activity
    occurred;
  • whether
    the parent acted unreasonably in failing to make arrangements to supervise the
    child;
  • whether
    the parent sought to improve parenting skills;
  • whether
    the parent sought professional assistance for the child to discourage the
    problem activity resulting in the loss or damage; and
  • any
    other relevant factor.

Insurers can use documents otherwise
sealed under the Youth Criminal Justice
Act
to help prove their case where the child has been found guilty of a
property damage offence. Insurers can apply for disclosure of the child’s
criminal records, subject to certain restrictions noted in the Act.

The Parental
Responsibility Act
came into force on August 15, 2000. There are few cases
adjudicated under the Act that are reported. 
Few Small Claims Court judges issue written reasons of their
decisions.  Even then, it is uncommon for
those decisions to be reported.

There are two reported Small Claims Court decisions on
point: Shannon v. T.W. (Litigation guardian of) decided in
2002 and Cinnirella v. C.C. (Litigation guardian of) decided in 2004.  In both cases, judgments were awarded against
the children.  Both claims were dismissed
against the parents because they met the reverse burden of proof by showing
that they exercised “reasonable supervision” over their children.

The
track record dismissing claims against parents is small, and each case is
decided on its facts.  With the increase
in the monetary jurisdiction of the Small Claims Court to $25,000, insurers
should keep in mind the advantages offered by the Parental Responsibility Act when pursuing subrogated claims founded
on intentional conduct by minors.