The Bill permits an action for damages to be brought in the Small Claims Court against a parent of a child who takes, damages or destroys property. The parent is liable in the action unless he or she satisfies the court that he or she was exercising reasonable supervision at the relevant time and made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage, or that the child’s activity was not intentional (section 2 of the Bill).
Section 3 of the Bill deals with access to and use of evidence from Young Offenders Act (Canada) court records. A person bringing an action under the Bill will have access to the relevant records under existing provisions of the Young Offenders Act, as well as an order made by the Lieutenant Governor in Council under paragraph 44.1 (1) (h) of that Act. If evidence obtained from Young Offenders Act court records is used in an action under the Bill, the court file is kept confidential.
Section 4 of the Bill clarifies that no interference with the confidentiality provisions of the Young Offenders Act (Canada) is intended.
Section 5 of the Bill permits the court, in making its award of damages, to take into account any amount ordered by a court to be paid or voluntarily paid as restitution.
Section 6 of the Bill provides for joint and several liability where more than one parent is liable in an action under the Bill.
Section 7 of the Bill permits the court to order the payment of damages in full by a fixed date or in instalments by fixed dates. As well, the court may order the parent to provide security.
Section 8 of the Bill provides that an insurer who has compensated a victim is subrogated to the victim’s rights under the Bill.
Section 9 of the Bill provides that the Bill shall not be interpreted to limit remedies otherwise available under the law.
The Bill also repeals section 68 of the Family Law Act, a provision dealing with parents’ onus of proof in actions brought otherwise than under the Bill. A parallel to that provision is included in the Bill (sections 10 and 12).
Section 11 provides for the prescribing of forms.
An Act to make parents
responsible for wrongful acts
by their children
Assented to June 8, 2000
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
1. In this Act, except as otherwise provided in section 10,
“child” means a person who is under the age of 18 years; (“enfant”)
(a) a biological parent of a child, unless section 158 of the Child and Family Services Act applies to the child,
(b) an adoptive parent of a child,
(c) an individual declared to be a parent of a child under the Children’s Law Reform Act,
(d) an individual who has lawful custody of a child, and
(e) an individual who has a lawful right of access to a child. (“père ou mère”)
2. (1) Where a child takes, damages or destroys property, an owner or a person entitled to possession of the property may bring an action in the Small Claims Court against a parent of the child to recover damages, not in excess of the monetary jurisdiction of the Small Claims Court,
(a) for loss of or damage to the property suffered as a result of the activity of the child; and
(b) for economic loss suffered as a consequence of that loss of or damage to property.
(2) The parent is liable for the damages unless the parent satisfies the court that,
(a) he or she was exercising reasonable supervision over 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 kind of activity that resulted in the loss or damage; or
(b) the activity that caused the loss or damage was not intentional.
(3) For the purposes of clause (2) (a), in determining whether a parent exercised reasonable supervision over a child or made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage, the court may consider,
(a) the age of the child;
(b) the prior conduct of the child;
(c) the potential danger of the activity;
(d) the physical or mental capacity of the child;
(e) any psychological or other medical disorders of the child;
(f) whether the child was under the direct supervision of the parent at the time when the child was engaged in the activity;
(g) if the child was not under the direct supervision of the parent when the child engaged in the activity, whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the child;
(h) whether the parent has sought to improve his or her parenting skills by attending parenting courses or otherwise;
(i) whether the parent has sought professional assistance for the child designed to discourage activity of the kind that resulted in the loss or damage; and
(j) any other matter that the court considers relevant.
3. (1) In this section,
“offence” has the same meaning as in the Young Offenders Act (Canada).
Proof of conviction
(2) In an action brought under this Act, proof that a child has been found guilty under the Young Offenders Act (Canada) of an offence is proof, in the absence of evidence to the contrary, that the offence was committed by the child, if,
(a) no appeal of the finding of guilt was taken and the time for an appeal has expired; or
(b) an appeal of the finding of guilt was taken but was dismissed or abandoned and no further appeal is available.
(3) For the purposes of subsection (2), a copy of an order of disposition under the Young Offenders Act (Canada) showing that the original order appeared to be signed by the officer having custody of the records of the court that made the order is, on proof of the identity of the child named as guilty of the offence in the order, sufficient evidence that the child was found guilty of the offence, without proof of the signature or of the official character of the person appearing to have signed the order.
Notice re evidence obtained under
Young Offenders Act (Canada)
(4) A person who presents evidence obtained under the Young Offenders Act (Canada) in an action brought under this Act shall first give the court notice, in the prescribed form.
(5) When evidence obtained under the Young Offenders Act (Canada) is presented in an action brought under this Act,
(a) the court file shall not be disclosed to any person except,
(i) the court and authorized court employees,
(ii) the claimant and the claimant’s lawyer or agent, and
(iii) the child, his or her parents and their lawyers or agents; and
(b) once the action has been finally disposed of, the court file shall be sealed up and shall not be disclosed to any person, except one mentioned in clause (a).
Young Offenders Act (Canada)
4. For greater certainty, when information from records under the Young Offenders Act (Canada) is made available for the purposes of an action brought under this Act or presented as evidence in such an action, nothing in this Act affects any provision of the Young Offenders Act limiting disclosure or publication of the information.
5. In determining the amount of damages in an action brought under this Act, the court may take into account any amount ordered by a court as restitution or paid voluntarily as restitution.
Joint and several liability
6. Where more than one parent is liable in an action brought under this Act for a child’s activity, their liability is joint and several.
Method of payment
7. (1) In awarding damages in an action brought under this Act, the court may order payment of the damages,
(a) to be made in full on or before a fixed date; or
(b) to be made in instalments on or before fixed dates, if the court considers that a lump sum payment is beyond the financial resources of the parent or will otherwise impose an unreasonable financial burden on the parent.
(2) The court may order security to be provided by the parent in any form that the court considers appropriate.
8. An insurer who has paid an amount as compensation to a person in connection with the loss or damage is subrogated to the rights of the person under this Act to the extent of the amount.
9. Nothing in this Act shall be interpreted to limit remedies otherwise available under existing law or to preclude the development of remedies under the law.
Parents’ onus of proof in actions
not under this Act
10. (1) This section applies to any action brought otherwise than under this Act.
(2) In an action against a parent for damage to property or for personal injury or death caused by the fault or neglect of a child who is a minor, the onus of establishing that the parent exercised reasonable supervision and control over the child rests with the parent.
(3) In subsection (2),
“child” and “parent” have the same meaning as in the Family Law Act.
11. The Lieutenant Governor in Council may, by regulation,
(a) prescribe forms to be used for requests under paragraph 44.1 (1) (h) of the Young Offenders Act (Canada);
(b) prescribe a form for the purpose of subsection 3 (4) (notice re evidence).