Understanding Sexual Assault and Battery in Civil Litigation: A Series
- Apr 29
- 6 min read
Part 5: Liability of Non-Offending Caregivers for the Sexual Abuse of a Child in their Care
By: Gillian Hnatiw & Co.
In recognition of Sexual Assault Awareness Month, this series summarizes the current civil law in Canada surrounding sexual assault and battery, with the aim of making the law more transparent and accessible for all. For more information or representation related to your legal claim, contact Gillian Hnatiw & Co. here.
Sexual abuse does not always happen in isolation. It often occurs in situations where a child (or another vulnerable person) is dependent on adults for safety, care, and protection. When a caregiver fails to act in the face of known or foreseeable harm, the law recognizes that this failure can cause serious and lasting injury. This article explains how Canadian civil law holds caregivers legally responsible when they fail to prevent or intervene in the sexual abuse of a child in their care, including through claims of negligence and breach of fiduciary duty.
Caregivers are in special relationships with minor children (or adults lacking capacity) that requires the caregiver to take reasonable care to protect them from harm and to put their needs before the caregiver’s own needs.
In civil litigation, there are two related legal causes for which a caregiver might be liable if they failed to prevent or intervene in the sexual abuse of a minor child in their care:
A caregiver may be liable for negligence if they failed to act as a “careful parent”, meaning they would be expected to act where the harm was reasonably foreseeable. [1]
Where a caregiver has failed to put the child’s interests ahead of their own and this has resulted in harm, the caregiver could be liable for breaching their fiduciary duty (also known as the duty of loyalty) to the child.[2]
Willful Blindness and Foreseeability
In the case of sexual abuse of a minor child or someone otherwise lacking capacity, fiduciary duty and negligence will generally be proved together. That is because if a harm is reasonably foreseeable and the caregiver fails to take action, the caregiver is likely willfully blind to or has actual knowledge of the abuse or risk of abuse. Ignoring obvious warning signs or choosing not to know what is happening can still result in liability.
Canadian courts have recognized that civil liability may attach to a parent or caregiver who overlooks the sexual abuse of a minor, particularly where the caregiver was willfully blind or was deliberate in their inaction in the face of warning signs.[3] Courts recognize that silence and inaction can allow harm to continue and can themselves cause injury.
In K.L.B. v. British Columbia, 2003 SCC 51, McLachlin C.J. writing for the Supreme Court Majority explained the fiduciary duty a caregiver owes to a child in the following example:
“…a parent who, wanting to avoid trouble for herself and her household, turns a blind eye to the abuse of a child by her spouse. The parent need not […] be consciously motivated by a desire for profit or personal advantage; nor does it have to be her own interests, rather than those of a third party, that she puts ahead of the child’s. It is rather a question of disloyalty — of putting someone’s interests ahead of the child’s in a manner that abuses the child’s trust...”[4]
The law does not require proof of selfish intent or personal gain. What matters to courts is that the caregiver failed to be loyal to the child by not acting in their best interests. In K.K. v. K.W.G., 2008 ONCA 489, the Court found that a mother’s inaction and failure to protect her daughter from her husband’s sexual abuse over a seven-year period amounted to a breach of her fiduciary duty to her child.[5]
A caregiver may be liable even when they lack actual knowledge but are wilfully blind to the abuse. In M.M. v. R.F., 1997 CanLII 14477 (BCCA), the British Columbia Court of Appeal found a foster mother liable for both negligence and breach of fiduciary duty, describing her as “extraordinarily obtuse” in the face of multiple warning signs about sexual abuse by her adult son against her minor foster daughter plaintiff.[6] Here, the Court emphasized that neither personal discomfort with sexual matters nor exceptional naiveté excuses a failure to protect.[7] Caregivers are expected to protect, even when doing so is difficult or uncomfortable.
This principle has been affirmed in subsequent cases, including A.(R.) v. M.(J.), 2013 ONSC 5439, which held that liability may arise where a parent’s failure to act reflects willful blindness to the abuse occurring in one’s home.[8] Whether liability arises is a question of fact that is assessed in light of the relationship, the circumstances of the abuse, and the opportunities to act.[9] Courts will examine what the caregiver knew or should have known, the warning signs present, and what steps were realistically available to prevent the harm to the child.
Joint Liability for Conduct of Bystanders
Often, harm caused by abuse and concealment cannot always be separated.
Accordingly, courts have made joint awards against both the perpetrator and the bystander when their conduct is closely intertwined. In J. (L.A.) v. J. (H.), 1993 CanLII 8657 (ONSC), the jury imposed joint liability on the plaintiff’s mother and her uncle (who was acting in the place of her father) after finding that the mother witnessed the uncle sexually assaulting her daughter and failed to intervene. The mother’s liability was grounded in both negligence and a breach of fiduciary duty.[10]
Similarly, in Waters v. Bains, 2008 BCSC 823, the plaintiff was sexually abused from the ages of 8 to 18 by her uncle. The Court found that the aunt was jointly liable with the uncle because she was aware of the abuse and took active steps to conceal it, including arranging for the plaintiff to receive an IUD around the onset of puberty. [11] In finding that a joint award was appropriate in this case, Justice Morrison wrote:
[95] In my view, the plaintiff’s injuries are not divisible between the defendants. Her injuries and losses can be traced to acts and/or omissions by both defendants. There is no need, nor is it appropriate to apportion damages between the defendants. […] [12]
There may also be practical considerations with respect to the recovery of damages when a court makes a joint award, such as assets that are shared between defendants. For example, in Waters, the Court noted that the defendants jointly owned a high-value property.[13]
The duty of a caregiver to prevent harm to a person in their care is an active one. Inaction in the face of clear warning signs could result in liability to a caregiver even if they were not directly involved in, or directly aware of the abuse. A lack of knowledge or foresight that stems from willful blindness or a wish to avoid conflict is not sufficient to protect a caregiver from liability.
Civil law recognizes that protecting children is an active responsibility. Where caregivers ignore warning signs, turn a blind eye, or choose inaction to avoid conflict or discomfort, their conduct may give rise to legal liability, even if they did not commit the abuse themselves. By addressing negligence, willful blindness, and joint liability, civil law acknowledges the real harm caused by silence and inaction. For survivors, understanding these principles can open an additional path to accountability where the failure to protect was itself a breach of trust.
Gillian Hnatiw & Co. is a leading firm in civil sexual assault and sexual battery litigation. For experienced representation and clear legal guidance, contact Gillian Hnatiw & Co. here.
The team at Gillian Hnatiw & Co. thanks student Bertina Lou for her contribution and assistance with this article.
If you or someone you know has been affected by sexual violence and requires immediate support, confidential help resources are available in your community.
This article is provided for general informational and educational purposes only and does not constitute legal advice. Reading this content does not create a solicitor‑client relationship. Laws and legal procedures vary depending on individual circumstances and jurisdiction. If you require legal advice regarding your specific situation, please consult a qualified legal professional.
[2] M.(K.) v. M.(H.), [1992] 3 SCR 6; Paddy-Cannon v. Canada (Attorney General), 2025 ONCA 394 at para 78.
[3] K.K. v. K.W.G., 2008 ONCA 489, at para 48.
[5] K.K. v. K.W.G., 2008 ONCA 489, at para 48.
[10] J.(L.A.) v. J.(H.), 1993 CanLII 8657 (ONSC).
[11] Waters v. Bains, 2008 BCSC 823, at para 94.
[13] Waters v. Bains, 2008 BCSC 823, at para 102.
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