Parents - do you know what your kids are up to? You could be on the hook, and you may not be insured

6 minute read
01 October 2015

Parents may be held liable in connection with acts of their children, such as bullying, if the parents have failed to take reasonable steps to supervise the child. A recent case from the Ontario Court of Appeal highlights that there may not be any coverage under a parent’s homeowners policy in such circumstances. 

Under Ontario law, a parent bears no vicarious liability for acts of a child based solely on the parent and child relationship.  However, a parent can be held liable through ordinary principles of negligence, if the parent’s failure to supervise or instruct the child caused or contributed to damage caused by the child. In the seminal case of Floyd v Bowers, a father was found liable for damages caused by his 13 year-old son when the boy fired an air rifle at another child, resulting in loss of eyesight in one eye. The Court held that the failure to control or prevent easy access to both the gun and ammunition and the failure to instruct in the proper use of a gun constituted negligence on the part of the 13 year old’s parents.

Parental negligence may be established for other acts of children including bullying. In claims against parents for the bullying acts of their children, plaintiffs have pleaded that the parents knew or ought to have known that the child was bullying and failed to investigate, failed to take steps to remedy the bullying, failed to take reasonable care to prevent the bullying, failed to take disciplinary action against their child, and failed to discharge their duty to prevent the impugned conduct.

Bullying was the allegation made in litigation underlying a recent coverage decision of the Ontario Court of Appeal. In Unifund Assurance Company v. DE, 2015 ONCA 423 (and companion case CS v TD Home and Auto Insurance Company, 2015 ONCA 424), the  Court of Appeal  held that an insurer did not have a duty to defend parents under their homeowners’ insurance policy in an action stemming from alleged bullying by their grade 8 child. In a unanimous appeal decision, the Court of Appeal overturned the lower level ruling, first by finding that the claims against the parents were not derivative of the intentional tort claim against their daughter, and second by focusing on the particular language of the insurance policy at issue. According to the policy, the insureds would be covered for “unintentional bodily injury or property damage arising out of” personal actions. However, the policy also contained an exclusion that excluded coverage for claims arising from failing to take steps to prevent, amongst other things, abuse or harassment:

We do not insure claims arising from:

7. …  (b) failure of any person insured by this policy to take steps to prevent sexual, physical, psychological or emotional abuse, molestation or harassment or corporal punishment.

Based on a plain reading of this language, the Court of Appeal determined that the exclusion clause captured the negligence being alleged against the insured parents. As a result, Unifund did not have a duty to defend or indemnify the parents in the underlying litigation. 

Since not all homeowner’s policies may contain the same exclusion as that considered in Unifund, this may not be the outcome in all situations. However, insureds with policies containing the same exclusion cannot expect coverage for harm arising from bullying carried out by their children.  In addition, even in the absence of such an exclusionary clause, it must be borne in mind that most homeowners’ insurance policies will cover general and special damages, but not punitive or exemplary damages.

In a world in which children and teenagers are living much of their social lives on-line, of particular concern to parents ought to be the spectre of liability in connection with cyber bullying. In Nova Scotia, legislation has been passed (the Cyber-Safety Act, SNS 2013, c 2) which creates a tort of cyber bullying, and holds parents of a cyberbully minor jointly and severally liable for damages awarded to a victim, including general, special, aggravated, and punitive damages. Under this new law, a parent may avoid liability only if he or she can satisfy the court that he or she exercised reasonable supervision over the child at the time of the cyber bullying. It is not unreasonable to expect that parental liability in connection with cyber bullying may also arise under the ordinary principles of negligence set out in the Floyd case, discussed above.

There have not yet  been any cases in Ontario directly addressing parental liability in the context of cyber bullying. However, given the ubiquitous nature of technology and social media, in the writer’s view, damages from cyber bullying are as reasonably foreseeable as for other forms of bullying, and aren’t likely to be treated any differently at law than other forms of bullying. So parents — take heed — if a Court were to find that you have failed to take reasonable steps to prevent  your child from becoming involved in cyber bulling, you could be found negligent as a result, and find yourself exposed to pay damages. Should your homeowner’s policy contain a similar exclusion to that considered in the Unifund case, you may find yourself without any insurance coverage.

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