C.H. v. M.H., (2005) 264 Sask.R. 226 (QB)

• Judge: Chicoine, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: Monday April 25, 2005
• Jurisdiction: Saskatchewan
• Citations: (2005), 264 Sask.R. 226 (QB);2005 SKQB 193

C.H. v. M.H. (2005), 264 Sask.R. 226 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. MY.057

C.H. (plaintiff) v. M.H. (defendant)

(1998 Q.B. No. 1603; 2005 SKQB 193)

Indexed As: C.H. v. M.H.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Chicoine, J.

April 25, 2005.

Summary:

The plaintiff sued the defendant, her adoptive brother, for damages arising from sexual assaults which the defendant committed on her starting when she was around nine years old. The plaintiff had also been sexually assaulted by her adoptive father and she had had a sexual relationship with another adoptive brother.

The Saskatchewan Court of Queen's Bench found that the plaintiff's life had been severely impacted by the sexual abuse inflicted on her by the male members of her adoptive family and that the plaintiff's adoptive father had caused the greater portion of the damage. The court concluded that the defendant was 35% liable for the plaintiff's damages, which it assessed at $124,000. The plaintiff was awarded judgment against the defendant for $43,400.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - [See Damage Awards - Topic 627].

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - The plaintiff sued the defendant, her adoptive brother, for damages arising from sexual assaults which the defendant committed on her starting when she was around nine years old - The plaintiff had also been sexually assaulted by her adoptive father and she had had a sexual relationship with another adoptive brother - The assaults by the defendant involved physical force and threats - The plaintiff used alcohol and drugs to fight depression - Low self esteem - Sporadic work history - Difficulty in relationships - Suicide attempts - The Saskatchewan Court of Queen's Bench held that the plaintiff's life had been severely impacted by the sexual abuse inflicted on her by the male members of her adoptive family - The court assessed general damages at $80,000, damages for past and future loss of earning capacity at $30,000, and damages for the costs of counselling at $14,000 - The court considered that the plaintiff's adoptive father had caused the greater portion of the damage and concluded that the defendant was 35% liable for the plaintiff's total damages - The court awarded the plaintiff judgment against the defendant for $43,400.

Damages - Topic 810

Assessment - Overlapping damages from separate causes - The plaintiff sued the defendant, her adoptive brother, for damages arising from sexual assaults which the defendant committed on her starting when she was around nine years old - The plaintiff had also been sexually assaulted by her adoptive father and she had had a sexual relationship with another adoptive brother - The Saskatchewan Court of Queen's Bench stated that "It would be difficult to determine what effect the assaults perpetrated by the defendant had on the plaintiff separate from the effect of the assaults by her adoptive father and her other brother by adoption. In the circumstances, it is my intention to determine what effect all of the assaults have had on the plaintiff. In this way, I will be able to compare the plaintiff's injuries to the injuries suffered by the victims in other sexual assault cases to arrive at a global award of compensation. I will thereafter allocate the damages among the various perpetrators" - See paragraphs 37 to 38.

Damages 1302.1

Exemplary or punitive damages - Sexual assault (incl. sexual abuse) - The plaintiff sued the defendant, her adoptive brother, for damages arising from sexual assaults which the defendant committed on her starting when she was around nine years old - The Saskatchewan Court of Queen's Bench assessed the plaintiff's damages - The court dismissed a claim for punitive damages against the defendant where he was likely under the age of 18 at the time of the assaults - See paragraph 52.

Equity - Topic 3654.3

Fiduciary or confidential relationships - Breach of fiduciary relationship - By babysitter - The plaintiff sued the defendant, her older adoptive brother, for damages arising from sexual assaults which the defendant committed on her starting when she was around nine years old - The Saskatchewan Court of Queen's Bench assessed the plaintiff's damages - The court declined to award any damages for breach of fiduciary duty - While the defendant might have been in the position of a babysitter when some of the assaults occurred, there was insufficient evidence that he willingly accepted the responsibility to care for his sister when his parents were away - See paragraph 53.

Cases Noticed:

P.C. v. R.C. (1994), 114 D.L.R.(4th) 151 (Ont. Gen. Div.), refd to. [para. 38].

J.M.T. v. A.F.D. and J.A.D., [1995] 6 W.W.R. 92; 130 Sask.R. 270 (Q.B.), refd to. [para. 38].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 40].

M.A. and T.A. v. Canada (Attorney General) et al., [2003] 3 W.W.R. 599; 227 Sask.R. 260; 287 W.A.C. 260; 2003 SKCA 2, refd to. [para. 41].

H.L. v. Canada (Attorney General) et al., [2003] 5 W.W.R. 421; 227 Sask.R. 165; 287 W.A.C. 165; 2002 SKCA 131, refd to. [para. 41].

H.L. v. Canada (Attorney General) et al., [2001] 7 W.W.R. 722; 208 Sask.R. 103; 2001 SKQB 233, consd. [para. 43].

V.P. v. Canada (Attorney General) and Starr, [2000] 1 W.W.R. 541; 186 Sask.R. 161; 1999 SKQB 180, consd. [para. 43].

D.W. v. Canada (Attorney General) and Starr (1999), 187 Sask.R. 21; 1999 SKQB 187, consd. [para. 43].

S.P. v. F.K., [1997] 3 W.W.R. 161; 150 Sask.R. 173 (Q.B.), refd to. [para. 43].

Counsel:

Ronald P. Piché, for the plaintiff;

Gerald P. Wanhella, for the respondent.

This action was heard before Chicoine, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on April 25, 2005.