Can parents be held legally responsible for their children’s negligence? Yes. Under B.C.’s Parental Liability Act (PLA), “if a child intentionally takes, damages or destroys property of another person, a parent of the child is liable for the loss of or damage to the property experienced as a result by an owner and by a person legally entitled to possession of the property.”[1] The maximum liability for parents is $10,000. However, a parent can defend themselves from the lawsuit by demonstrating that they were exercising reasonable supervision over the child, and that they made reasonable efforts to prevent or discourage the child from damaging someone’s property.[2] The PLA effectively codifies the existing legal tradition (i.e. the common law). As such, this post will briefly review the common law to clarify the reason for parental liability, and it will explain this reason’s associated standard of supervision as a limiting factor to liability.

At common law, a parent cannot be held liable for damages resulting from their children’s negligent acts (i.e. their tortious conduct). In the 1860 English case of Moon v Towers the court held that “a father is not liable in damages for the torts of his child.” This principle has been applied in numerous B.C. cases.[3] In Hatfield v. Pearson, for example, three teenaged boys stole a car which was damaged in the ensuing police chase. The owner’s claim for damages against the children’s parents failed on the principle set out in Moon v Towers. Similar dismissals have arisen in response to children’s acts of vandalism,[4] arson,[5] and murder.[6] However, parents with unruly children should not take too much comfort in this knowledge, for the rule is not absolute.

Parents have a personal duty to supervise their children.[7] When careless in this duty, a parent can be held liable for any resulting damages. There is a subtle but important difference here. The parent is not vicariously liable for their child’s negligence; rather, they are personally liable for their prior negligence in not properly supervising their child to the acceptable standard of preventing foreseeable harm to others. In the 1994 B.C. Supreme Court Case of Poirier (Guardian of) v. Cholette, for instance, parents were held liable for failing to properly supervise their two adolescent boys while they wrestled on a trampoline with friends, resulting in the breakage of a young girl’s arm. As the court wrote: “had the defendants provided proper supervision, the prohibited circumstances of three or four children indulging in horseplay and wrestling on the trampoline would not have occurred.   The infant plaintiff would, on a balance of probabilities, not have fallen.”[8] Of course, this foreseeability of harm changes with the child’s age. As the child nears the age of majority (18 years old) and expectations regarding their comportment with social standards increase, the parents’ duty to supervise will correspondingly decrease.[9]

If the child demonstrates a propensity for the negligent behavior that eventually resulted in damage, the parents’ duty to supervise is increased. In the B.C. case of M.I.M. v. T.H., for example, a foster parent was found to have fulfilled such an elevated standard arising from his knowledge regarding his two foster children’s proclivity for stealing. But, their eventual arson attack was unforeseen, and therefore, the foster parent could not be held liable.[10] In other words, the supervision standard is limited to what a reasonably prudent parent would do in similar circumstances.

An “error in judgment” will not amount to negligent supervision. That is, the reasonable parent standard is broad, insofar as any circumstance will afford various courses of reasonable action. Even when one of those actions has an unfortunate outcome, its mere selection will not amount to negligence. In Arnold v. Teno, for example, the Supreme Court of Canada found that a mother allowing her children to cross a residential street to purchase items from an ice cream truck was within the community standard, even though that choice later resulted in one of the children being struck by a vehicle. While an instance of poor judgment, the decision did not amount to a failure to supervise.

Taken together, parents cannot be vicariously liable for their children’s negligent acts. Yet, they may be liable for failing to supervise their children to the appropriate community or circumstantial standards. The PLA’s codification of these common law principles bridges the distinction between vicarious and parental liability. It simply makes parents liable for their children’s negligence. However, the distinction implicitly persists with the statute’s supervision defence. Also, it should be noted that the PLA maintains a $10,000 liability limit that does not exist at common law. That said, other statutes also override the Moon v. Towers principle and impose parental liability in certain circumstances. Section 10 of B.C.’s School Act, for example, imposes liability on parents for any damage their children cause to school property.[11] There, the statue sets no upper limit on parental liability.

[1] Parental Liability Act, Part 2, s. 3

[2] Ibid., ss. 9 & 10

[3] Moon v. Towers (1860), 8 C.B.N.S. 611, 141 E.R. 1306; also see, The Law Reform Commission of Ireland, Report On The Liability In Tort Of Minors And The Liability Of Parents For Damage Caused By Minors Ireland, <https://www.lawreform.ie/_fileupload/Reports/rDamagecausedbyMinors.htm>

[4] M.I.M. v. T.H., [1991] 5 WWR 699, 82 DLR (4th) 609, 57 BCLR (2d) 1.

[5] Smith v. British Columbia, 1997 CanLII 3267 (BC SC),

[6] D.L. et al. v. C.P. et al., 2019 MBQB 42

[7] Arnold v. Teno, [1978] 2 S.C.R. 287; Hatfield v. Pearson (1956), 6 D.L.R. (2d) 593 (B.C.C.A.)

[8] Poirier (Guardian of) v. Cholette, 1994 CanLII 1182 (BC SC)

[9] Lelarge v. Blackney, (1978) 92 D.L.R. (3d), 440 (N.B.C.A.) at pp. 446-7.

[10] M.I.M. v. T.H., 1991 CanLII 5722 (BC CA), at para 138.

[11] School Act, RSBC 1996, c 412, s 10; also see School District No. 43 (Coquitlam) v. T.W.D., 1999 BCCA 95

In the recent case of Trudeau v Turpin, 2019 BCSC 150, the Supreme Court of British Columbia considered the concept of undue influence and the application of section 52 of the British Columbia Wills, Estates and Succession Act. “Undue influence” refers to a situation where a will-maker has been improperly influenced such that the Will does not reflect the will-maker’s genuine intention. Section 52 of WESA considers a situation where another person commences an action claiming that a Will results from the undue influence of another person. If the claim suggests that a person:

 

  • was in a position with respect to the deceased person where there was the potential for dependence or domination; and
  • that the person used that position to improperly influence the will-maker.

 

the party alleging undue influence must only prove that the person allegedly exerting undue influence was in a position where the potential for dependence or domination of the will-maker was present. Once this is established, the party seeking to defend the Will must prove that the Will was not created as a result of the undue influence of that person.

 

 

The Facts of the Case

 

In this case, the will-maker was particularly close with one of her four daughters and in her Will left:

 

  • 60% of her estate to that daughter;
  • 30% to another daughter; and
  • 5% each to the last two daughters.

 

The other daughters argued that by virtue of the strength of the relationship between their mother and the favoured daughter and the fact that the mother was dependent on her, the Will was a product of undue influence. The Court considered section 52 of WESA and ultimately found that the other daughters failed to establish that the favoured daughter was in a position where the potential for dependence or domination was present. The Court further stated that, regardless of section 52 of WESA, the evidence did not suggest that the favoured daughter exerted any undue influence.

 

In particular, the Court noted that:

 

  • the favoured daughter never exhibited aggressive or suggestive behaviour;
  • the will-maker had a journal that had confirmed her wishes as early as 1996 (and continued to express a desire to change her Will to reflect these wishes);
  • there was evidence that the will-maker had a dominating personality with her children, including the favoured daughter;
  • the daughter’s demeanor suggested she was not capable of exerting undue influence;
  • when her mother made an earlier Will, the favoured daughter convinced her mother to distribute her estate equally between her children;
  • the will-maker met privately with her lawyer; and
  • the experienced lawyer had no concerns that there was any undue influence present when the will-maker made the Will.