Children are bound to misbehave and act out. Even the best parents in the world can have a child that travels through this world like a hurricane. Can children be held liable for their own bad behaviour? Could you be held liable for your child’s misdeeds?

There is no fixed minimum age of negligence. However, children under 5 have little chance of being held negligent as they have little capacity to appreciate or foresee danger which is one of the components of finding liability. Negligence occurs when a person owes a duty of care to another, and their conduct falls below the standard of care of a reasonable person in the circumstances. The person either saw or should have seen that their conduct would harm another. Any harm to other persons or property resulting from such risk taking behaviour can lead to a finding of liability for damages.

Children cannot foresee danger like adults can. Does this mean they are off the hook for bad behaviour that results in harm to others? No. The Supreme Court of Canada held that a child is expected to act with the same reasonable care as a child of similar age, intelligence and experience (McEllistrum v. Etches,[1956] S.C.R. 787). A careful evaluation of the child and the circumstances surrounding the conduct is required and no two cases are exactly the same so the resulting liability of a child can be hard to predict.

The exception to this rule is when children engage in adult activities, such as snowmobiling or driving a car. If they are engaged in adult activities then the adult standard of care applies. The policy reason for this is that members of the public reasonably expect the conduct to be under the control of an adult and they adjust their actions accordingly. The court protects that reasonable expectation by applying the standard of the reasonably careful adult.

A great majority of cases involving children deal with contributory negligence of child plaintiffs; such as motor vehicle accident cases when the defendant claims that the child contributed to the damage by not looking before crossing the street(Joyal v. Barsby, (1965), 55 DLR (2d) 38 (Man. CA)). There is less litigation against child defendants mostly because they don’t have assets or the incident isn’t covered by the parents insurance. Of course there is the option of waiting until the infant grows up and starts obtaining assets and earnings, however; this would require a lot of patience to realize on the judgement and of course, re-registration of the judgement to ensure its validity.

Parents are not in general, liable for the negligence of their children. But parents are under a personal duty to take reasonable care to supervise and control their minor children and they may be liable for loss resulting from a child’s negligence, caused by the parent’s failure to meet such duty.

In addition to general principles of negligence, parents may have liability imposed on them through legislation.

The Parental Liability Act, SBC 2001, c 45 in British Columbia imposes civil liability on parents for the intentional destruction, damage, or taking of property by their children up to a maximum sum of $10,000. The parents can defend against liability by establishing that they exercised reasonable supervision over their child and that reasonable efforts were made in good faith to discourage the child from the kind of activity that gave rise to the property loss.  The Act, therefore, imposes a rebuttable presumption of parental fault in respect of deliberate property damage caused by their child.

As well, the British Columbia School Act, R.S.B.C. 1996, c. 412, s. 10, also imposes liability on students and students’ parents for intentional or negligent acts resulting in damage to school property with no monetary limit. In the recent case of Nanaimo-Ladysmith School District No. 68 v. Dean, 2015 BCSC 11, the parents were held liable for their 14 year old son’s bad behaviour after he attached a padlock to a sprinkler head inadvertently setting the school sprinkler system off causing almost $50,000 in damage to the school.

In sum, children under 5 years of age will likely not be held liable for negligence as they have little awareness of danger. Children over 5 may be held liable for negligence if their conduct was less than that expected of a child of similar age, intelligence and experience, except for when they are engaged in adult activities such as driving. Then the adult standard of care will apply to their conduct despite their age. Finally, a parent will likely not be held liable for their child’s negligence except for if they failed in their duty to properly supervise the child or provincial legislation holds the parents liable.

The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional. [jetpack-related-posts]

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