In 2000, the Parental Responsibility Act came into effect in Ontario. This legislation allows victims of theft or property damage to sue the parents of a minor (under age 18) in Small Claims Court for their damages. The monetary jurisdiction in Small Claims Court is now $25,000. The Act contains a “reverse onus” provision which means that the parents will be found automatically responsible for the child, unless they can prove they were exercising “reasonable supervision” over the child at the time the act was committed, and they had made “reasonable efforts” to prevent or discourage the child from engaging in such an activity.
The determination of whether the parents acted reasonably is a question of fact. The facts the court will consider in determining whether the parents exercised reasonable supervision and made reasonable efforts includes the child’s age, the child’s prior conduct, the potential danger of the activity, the physical or mental capacity of the child, whether the child was under direct supervision of the parent at the time the act occurred and whether the parent should have made arrangements to supervise the child or whether those arrangements were reasonable. The court will look at whether the act was out of character for the child and whether the act was foreseeable.
Parents are not expected to be perfect, but reasonable. The reasonable person may make mistakes and errors of judgment for which there is no liability. Nevertheless, the reasonable person is more alert to risk, and cautious by nature, than most of us.
What happens in the case where a child or children commit an act while in the care of a babysitter? It is no surprise or news to any parent that kids often think they can get away with more while under the care of a babysitter. Simply hiring someone to watch over your child while you are gone is not sufficient. The parent or parents would have to show that the care arrangements made for the child were reasonable. In addition to the factors listed above, this would require examining the age of the babysitter/supervisor and what happened on previous occasions when that same person cared for your child.
While we cannot control our children (despite our best efforts) or watch them every minute of every day, we must do our best to act reasonably when supervising them or when arranging for their supervision. We must do our best to anticipate problems that may arise and take positive steps to prevent them to avoid behind held responsible under the Act.
About the Authors
A born-and-raised Barrie resident, Karen knows and loves her community. She is proud to be a partner in one of Canada’s most successful personal injury law firms—right in her own backyard. Karen joined Oatley Vigmond in 2013 as an associate lawyer. She holds a BA from Queen’s University and her Juris Doctor from Bond University in Australia. Prior to being called to the Bar in January 2013, Karen articled at a well-known personal injury law firm in Toronto.