K.K. v. K.W.G. [Indexed as: K. (K.) v. G. (K.W.)]

90 O.R. (3d) 481

Court of Appeal for Ontario,

Weiler, Cronk and Blair JJ.A.

June 20, 2008

Civil procedure -- Costs -- Offer to settle -- Plaintiff serving offer to settle under Rule 49 which was not accepted and which was more favourable to defendant than result at trial -- Trial judge not erring in exercise of his discretion in declining to award plaintiff costs on substantial indemnity scale from date of offer -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 49.

Damages -- Lost income -- Plaintiff successfully suing her mother for damages for breach of fiduciary duty for failing to protect her against sexual abuse by her father which ended in 1958 -- Trial judge erring in awarding plaintiff damages of $100,000 for lost income -- Award of $20,000 reasonable estimate of plaintiff's damages for her lost opportunity to maximize her earning capacity.

Equity -- Laches -- Plaintiff bringing action against her mother in 2000 for damages for breach of fiduciary duty for failing to protect her against sexual abuse by her father which ended in 1958 -- Equitable doctrine of laches not applying -- Plaintiff not acquiescing in defendant's wrongdoing -- Justice as between parties not compelling application of doctrine of laches.

Fiduciaries -- Parents -- Plaintiff bringing action against her mother for damages for breach of fiduciary duty for failing to protect her against sexual abuse by her father -- Trial judge not erring in finding that defendant was aware of abuse and that she failed to establish on balance of probabilities that she was powerless to intervene -- Judgment for plaintiff affirmed on appeal.

The plaintiff claimed that she was sexually abused by her father over a seven-year period ending in 1958, and that her mother knew or ought to have known about the abuse and did nothing to protect her. In 2000, the plaintiff consulted counsel and commenced an action against her mother for damages for breach of fiduciary duty. At that time, there was no limitation period in Ontario for actions for breach of fiduciary duty. The defendant argued that the action was barred by the equitable doctrine of laches. By the time of the trial, the defendant was legally incapacitated and unable to testify due to dementia. The plaintiff was granted leave to read in the defendant's discovery evidence as if it were her testimony at trial. The trial judge held that the doctrine of laches did not bar the action, finding that acquiescence by the plaintiff had not been established and that, as a matter of justice between the parties, the equitable relief claimed by the plaintiff should not be denied. He found that the defendant knew of her husband's sexual abuse of the plaintiff, that she had not been prepared to intervene and that the evidence was insufficient to support a finding that she was unable to intervene. The trial judge awarded the plaintiff damages of $230,000, comprised of $100,000 for general and aggravated damages, $100,000 for lost income and $30,000 for future care. He also awarded the plaintiff her costs of the action on a partial indemnity basis. The defendant appealed, and the plaintiff cross-appealed the costs award.

Held, the appeal should be allowed in part; the cross-appeal should be dismissed. [page482]

Per Cronk J.A. (Weiler J.A. concurring): In light of the fiduciary relationship between the parties, the courts should be reluctant to allow a defendant in an incest case -- including the "bystander" parent -- to escape liability for breach of fiduciary duty by invocation of the doctrine of laches. The trial judge's finding that the plaintiff did not acquiesce in the defendant's wrongdoing was supported by the evidence. Just as particularly compelling evidence is required to demonstrate that an incest victim acquiesced in the sexual assaults, cogent and compelling evidence is required to establish that an incest victim acquiesced in the failure of a "bystander" parent to intervene to protect the victim. The plaintiff's knowledge of her rights is the critical element in the acquiescence branch of the doctrine of laches. It was open to the trial judge to conclude that it could not reasonably be inferred that the plaintiff knew that her rights had been violated by her mother as well as by her fat her, that she also knew that her mother's violation gave rise to a claim, and that she nonetheless refrained from seeking redress against her mother. Moreover, justice between the parties did not compel the application of the doctrine of laches in this case.

In concluding that the defendant knew of the abuse, the trial judge did not disregard or misapprehend relevant evidence. As the plaintiff established a breach of fiduciary duty by the defendant, the onus of proof shifted to the defendant to establish any asserted defence to that breach, including a defence based on a posited inability to intervene to prevent the abuse. The trial judge correctly applied the civil standard of proof on a balance of probabilities in determining whether the defendant was powerless to intervene to protect the plaintiff. He weighed the evidence and, while acknowledging the hypothetical possibility that the defendant might have felt such powerlessness, concluded that that theory was unsustainable. He made no reviewable error in this assessment of the evidence.

While expressly finding that the sexual abuse had an adverse impact on the plaintiff's income earning capacity, the trial judge found that the lost income claim "defied calculation". There was no evidentiary foundation for quantification of that claim. That did not mean that the claim had to be rejected entirely. However, the factors on which the trial judge based his award significantly overlapped with those pertinent to his assessment of general damages, and he also failed to adequately consider the many other complex contingencies that had to be taken into account in assessing damages for the lost opportunity suffered by the plaintiff. A reasonable estimate of the plaintiff's damages for her lost opportunity to maximize her earning potential was $20,000.

The plaintiff made an offer to settle under Rule 49 of the Rules of Civil Procedure that was not accepted and that was less favourable than the result at trial. Nevertheless, the trial judge declined to award costs on a substantial indemnity scale from the date of the offer. A trial judge has a broad discretion regarding the awarding of costs in civil proceedings, and the costs consequences of a rejected offer to settle as enunciated in rule 49.10(1) are not automatic. The trial judge took into account the issues at trial and the fact that the defendant was legally incapacitated due to dementia by the time of the trial. His discretionary decision was not plainly wrong or tainted by an error in principle.

Per Blair J.A. (dissenting): The trial judge erred by concluding that because the psychiatrist who testified for the defence could only say that the defendant "may" have lacked the personal resources to intervene on behalf of the plaintiff, the defendant had not met the burden of establishing that she was incapable of acting in furtherance of her fiduciary obligations. The defendant had no such burden. By conflating an "evidential burden" to show there was sufficient evidence of a fact to put it in play with an "ultimate burden" to establish a fact, the trial judge lost sight of the plaintiff's overall burden, which was to show, on a balance of probabilities, [page483] that the defendant had breached her fiduciary duty by failing to take reasonable steps to prevent the abuse. The trial judge erred by placing the onus on the defendant to demonstrate that she was incapable of acting.

The trial judge erred in failing to hold that the equitable relief claimed by the plaintiff should be denied as a matter of justice between the parties. By the time of the trial, the delay had resulted in a situation where it was unjust to find and impose liability on the defendant, who was 82 years old, legally incapacitated, unable to instruct counsel and incapable of participating or testifying at trial. The case turned fundamentally on issues of credibility, and the defendant was incapable of defending herself and telling her story at trial. It was the plaintiff's delay in bringing the action that permitted that unjust situation to arise.

APPEAL by the defendant from a judgment for the plaintiff in an action for damages for breach of fiduciary duty; CROSS- APPEAL by the plaintiff from an award of costs.

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(3d) 66, [2004] CLLC Â210-014, 38 C.P.C. (5th) 199, 44 R.F.L. (5th) 245, 125 A.C.W.S. (3d) 432; Keljanovic Estate v. Sanseverino, 2000 5711 (ON CA), [2000] O.J. No. 1364, 186 D.L.R. (4th) 481, 132 O.A.C. 19, 34 E.T.R. (2d) 32, 96 A.C.W.S. (3d) 685 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 300]; L.T. v. R.W.T., 1997 2080 (BC SC), [1997] B.C.J. No. 1232, 36 B.C.L.R. (3d) 165, 36 C.C.L.T. (2d) 20, 73 A.C.W.S. (3d) 250 (S.C.); Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221 (J.C.P.C.); M.B. v. British Columbia, [2003] 2 S.C.R. 477, [2003] S.C.J. No. 53, 2003 SCC 53, 230 D.L.R. (4th) 567, 309 N.R. 375, [2003] 11 W.W.R. 262, J.E. 2003-1875, 187 B.C.A.C. 161, 18 B.C.L.R. (4th) 60, [2003] R.R.A. 1071, 19 C.C.L.T. (3d) 1, 44 R.F.L. (5th) 320, 125 A.C.W.S. (3d) 433; Martin v. Goldfarb (1998), 1998 4150 (ON CA), 41 O.R. (3d) 161, [1998] O.J. No. 3403, 163 D.L.R. (4th) 639, 112 O.A.C. 138, 44 B.L.R. (2d) 158, 42 C.C.L.T. (2d) 271, 82 A.C.W.S. (3d) 175 (C.A.) [Leave to appeal to S.C.C. refused [1998] S.C.C.A. No. 516]; Murphy v. Alexander, 2004 15493 (ON CA), [2004] O.J. No. 720, 236 D.L.R. (4th) 302, 183 O.A.C. 325, 21 C.C.L.T. (3d) 226, 129 A.C.W.S. (3d) 94 (C.A.); Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226, [1992] S.C.J. No. 60, 92 D.L.R. (4th) 449, 138 N.R. 81, [1992] 4 W.W.R. 577 , J.E. 92-939, 9 B.C.A.C. 1, 68 B.C.L.R. (2d) 29, 12 C.C.L.T. (2d) 1, 34 A.C.W.S. (3d) 705, supp. reasons 1992 66 (SCC), [1992] 2 S.C.R. 318, [1992] S.C.J. No. 109, [1992] 6 W.W.R. 673, 74 B.C.L.R. (2d) 2; [page484] Orlando Corp. v. Bothwell-Accurate Co., [2004] O.J. No. 2802, 36 C.L.R. (3d) 145, 1 C.P.C. (6th) 144, 132 A.C.W.S. (3d) 228 (C.A.); P.B. v. R.V.E., [2007] B.C.J. No. 2305, 2007 BCSC 1568, 162 A.C.W.S. (3d) 64; R. v. Braich, [2002] 1 S.C.R. 903, [2002] S.C.J. No. 29, 2002 SCC 27, 210 D.L.R. (4th) 635, 285 N.R. 162, J.E. 2002-583, 164 B.C.A.C. 1, 162 C.C.C. (3d) 324, 50 C.R. (5th) 92, 52 W.C.B. (2d) 359; R. v. Schwartz, 1988 11 (SCC), [1988] 2 S.C.R. 443, [1988] S.C.J. No. 84, 55 D.L.R. (4th) 1, 88 N.R. 90, [1989] 1 W.W.R. 289, J.E. 89-43, 56 Man. R. (2d) 92, 45 C.C.C. (3d) 97, 66 C.R. (3d) 251, 39 C.R.R. 260; R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 2002 SCC 26, 210 D.L.R. (4th) 608, 284 N.R. 342, J.E. 2002-582, 211 Nfld. & P.E.I.R. 50, 162 C.C.C. (3d) 298, 5 , 0 C.R. (5th) 68, 52 W.C.B. (2d) 360; R.C. v. McDougall, [2007] B.C.J. No. 721, 2007 BCCA 212, [2007] 9 W.W.R. 256, 239 B.C.A.C. 22, 68 B.C.L.R. (4th) 203, 41 C.P.C. (6th) 213, 156 A.C.W.S. (3d) 1208 (C.A.) [Leave to appeal to S.C.C. granted [2007] S.C.C.A. No. 328]; Stein v. Kathy K (The), 1975 146 (SCC), [1976] 2 S.C.R. 802, [1975] S.C.J. No. 104, 62 D.L.R. (3d) 1, 6 N.R. 359; Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. No. 1765, 186 O.A.C. 201, 44 B.L.R. (3d) 165, 132 A.C.W.S. (3d) 1046 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 291] Statutes referred to Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 10(1), (3) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 49.10(1) [as am.] Authorities referred to Linda R. Rothstein, Robert A. Centa and Eric Adams, "Balancing Probabilities: The Overlooked Complexity of the Civil Standard of Proof" (Paper delivered at the Law of Evidence Conference, June 2003) (Toronto: The Law Society of Upper Canada, 2004) R.P. Meagher, W.M.C. Gummow and J.R.F. Lehane, Equity Doctrines & Remedies, 4th ed. (Sydney: Butterworths Lexisnexis, 2002) R.P. Meagher, W.M.C. Gummow and J.R.F. Lehane, Equity Doctrines & Remedies (Sydney: Butterworths, 1984) Sopinka, John, Sydney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada (Toronto and Vancouver: Butterworths, 1992) Grace, Elizabeth K.P., and Susan M. Vella, "Vesting Mothers with Power They Do Not Have: The Non-Offending Parent in Civil Sexual Assault Cases: J. (L.A.) v. J. (H.) and J. (J.)" (1994) 7:1 C.W.L. 184

Lorne M. Honickman and Laurie Murphy, for appellant. Maia L. Bent and Cynthia B. Kuehl, for respondent.

[1] CRONK J.A. (WEILER J.A. concurring): -- After a four-day civil trial, the appellant, K.W.G., was held liable to her daughter, the respondent, K.K., for damages for breach of fiduciary duty. The breach related to K.W.G.'s failure to protect her daughter from recurrent sexual abuse perpetrated by K.W.G.'s husband -- [page485] K.K.'s father -- when K.K. was an adolescent. The trial judge awarded K.K. damages of $230,000, comprised of $100,000 for general and aggravated damages, $100,000 for lost income and $30,000 for future care, plus prejudgment interest. He also awarded K.K. her costs of the action on a partial indemnity basis.

[2] K.W.G. appeals liability and, in the alternative, the trial judge's damages awards for lost income and future care. K.K. cross-appeals on the issue of the scale of the trial judge's costs award.

[3] For the reasons that follow, I would allow the appeal in part, by setting aside the trial judge's damages award of $100,000 for lost income and substituting an award of $20,000. I would dismiss the appeal in all other respects. I would grant leave to K.K. to appeal the trial judge's costs award and dismiss the cross-appeal.

I. Facts

[4] The facts of this case are unusual and tragic in several respects.

[5] In 1949, following their internment in a labour camp in the former Soviet Union, K.W.G. and her husband, P.G., immigrated to Ontario from Germany with their daughter, K.K., who was then eight years old. They settled in southwestern Ontario, obtaining work as farm labourers and sharegrowers on various tobacco farms. Their second daughter, I.H., was born in October 1949. The birth of two more daughters followed: R.G., born on May 5, 1951; and E.N., born on January 6, 1955. [^1]

[6] The early years in Ontario were difficult ones for the family. Work became the focus of their life. The children assisted their parents with the tobacco farming. A particularly heavy burden fell on K.K. -- the eldest child. She left school before completing her grade nine studies and began to work full time for her parents. Eventually, P.G. and K.W.G. succeeded in purchasing their own farm and tobacco quota. The acquisition of other farms followed in subsequent years.

[7] There was evidence at trial that P.G. was often emotionally abusive towards his children, regularly yelling and swearing at them. According to K.K., he was also physically abusive to her, on occasion hitting her in the head and kicking her.

[8] P.G.'s abuse did not end there. Commencing in about 1951, when K.K. was ten years old, P.G. repeatedly sexually abused K.K. His abusive acts toward K.K. included fondling, digitally [page486] penetrating her vagina, rubbing his penis between her legs, forcing her to rub his penis and ejaculating on her and her nightclothes. The abuse did not stop until 1958, when K.K. turned 17 and left home to marry S.K., another tobacco farmer.

[9] Following their marriage, K.K. and her husband worked their own tobacco farm for a brief time, but then began to work as labourers or sharegrowers for K.K.'s parents. With some interruptions for other employment opportunities, they continued to work for her parents for more than 20 years, living on a property that belonged to P.G. and K.W.G. They also began their own family and had two sons.

[10] P.G. and K.W.G. retired from active tobacco farming in the late 1970s. For P.G., retirement was short-lived. He died of a heart attack in 1982 at 61 years of age.

(1) Events following P.G.'s death

[11] K.K. did not disclose her father's sexual abuse to anyone prior to his death in 1982. She did not tell her mother or any of her siblings that P.G. had sexually abused her until the 1990s.

[12] In 1991, nine years after P.G.'s death, K.K.'s younger sister, I.H., disclosed to some members of the family that she had a recalled memory of being sexually abused as a child by P.G. On the trial judge's findings, it was only after K.K. learned from her sister, E.N., of I.H.'s revelation of abuse that K.K. told E.N., in confidence, that she, too, had been sexually abused by P.G. When I.H.'s disclosure of incest was met with incredulity by family members, E.N. felt compelled to breach her promise of confidentiality to K.K. and she revealed K.K.'s claim of sexual abuse to other family members, including K.W.G.

[13] According to K.K., after P.G.'s sexual abuse of her became known in the family, she experienced depression, anxiety, sleeplessness and panic attacks. She was unable to perform her job and experienced recurrent nightmares, flashbacks of the abuse and heart irregularities.

[14] There was also significant conflict in K.W.G.'s family, usually relating to money. By the late 1990s, considerable tension had developed between K.K. and K.W.G. regarding K.W.G.'s treatment of K.K.'s family, and various resentments had grown up among K.K. and her sisters. [page487]

(2) The litigation

[15] Sometime in the summer of 2000, K.K. consulted a lawyer and decided to sue K.W.G. In September 2000, she disclosed P.G.'s sexual abuse to a physician and sought his referral to a sexual abuse counsellor. She began counselling with a social worker in early October 2000. Shortly thereafter, on October 26, 2000, K.K. commenced an action against K.W.G. for damages for breach of fiduciary duty arising from K.W.G.'s failure to intervene to protect her from P.G.

[16] K.W.G. defended the action and denied that K.K. had been assaulted or abused by P.G. in any fashion. She also denied knowledge of any sexually or physically abusive acts by her husband in respect of any of her children prior to his death.

K.K.'s position

[17] K.K. maintained that her mother knew or ought to have known that P.G. was sexually abusing her. Relying on the fact that the abuse usually occurred at night in her bedroom in the family home, when her mother was likely alone in the bed that she shared with P.G., K.K. argued that her mother must have known or turned a blind eye to P.G.'s frequent absences from their bedroom. K.K. also asserted that K.W.G., who did the family's laundry over the years, must have noticed semen stains on K.K.'s nightgown or bedclothes at some point during the course of about seven years of abuse.

[18] K.K. also relied on two specific incidents in support of her claim that her mother was aware or should have been aware of P.G.'s sexual abuse. The first incident occurred one night when K.K. fled to her mother's bed after escaping from her father following a particularly aggressive sexual encounter. Although her mother did not ask her why she had come to her bed, or inquire about P.G.'s whereabouts, K.K. believed that her mother either had knowledge of or willingly turned a blind eye to what had occurred.

[19] The second incident took place one night when the family was staying at the home of K.K.'s maternal grandmother. According to K.K., her grandmother entered the room where K.K. had been forced to sleep between her parents, turned on the light and saw K.K.'s hand on her father's penis (referred to by the parties as the "grandmother incident"). The next day, K.K.'s grandmother allegedly confronted K.W.G. about the abuse. K.K. said that when this confrontation occurred, she left her grandmother's house, in shame, to walk the streets in the snow. [page488]

[20] The grandmother incident assumed considerable importance at trial. According to K.K., a meeting among K.W.G. and three of her daughters -- E.N., R.G. and K.K. -- took place sometime in 1993, during which K.K. confronted her mother with P.G.'s sexual abuse and raised the grandmother incident. In their testimony at trial, E.N. and R.G. confirmed this aspect of K.K.'s testimony. K.K. said that her mother recalled and acknowledged the grandmother incident, thus effectively admitting her husband's abuse of K.K. E.N. and R.G. denied this acknowledgment by their mother.

Defence position

[21] K.W.G. was examined for discovery in October 2001. On discovery, she vehemently denied that K.K. had been abused by P.G. in any manner. She also denied that the grandmother incident ever occurred. Importantly, contrary to the testimony of her daughters at trial, K.W.G. also said that she never discussed the grandmother incident with K.K. at any time.

[22] By the time of trial in 2005, K.W.G. was legally incapacitated and unable to testify due to dementia. As a result, her interests were represented by her daughter R.G. as litigation guardian. K.K. was granted leave at trial to read-in K.W.G.'s discovery evidence as if it were her testimony at trial. The trial judge also admitted a memoir written by K.W.G., in which K.W.G. described her life experiences.

[23] Both in her pleading and on discovery, K.W.G. denied that K.K. had been sexually abused by P.G. However, shortly before trial, the defence conceded P.G.'s sexual abuse of K.K. Nonetheless, the defence continued to assert that K.W.G. was unaware of the sexual abuse until it was disclosed to her decades later.

[24] The defence also maintained at trial that: (i) because K.K. delayed until 2000 to sue K.W.G., her action was barred under the equitable doctrine of laches as a result of her alleged acquiescence in K.W.G.'s conduct; (ii) K.K.'s allegations of abuse were motivated by malice and a desire to seek revenge for what she believed was K.W.G.'s unfair treatment of her family and for being written out of K.W.G.'s will; and (iii) even if K.W.G. had been aware of the abuse of K.K. when it was occurring, K.W.G.'s personal history and characteristics rendered her unable to intervene to protect K.K.

(3) Expert evidence

[25] Several expert witnesses testified at trial.

[26] Dr. Peter G. Jaffe, a clinical psychologist, testified on behalf of K.K. He was accepted at trial as an expert on child sexual abuse [page489] and the effects of such abuse, including the "household dynamics and economic effects" of such abuse.

[27] Based on psychological testing of K.K., Dr. Jaffe offered the opinion that K.K. suffers from significant tension, unhappiness, pessimism, depression, anxiety and stress to a degree that places her at risk of self-harm. He described the impact of K.K.'s sexual, physical, verbal and emotional abuse as "extensive" and stated that her resulting "lack of self- esteem and self-worth has impaired her functioning in all areas of her life", including her marriage, education, employment and social activities. In his opinion, it was "highly likely" that K.K.'s emotional difficulties are a result of the abuse. He stated that K.K. suffers from "post- traumatic stress disorder with long-term symptoms of intrusive thoughts, as well as severe anxiety and depression" and that her traumatic memories relate to P.G.'s abuse of her.

[28] In respect of K.W.G.'s conduct, Dr. Jaffe stated that K.K. was "physically and emotionally abandoned by her mother when she did not protect her". As a result, in his view, K.K. "experienced the loss of both parents at a very young age" and this "impacted on all relationships in her life and her own perception of herself as a parent". Dr. Jaffe concluded:

[The] fact that her mother did not protect her is responsible, not only for the extent of the abuse, but also for the many years that it continued. . . . . .

The lack of validation of the abuse that she initially disclosed ten years ago has simply aggravated her symptoms and escalated the level of dysfunction in her life.

[29] Dr. Phillip Klassen, a forensic psychiatrist, testified on behalf of K.W.G. on the psychiatric impact of sexual abuse on victims. In contrast to Dr. Jaffe, however, the trial judge ruled that Dr. Klassen could not offer opinion evidence on the economic consequences of sexual abuse.

[30] In his report dated September 8, 2005, Dr. Klassen outlined the results of his psychiatric assessment of K.K. and of psychological testing of her conducted by Dr. John Arrowood, a forensic psychologist, in conjunction with Dr. Klassen's own work. Dr. Klassen diagnosed K.K. as suffering from dysthymic and anxiety disorders, the latter consisting of a mixture of panic symptoms, "free floating anxiety and periodic post- traumatic symptoms". He offered the opinion that K.K. "might be expected to have experienced moderately severe negative consequences of the alleged sexual abuse" and that it was reasonable to suggest that the sexual abuse played a "significant" role in her psychological [page490] distress. Overall, Dr. Klassen said, "[T]here is an identifiable negative outcome of the sexually assaultive behaviour . . . which is moderately severe in its scope and intensity."

[31] Dr. Klassen also indicated in his report that he was not positioned to comment on whether K.W.G. could, or should, have known about P.G.'s sexually assaultive behaviour; nor did he feel able to comment on whether K.W.G. "would have been able to deal, psychologically, with the notion that her daughter was being sexually assaulted by her husband".

[32] Both parties also led expert evidence on damages. K.K.'s expert, Karen Dalton, a chartered accountant, testified as to the past and present value of K.K.'s lost income based on various quantification scenarios. As well, Yvonne Pollard, a life care planning expert, prepared a future therapeutic needs report on behalf of K.K., estimating K.K.'s future care costs. Errol Soriano, also a chartered accountant and a business valuator, was K.W.G.'s expert on damages.

II. Trial Judgment

[33] The trial judge accepted K.K.'s assertion that she had been sexually abused by her father for seven years, holding that the substance of her evidence regarding the abuse was truthful and accurate. He also found that K.K. was subjected to regular episodes of physical and emotional abuse by P.G.

[34] The trial judge found that K.W.G. knew of P.G.'s sexual abuse of K.K. He also found that she had not been prepared to intervene and that the evidence was insufficient to support a finding that she was unable to intervene to protect K.K. He held that K.W.G. breached her fiduciary duty to K.K. "when she failed to protect [K.K.] from the physical and sexual abuse that she knew was being perpetrated by P.G.". Finally, he held that the doctrine of laches did not apply to bar K.K.'s claim for equitable relief.

[35] In the result, the trial judge awarded K.K. $100,000 for general and aggravated damages, $100,000 in damages for lost income from 1959 to 2005 (the first year of trial) and $30,000 in damages for future care, plus prejudgment interest. He denied K.K.'s claim for punitive damages. He also awarded K.K. her costs of the action on a partial indemnity scale, fixed in the total amount of $147,000.

III. Issues

[36] I would frame the several issues on the appeal as follows:

(1) Did the trial judge err by holding that the doctrine of laches did not apply in this case? [page491]

(2) Did the trial judge err by finding that K.W.G. knew of P.G.'s sexual abuse of K.K.?

(3) Did the trial judge err in his approach to the standard of proof concerning K.W.G.'s claim that she was unable to intervene to protect K.K. from P.G.?

(4) Did the trial judge err by awarding K.K. damages for lost income and future care costs?

[37] There is one issue on the cross-appeal:

(5) Did the trial judge err by awarding K.K. her costs of the action on a partial, rather than a substantial, indemnity scale?

IV. Analysis

(1) The laches issue

[38] On K.K.'s evidence, the last incident of sexual abuse occurred in 1958, 42 years before she commenced proceedings against her mother in 2000. When K.K.'s action was initiated, the time for bringing a claim for breach of a fiduciary duty was not limited by statute in Ontario. Accordingly, no limitation period operated to bar K.K.'s action. As a result, at trial, K.W.G. invoked the equitable doctrine of laches as a defence to K.K.'s claim that she breached her fiduciary duty by failing to intervene to protect K.K. from P.G.

[39] Since the landmark decision of the Supreme Court of Canada in M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85, Canadian courts have accepted that parents owe a fiduciary duty to children in their care. In addition, the Supreme Court held in M. (K.) that incest is both a tortious assault and a breach of the parental fiduciary obligation. [^2] Consequently, fiduciary obligation can serve as an independent head of liability in incest cases. See M. (K.), at pp. 68-69 S.C.R.

[40] In M. (K.), both a statutory limitation period and the equitable doctrine of laches were raised as defences. Justice La Forest, writing for the majority of the Supreme Court, accepted at p. 77 S.C.R. the following description of the equitable doctrine of laches set out in R.P. Meagher, W.M.C. Gummow and [page492] J.R.F. Lehane, Equity Doctrines & Remedies (Sydney: Butterworths, 1984), at p.755:

It is a defence which requires that a defendant can successfully resist an equitable (although not a legal) claim made against him if he can demonstrate that the plaintiff, by delaying the institution or prosecution of his case, has either (a) acquiesced in the defendant's conduct or (b) caused the defendant to alter his position in reasonable reliance on the plaintiff's acceptance of the status quo, or otherwise permitted a situation to arise which it would be unjust to disturb.

[41] Given the considerable passage of time between P.G.'s last sexually abusive act and the commencement of K.K.'s action, it is important to underscore that mere delay, in itself, does not disentitle an applicant from equitable relief, even where the delay is extensive. In M. (K.), La Forest J. stated at pp. 77-78 S.C.R.:

Thus there are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. What is immediately obvious from all of the authorities is that mere delay is insufficient to trigger laches under either of its two branches. Rather, the doctrine considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine.

[42] In this case, K.W.G. argues that the trial judge errred in his analysis of the doctrine of laches in two respects: (i) under the first branch of the doctrine, the trial judge erred by concluding that acquiescence by K.K. had not been established; and (ii) the trial judge erred by failing to hold that, "as a matter of justice as between the parties", the equitable relief claimed by K.K. should be denied. [^3] I reject these submissions for the following reasons.

Approach to laches in an incest case

[43] The fiduciary nature of the relationship between K.K. and K.W.G. must inform consideration of the doctrine of laches in this case.

[44] In M. (K.), also an incest case, the Supreme Court was concerned in part with a statutory limitation defence and the application [page493] of the delayed discovery rule. [^4] Statutes of limitations serve as an incentive for plaintiffs to bring suit on a timely basis. In M. (K.), however, La Forest J. held at p. 31 S.C.R.: "[T]his rationale for a rigorous application of the statute of limitations is particularly inapposite for incest actions."

[45] In La Forest J.'s view, several considerations support this conclusion. These include:

(i) the fact that "many, if not most, of the damages flowing from incestuous abuse remain latent until the victim is well into adulthood" (at p. 31 S.C.R.);

(ii) "when the damages begin to become apparent, the causal connection between the incestuous activity and present psychological injuries is often unknown to the victim" (at p. 31 S.C.R.);

(iii) for many years, powerful social taboos surrounding sexual abuse "conspired with the perpetrators of incest to silence victims" and "maintain a veil of secrecy around the activity" (at p. 32 S.C.R.); and

(iv) also for many years, civil actions based on sexual assault were unknown in Canada and elsewhere, rendering it reasonable for a victim of sexual abuse not to have commenced such a proceeding (at pp. 33-34 S.C.R.).

[46] Similarly, in the context of equitable claims in an incest case -- for example, where, as here, a breach of fiduciary obligation is alleged -- M. (K.) holds that the fiduciary nature of the relationship between a parent and his or her child "supports a liberal application of the [delayed] discovery rule" (at p. 68 S.C.R.). The rationale for this approach flows from the essential character of a parent's relationship to his or her child. As La Forest J. put it in M. (K.), at pp. 61-62 S.C.R.:

[T]he relationship between parent and child is fiduciary in nature, and ... the sexual assault of one's child is a grievous breach of the obligations arising from that relationship. Indeed, I can think of few cases that are clearer than this. For obvious reasons society has imposed upon parents the obligation to care for, protect and rear their children. The act of incest is a heinous violation of that obligation. [page494]

[47] Subsequently, in K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403, [2003] S.C.J. No. 51, McLachlin C.J.C., writing for the majority of the Supreme Court, explained the content of the parental fiduciary obligation in terms that stressed breach of trust (paras. 48-49):

The traditional focus of breach of fiduciary duty is breach of trust, with the attendant emphasis on disloyalty and promotion of one's own or others' interests at the expense of the beneficiary's interests. Parents stand in a relationship of trust and owe fiduciary duties to their children. But the unique focus of the parental fiduciary duty, as distinguished from other duties imposed on them by the law, is breach of trust. . . .

I have said that concern for the best interests of the child informs the parental fiduciary relationship, as La Forest J. noted in M. (K.) v. M. (H.), supra, at p. 65. But the duty imposed is to act loyally, and not to put one's own or others' interests ahead of the child's in a manner that abuses the child's trust. . . . The parent who exercises undue influence over the child in economic matters for his own gain has put his own interests ahead of the child's, in a manner that abuses the child's trust in him. The same may be said of the parent who uses a child for his sexual gratification or 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 puttin g someone's interests ahead of the child's in a manner that abuses the child's trust. Negligence, even aggravated negligence, will not ground parental fiduciary liability unless it is associated with breach of trust in this sense. [^5] (Underlined emphasis in original; italicized emphasis added)

[48] In my view, just as the delayed discovery rule should be liberally applied to avoid too ready a recognition of a limitation period defence in an incest case, so too should the courts be reluctant to allow a defendant in an incest case -- including the 'bystander' parent -- to escape liability for breach of fiduciary duty by invocation of the doctrine of laches.

[49] The considerations identified by La Forest J. in M. (K.) as arguing against a "rigorous application" of a limitations statute in an incest case, listed above, apply with equal force to consideration of a laches defence in an incest case. These considerations relate to the nature and effects of incest and sexual abuse. The policy considerations germane to such offences apply whether a limitation period or a laches defence is raised. Moreover, limitations statutes and laches defences are animated by "similar [page495] policy imperatives" and the requisite inquiries under both "very close[ly]" mirror each other: M. (K.), at p. 79 S.C.R. Finally, given the special character of the parental fiduciary duty and the especially "heinous" nature of the breach of trust and loyalty that incest represents, a strict application of the doctrine of laches in such cases is inappropriate. [^6]

[50] I conclude that the applicable jurisprudence and the policy considerations that underlie it tell strongly against a rigorous application of the doctrine of laches in an incest case, whether claims are advanced against the abusive or the "bystander" parent.

Trial judge's finding of no acquiescence

[51] The trial judge's finding that K.K. did not acquiesce in her mother's wrongdoing was based on his assessment of the whole of the evidence over a lengthy trial. Absent palpable and overriding error, this key factual finding attracts deference from this court: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31; Stein v. Kathy K (The), 1975 146 (SCC), [1976] 2 S.C.R. 802, [1975] S.C.J. No. 104.

[52] The question of whether a plaintiff has acquiesced in the defendant's conduct in an incest case is a fact-specific inquiry that depends on the circumstances of each case: M. (K.), at p. 80 S.C.R. Thus, the operation of the acquiescence branch of the doctrine of laches varies from situation to situation. However, in M. (K.), La Forest J. issued this clear warning: "particularly compelling evidence [is required] to demonstrate that an incest victim . . . 'acquiesced' in the sexual assaults made against her" (at p. 80 S.C.R.). Similarly, in my opinion, cogent and compelling evidence is required to establish that an incest victim acquiesced in the failure of a "bystander" parent to intervene to protect the victim from the abusing parent's wrongful conduct. [page496]

[53] The plaintiff's knowledge of her rights is the critical element in the acquiescence branch of the doctrine of laches. As La Forest J. emphasized in M. (K.), at pp. 78-79 S.C.R.:

It is not enough that the plaintiff knows of the facts that support a claim in equity; she must also know that the facts give rise to that claim. . . . However, this Court has held that knowledge of one's claim is to be measured by an objective standard . . . [T]he question is whether it is reasonable for a plaintiff to be ignorant of her legal rights given her knowledge of the underlying facts relevant to a possible legal claim. (Citations omitted; emphasis added)

[54] Justice La Forest also offered this description of acquiescence: "[A]fter the deprivation of her rights and in the full knowledge of their existence, the plaintiff delays. This leads to an inference that her rights have been waived" (at p. 78 S.C.R.).

[55] Similarly, in R.P. Meagher, W.M.C. Gummow and J.R.F. Lehane's Equity Doctrines & Remedies, 4th ed. (Sydney: Butterworths LexisNexis, 2002), at 1031, the authors suggest that, as an element of laches, acquiescence "denote[s] a plaintiff's behaviour in refraining from seeking redress once he knows his rights have been violated ... and to denote his acceptance of the fact that his rights have been violated" (emphasis added).

[56] What was required in this case for a finding of acquiescence was proof of K.K.'s delay and, further, proof of her knowledge that K.W.G.'s failure to intervene to protect her gave rise to a claim against K.W.G. Given that K.K.'s delay was manifest, the core question was whether it could reasonably be inferred that: (i) K.K. knew that her rights had been violated by her mother as well as by her father; (ii) K.K. also knew that her mother's violation gave rise to a claim; and (iii) nonetheless, K.K. refrained from seeking redress against her mother.

[57] In my opinion, on the record before him, it was open to the trial judge to conclude that these inferences should not be drawn. I say this for four reasons.

[58] First, the trial judge was alert to the centrality of the issue of K.K.'s knowledge in assessing K.W.G.'s laches defence. As he correctly observed: "Knowledge is fundamental to the operation of both the common law discoverability doctrine and the determination of acquiescence in relation to an equitable claim."

[59] Second, the trial judge expressly considered and rejected K.W.G.'s contention that K.K., with full knowledge of her rights, delayed bringing suit until motivated to do so by a desire to seek retribution against her mother for conduct unrelated to P.G.'s sexual abuse, including the threat of disinheritance and other financial and family tensions. [page497]

[60] In so doing, the trial judge took into account K.K.'s denial of any improper motive, as well as the evidence of the many family conflicts and tensions that K.W.G. said formed the real basis for K.K.'s lawsuit. He also noted the absence of any evidence that K.K. was aware, prior to the commencement of her action, that her mother had taken steps to alter the terms of her will. Indeed, as the trial judge pointed out, it was K.K.'s evidence that she knew that her mother would likely take action to disinherit her if she commenced legal proceedings.

[61] Having considered this evidence, the trial judge concluded [at para. 35]:

I suspect the conflict that preceded the commencement of this action may have made it easier for the plaintiff to summon the resolve to proceed, but I do not accept the defendant's contention it was the reason.

Having reviewed the record, it is my view that this conclusion was available to the trial judge on the evidence.

[62] Third, the trial judge accepted that K.K.'s only reason for commencing the litigation was "to force her mother to take some responsibility for what had happened". [^7] At trial, when pressed for an explanation of the timing of her lawsuit, K.K. testified: "[I] was suffering a lot with the sexual abuse and I wanted my mother to realize exactly what I was going through. It was -- I wanted her to know what my pain and suffering was." K.K. expressly denied that her lawsuit was precipitated by any improper motive relating to disputes or conflicts with her mother or her sisters about matters unrelated to the sexual abuse.

[63] Having considered the entirety of the evidence, the trial judge reasoned:

In my opinion, it cannot be reasonably inferred that the plaintiff acquiesced in the defendant's conduct. After escaping from the abuse, the plaintiff coped with the pain and shame by remaining silent. She had no reason to believe that disclosure after she left her parents' home would result in her receiving any more support than she had received when the abuse was occurring. Time and the broken confidence by [E.N.] eventually led to disclosure of the abuse, but there was no acknowledgment of responsibility by the defendant and, in my view, never any acceptance by the plaintiff of her mother's denial of knowledge. I therefore, conclude that acquiescence is not demonstrated and the defence of laches is not established. (Emphasis added) [page498]

[64] In M. (K.), when discussing the application of the discoverability rule to incest, La Forest J. commented, at p. 35 S.C.R.:

I am satisfied that the weight of scientific evidence establishes that in most cases the victim of incest only comes to an awareness of the connection between fault and damage when she realizes who is truly responsible for her childhood abuse.

[65] Thus, in the context of a limitation period defence in an incest case, M. (K.) stresses that the question of when an incest victim became fully cognizant of "who bears the responsibility for her childhood abuse" is a pivotal consideration, for it is only "then that she realizes the nature of the wrong done to her" (at p. 45 S.C.R.).

[66] In my opinion, the trial judge was directing his attention to this factor when he said [at para. 36], "[T]here was no acknowledgment of responsibility by the defendant and, in my view, never any acceptance by the plaintiff of her mother's denial of knowledge." Although the trial judge referred to K.K.'s lack of acceptance of K.W.G.'s "denial of knowledge" of the abuse, rather than to her lack of acceptance of K.W.G.'s failure to intervene in the face of the abuse, he also said: "[I]t cannot be reasonably inferred that the plaintiff acquiesced in the defendant's conduct." I understand the trial judge to have concluded that when K.K. gained knowledge of her rights, she did not accept or condone her mother's failure to protect her or her mother's proffered explanation for that failure. This was tantamount to a finding that K.K. never accepted, waived or forgave her mother's breach of trust and violation of her rights.

[67] Fourth, this critical finding is supported by the record. Other than not commencing proceedings earlier, there was no evidence at trial that K.K. knowingly did anything to signal a waiver, release or abandonment of a claim against K.W.G. Indeed, there is no indication on this record of knowledge by K.K. at any time prior to the summer of 2000 that she had a claim against her mother arising from her mother's failure to intervene to protect her from P.G. For instance, although the trial judge held [at para. 49] that K.K. knew in 1993, as a result of the grandmother incident, "that her mother was aware of the abuse but was not prepared to intervene", there is no evidence that K.K. also knew that she had a right to sue her mother because of this failure to intervene. Nor is there any evidence of a decision by K.K. to refrain from suing K.W.G., knowing that she had a claim against her.

[68] Absent such evidence, or evidence that it was unreasonable in the circumstances for K.K. to be unaware of a possible [page499] claim against K.W.G., it cannot be said that, by her conduct, K.K. waived, affirmed or released her mother's breach of fiduciary duty so as to bar equitable relief on the ground of acquiescence.

[69] I conclude, therefore, that this record falls short of affording what La Forest J. termed in M. (K.) the "particularly compelling evidence" that would be required to demonstrate that K.K. acquiesced in her mother's failure to intervene to stop P.G.'s incestuous conduct.

Justice as between the parties

[70] I am also not persuaded that justice as between the parties compels the application of the doctrine of laches in this case.

[71] I observe first, as the trial judge noted, that K.W.G.'s laches defence at trial rested solely on the first branch of the doctrine of laches -- acquiescence. K.W.G. did not argue at trial, as she does before this court, that "justice as between the parties" provides a discrete basis for the invocation of laches. It is therefore not surprising that the trial judge's reasons contain no explicit analysis of this issue.

[72] I do not read M. (K.) as holding that the objective of achieving justice as between the parties is a third and independent component of the doctrine of laches. Rather, this objective informs the requisite inquiries under the first and second branches of the doctrine. Under either branch, equitable relief may be refused on the ground of laches in circumstances where the plaintiff's conduct would make it unjust to grant the relief sought. See Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221 (J.C.P.C.), at pp. 239-40; and Erlanger v. New Sombrero Phosphate Co. (1878), 3 App. Cas. 1218, [1874-1880] All E.R. Rep. 271 (H.L.), at pp. 1279-80 App. Cas.

[73] K.W.G.'s claim that justice as between the parties mandates the denial of equitable relief to K.K. is predicated on the assertion that K.K.'s delay in commencing or prosecuting her action irreparably prejudiced K.W.G. because she was unable to testify and instruct counsel at trial. In the unusual circumstances of this case, I disagree.

[74] The evidence at trial indicated that K.W.G. was competent in 2000 when K.K.'s action was commenced and was still competent in 2001 when she was examined for discovery. It appears that 2003-2004 marked the onset of her dementia. There is no suggestion that her dementia was foreseeable. Nor, apart from the fact of K.W.G.'s advancing age, is there any evidence to support such a claim.

[75] In particular, there is no assertion on K.W.G.'s behalf that K.K. knew or could have known, either before or when she initiated her lawsuit, that K.W.G. would become incompetent. Nor [page500] does K.W.G. contend that K.K. was responsible for any delay in bringing the action to trial.

[76] Consequently, while K.W.G.'s mental disorder is most unfortunate, there is no basis on this record to visit the consequences of her illness on K.K., or to conclude that the timing of the commencement of her lawsuit or its pace after commencement was influenced by her mother's health. K.W.G. simply succumbed to an unforeseen mental illness -- dementia -- after the commencement of K.K.'s lawsuit.

[77] This factor must be balanced against K.K.'s rights. To hold that K.W.G.'s unexpected illness bars any equitable relief for K.K. would be to deny all redress for an admitted incest victim on account of an unforeseen development that was entirely beyond her control. That outcome would scarcely serve the interests of justice.

[78] Importantly, the record in this case is not silent as to K.W.G.'s history and version of events. As I have mentioned, although K.W.G. was unable to participate at trial due to her mental illness, the trial judge granted K.K. leave to read-in K.W.G.'s discovery evidence as if it were her testimony at trial. He also admitted K.W.G.'s memoir, which provided some insights into her background, life experiences and personality. The reception of this evidence is not challenged on this appeal.

[79] In addition, contrary to K.W.G.'s submission, the trial judge's reasons indicate that he had the issue of alleged prejudice to K.W.G. well in mind. In his analysis of the defence assertion that K.K. acquiesced in K.W.G.'s conduct, the trial judge said this [at para. 35]:

I also reject the submission that acquiescence is established because of the prejudice that has resulted from age and infirmity intervening to prevent the defendant from testifying in her own defence. Such an argument might be sustainable if the action was delayed until after the defendant had succumbed to dementia, but that is not the case.

[80] I would stress two additional factors. First, R.G. was appointed as K.W.G.'s litigation guardian over the objections of K.K. In her sworn affidavit materials filed in support of her motion to be appointed litigation guardian, R.G. essentially represented that, unlike other potential litigation guardian candidates, she was in an informed position to represent her mother's interest, she had been involved in K.K.'s lawsuit from the beginning, and she intended to try and settle the action. In his ruling allowing R.G.'s motion, the motion judge relied on this evidence to hold that R.G. was capable of properly assessing her mother's legal situation so as to "make appropriate decisions concerning [page501] this lawsuit". This finding, and R.G.'s evidence on which it was based, undercut the submission that K.W.G.'s personal inability to instruct counsel at trial deprived her of the opportunity to properly defend the action.

[81] Second, and more generally, the fiduciary nature of K.W.G.'s relationship with K.K. must again be emphasized. The existence of a power imbalance, and the vulnerability of the beneficiary of the relationship to the fiduciary, is inherent to a fiduciary relationship. It is difficult to conceive of a fiduciary relationship that involves a greater inequality of positions, or a more overriding degree of dependency, than that which arises in a young child's relationship with his or her custodial parents. For this reason, the law imposes on the parent a duty to act loyally and to ensure that the parent's interests do not overtake those of the child in a manner that abuses the child's trust or constitutes an abuse of power. See K.L.B., supra; and E.D.G., supra. Where these duties are breached in the manner established in this case, it is my opinion that justice mandates that the denial of equitable relief to the aggrieved plaintiff should be rare.

Conclusion on laches

[82] I do not accept that the timing of the initiation and prosecution of K.K.'s action worked a fundamental injustice on K.W.G. that should be charged to K.K. so as to justify the application of the doctrine of laches.

[83] K.W.G.'s response to K.K.'s claims of abuse and breach of fiduciary duty was documented in her pleading and her discovery evidence. K.K.'s sisters testified for the defence. That K.W.G.'s litigation guardian was able to instruct counsel concerning her defence is evident from the defence decision, taken shortly before trial, to concede -- at that late date -- the fact of P.G.'s sexual abuse of K.K. In my view, K.W.G.'s litigation guardian was positioned to maintain her defence, to instruct counsel and, if so advised, to compromise K.W.G.'s defence.

[84] K.W.G. was a passive bystander to P.G.'s abuse. However, this is not a case where the "bystander" parent learned of the sexual abuse, for the first time, years after it occurred. This is a case where, on the trial judge's findings, the bystander parent knew of the abuse when it was ongoing but took no action of any kind to stop it or to obtain assistance for her victimized child. In so doing, K.W.G. breached her fundamental trust obligation to her daughter.

[85] In all these circumstances, I conclude that the trial judge did not err in rejecting K.W.G.'s defence of laches. [page502]

(2) The knowledge issue

[86] K.W.G. argues that the trial judge's finding that she knew of P.G.'s abuse of K.K. is unsustainable because the trial judge: (i) erred in "processing" the evidence bearing on this key issue, by disregarding or misapprehending relevant evidence and by making unsupportable findings regarding K.K.'s evidence; and (ii) further erred by providing insufficient reasons in support of the impugned finding. I will consider each of these complaints in turn.

[87] First, the alleged "processing" error. K.W.G. faces a significant hurdle to succeed on this ground of appeal. A processing error occurs where a trial judge fails to appreciate the evidence relevant to a factual issue, either by disregarding or misapprehending that evidence. A processing error warrants appellate intervention if it taints that part of the trial judge's reasoning process that was essential to the challenged finding of fact. See Keljanovic Estate v. Sanseverino, 2000 5711 (ON CA), [2000] O.J. No. 1364, 186 D.L.R. (4th) 481 (C.A.), at para. 30, leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 300; and Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. No. 1765, 186 O.A.C. 201 (C.A.), at para. 334, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 291. That said, as I have already indicated, the factual findings of a trial judge attract a high degree of deference from an appellate court and, absent palpable and overriding error, appellate interference with such findings is precluded. See Housen, supra; Waxman.

[88] Accordingly, to displace a factual finding on the basis of an alleged processing error by the trial judge, it is necessary to demonstrate both that the error occurred and that it was palpable and overriding. Neither requirement is met here.

[89] The evidence said by K.W.G. to have been ignored or misapprehended by the trial judge consists of evidence by K.K. and/or her sisters of events surrounding K.K.'s and I.H.'s disclosures of P.G.'s sexual abuse; K.K.'s reactions to, and conduct after, learning of I.H.'s claim of abuse; and events at the 1993 family meeting when, according to K.K., K.W.G. acknowledged the grandmother incident. The evidence of K.K.'s sisters on these issues conflicted with that of K.K. in many respects. As well, there were inconsistencies between the testimony of each of the sisters concerning many events in the 1990s.

[90] The trial judge's reasons indicate that he was aware of and considered the competing versions of events that took place in the 1990s advanced by K.K. and her sisters. In particular, he noted the contradictions between K.K.'s testimony and that of her sisters concerning the discussion of the grandmother incident at the 1993 family meeting, which I have earlier set out. Although the [page503] trial judge did not explicitly refer in his reasons to all the conflicting evidence on these issues, he was not obliged to do so. See Waxman, at paras. 343-45. There is no basis on this record to conclude that he failed to consider, or that he fundamentally misapprehended, the evidence of K.K. or her sisters on the key factual issues in dispute. I am not persuaded, therefore, that the trial judge made the processing error alleged by K.W.G.

[91] In any event, even if it is assumed that the trial judge so erred, it is far from clear that this error would have had any effect on his essential reasoning. In the trial judge's view, the conflicting evidence of the recollections of K.K. and her sisters on events in the early 1990s and on the issue whether K.W.G. acknowledged the grandmother incident at the 1993 family meeting was of little consequence. For example, with respect to the 1993 meeting, he stated [at para. 49]:

I do not see that this conflict in the testimony of the plaintiff and her sisters is critical in determining whether [the grandmother] incident occurred. I believe it did occur because of the convincing nature of the plaintiff's description of the incident. That event, like none other, must have had an enormous impact on the plaintiff. It was then that the plaintiff came to know for certain that her mother was aware of the abuse but was not prepared to intervene.

[92] Thus, the impugned finding of knowledge by K.W.G. was firmly anchored in the trial judge's conclusion that the grandmother incident in fact occurred, as described by K.K. This conclusion was not dependent on resolution of the witnesses' conflicting evidence concerning K.W.G.'s alleged acknowledgment, years later, of the incident. K.K.'s evidence of the fact of the grandmother incident, once accepted by the trial judge, was sufficient to fix K.W.G. with knowledge of her husband's sexual abuse of K.K.

[93] I also disagree with K.W.G.'s assertion that the trial judge's treatment of K.K.'s evidence is tainted by the failure to consider or to correctly apprehend critical evidence in any material respect. This argument, in effect, challenges the trial judge's weighing of the evidence of K.K. and her sisters and his appreciation of their credibility. One example will suffice to illustrate this point. In her factum on appeal, K.W.G. argued that the trial judge erred by characterizing certain of K.K.'s evidence as "extravagant" while also accepting that the substance of her evidence about P.G.'s sexual abuse was truthful and accurate. These are matters going to the heart of K.K.'s credibility, the assessment of which was squarely within the trial judge's domain. These findings attract great deference from this court. I see no basis on which to conclude that they are tainted by reversible error.

[94] Finally, I would reject K.W.G.'s attack on the sufficiency of the trial judge's reasons. Those reasons are 26 pages and 90 [page504] paragraphs in length. Properly read, they reveal the trial judge's reasoning in support of his critical findings, including his key finding that K.W.G. knew of P.G.'s sexual abuse, and amply provide for meaningful appellate review. Accordingly, they meet the sufficiency of reasons standard set out in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30 and R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, [2002] S.C.J. No. 29, 162 C.C.C. (3d) 324.

(3) The standard of proof issue

[95] K.W.G. next argues that the trial judge erred by holding that, in order to establish a defence to K.K.'s claim of breach of fiduciary duty, K.W.G. was obliged to prove with "absolute certainty" that she was powerless to intervene to prevent P.G.'s abuse.

[96] This submission must be placed in context. The defence led evidence at trial that K.W.G.'s personal history and characteristics may have prevented her from acting in the face of knowledge that K.K. was being sexually abused. For example, the evidence indicated that while interned in a Russian labour camp, K.W.G. was herself subjected to repeated sexual abuse, as well as other atrocities. Dr. Klassen testified that this history of sexual trauma, combined with K.W.G.'s alleged fear of her husband and other factors, "may have contributed to a style of adaptation that could conceivably have caused problems for her in dealing with various problems in her family, including the sexual abuse of her daughters" (emphasis added).

[97] In respect of this theory of an "inability to intervene", the trial judge stated [at para. 55]:

Indeed, I have no difficulty in accepting that a mother who is unable to act should not be held in breach of the duty to protect. A fiduciary duty arises from the nature of the relationship and the ability to fulfill the duty is inferred from the relationship. It is an inference that may be rebutted, but the evidentiary burden for doing so rests with the person on whom the duty is imposed by virtue of the relationship. It is, therefore, incumbent upon the fiduciary to demonstrate that she did not have the ability, awareness and means to act.

[98] The trial judge thus held that if K.K. established a breach of fiduciary duty by K.W.G., the onus of proof shifted to K.W.G. to establish any asserted defence to that breach, including a defence based on a posited inability to intervene to prevent the abuse that gave rise to the breach.

[99] It is important to emphasize that K.W.G.'s challenge on appeal concerns the standard of proof allegedly applied by the trial judge. It does not concern the burden of proof. K.W.G. does not contest the trial judge's allocation of an evidential burden to her. To the contrary, K.W.G.'s counsel acknowledged before this [page505] court that K.W.G. bore the onus at trial to establish the defence contention that she was unable to intervene to prevent P.G.'s abuse.

[100] Thus, this case does not turn on the issue of burden of proof. Rather, K.W.G.'s complaint is that the trial judge, in assessing her ability to intervene, applied too stringent a standard of proof by requiring proof to a standard of "absolute certainty". In my opinion, this ground of appeal fails.

[101] The defence advanced the theory of K.W.G.'s inability to intervene in response to the allegation that she breached her fiduciary obligation to protect K.K. K.W.G., therefore, did not merely deny the breach but also advanced the substantive defence of an alleged inability to act. In these circumstances, while K.K. was obliged to establish the breach, K.W.G. bore an evidential burden to establish that her inability to act was a live issue, by either adducing sufficient evidence or pointing to other evidence on the record of her claimed inability to act. See John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992), at p.56 and pp.60-65. If this threshold was met, the issue was whether the trial judge was ultimately persuaded on the evidence, to the requisite civil standard of proof, of K.W.G.'s alleged inability to act.

[102] There is nothing in the trial judge's language or reasoning to explicitly suggest that he applied any standard of proof other than the civil standard of proof on a balance of probabilities in determining whether K.W.G. was powerless to intervene to protect her daughter from P.G.'s sexual abuse.

[103] Nor do I think that the error alleged arises by necessary implication. The trial judge reviewed the expert evidence bearing on K.W.G.'s alleged powerlessness, including, especially, Dr. Klassen's evidence. On my reading of his reasons, he accepted this evidence -- as far as it went -- but concluded that it lacked sufficient cogency to support anything more than merely a theoretical possibility that K.W.G. had been powerless to protect K.K. The trial judge said [at para. 59]:

I accept that [K.W.G.'s] history and circumstances may have conspired to prevent her from acting in the face of knowledge that the plaintiff was being abused by P.G. However, a determination that the defendant may have lacked the personal resources to intervene, as Dr. Klassen suggests, is not sufficient to support a finding that she was unable to act. (Emphasis in original)

[104] When the trial judge's reasons are read as a whole, it is apparent that he viewed the expert evidence of K.W.G.'s asserted inability to intervene as too tentative and hypothetical to ground a finding that K.W.G. in fact experienced such powerlessness. In [page506] my view, this is a fair reading of the evidence. For example, as the trial judge noted [at para. 58], Dr. Klassen indicated that he was not in a position to comment on whether K.W.G. "would have been able to deal, psychologically, with the notion [that K.K.] was being sexually abused" or "on the extent to which [K.W.G.] ... may have ... lacked the personal resources, for reasons not of her choosing, to intervene". Instead, Dr. Klassen listed several "possible" circumstances, that he said "may" have rendered K.W.G. unable to intervene.

[105] Two of K.K.'s sisters, R.G. and I.H., testified that K.W.G. feared P.G., as they did. The third sister, E.N., said that "maybe" K.W.G. was afraid of P.G. and, like her daughters, "did what [she was] told and everything was good". The trial judge indicated that K.K. testified that her mother was "unafraid" of P.G. In making this statement, the trial judge misapprehended the evidence. K.K. testified that while she did not know whether her mother feared P.G., she thought that K.W.G. "should have been fearful of him because I was". However, as I indicate below, it was not K.K.'s evidence but the evidence of K.W.G. herself on discovery from which the trial judge was entitled to conclude that K.W.G. was unafraid of P.G.

[106] On discovery, K.W.G. said: P.G. was not "a tough guy" but, rather "a pussycat"; in their early years in Canada, she persuaded P.G. to give up a heavy drinking habit; when P.G. yelled at her, she "start[ed] laughing"; she would have left P.G. if he ever hit her; on one occasion when P.G. did strike her, she "packed her things" and threatened to leave him; when P.G. yelled at the children, she talked to him and told him that he "better shut up" and "Just leave them alone"; P.G. listened to her when she admonished him on that occasion; and, if she had seen P.G. hitting their children, she would have "took over for sure" and "Then I would be the boss."

[107] Two parts of K.W.G.'s discovery testimony are especially telling. According to K.W.G., if she had ever witnessed her husband acting in a sexually inappropriate manner with their children, "I might be in jail because I might have killed him. Things like that wouldn't work with me if I would have seen this" and "If I would have seen something, you think I would let that happen? I would be in jail. I would have killed him." Then this exchange took place:

Q. Would you say he's the head of the family or was that something you shared?

A. No, we shared that. I had the same rights.

This is not the picture of a woman frozen into inaction by a domineering and abusive spouse. [page507]

[108] In any event, the evidence of whether K.W.G. feared her husband was but one factor among many to be assessed by the trial judge in determining if K.W.G. was powerless to protect K.K. Other evidence at trial contradicted the defence hypothesis of an inability on the part of K.W.G. to intervene to protect K.K. This included K.K.'s evidence that her mother presented as strong, cold and self-assured and the evidence of K.W.G.'s long-standing solicitor -- an independent witness -- who described K.W.G. as a woman "who knows her own mind", "a dominant personality" and a "drama queen". This evidence also supported the conclusion that K.W.G. was not powerless to intervene against her husband.

[109] I am persuaded that, in the end, the trial judge simply weighed the evidence that supported and countered the defence theory of K.W.G.'s inability to intervene and, while acknowledging the hypothetical possibility that she might have experienced such powerlessness, concluded on the evidence that this theory was unsustainable. I see no reviewable error in this assessment of the evidence.

(4) The damages issues

Damages for lost income

[110] At trial, K.K. claimed damages for lost income from 1959 until March 2006 -- when she turned 65. In support of this claim, she relied on Karen Dalton's evidence of various methods by which her economic loss might be calculated. On Ms. Dalton's evidence, K.K.'s total lost income for the years in question ranged from $178,200 to $622,902.

[111] K.K. also relied on the evidence of Dr. Jaffe, who testified that the symptoms associated with child sexual abuse diminish the effectiveness of the victim at school or in the workplace. Dr. Jaffe offered the opinion that K.K. did not achieve to her potential and that "it was more likely than not that the abuse had adversely impacted her ability to do so".

[112] K.W.G. responded with the evidence of her economic loss expert, Errol Soriano, and that of Dr. Klassen. As I have said, unlike Dr. Jaffe, Dr. Klassen was not accepted at trial as an expert qualified to give opinion evidence on the economic consequences of sexual abuse. Nonetheless, it appears that he did offer opinions on this issue during his testimony.

[113] Dr. Klassen said that it was unlikely that P.G.'s sexual abuse was implicated in K.K.'s educational or occupational "trajectories". In his written report dated September 8, 2005, Dr. Klassen stated: "[I]t is not clear to me that [K.K.'s educational [page508] and occupational] course is referable to or predicated on the history of sexually assaultive behaviour." For his part, Mr. Soriano was critical of Ms. Dalton's analysis of K.K.'s economic loss. In his opinion, K.K. failed to adduce sufficient information to permit quantification of her claim for past lost income.

[114] The trial judge rejected Ms. Dalton's analysis in its entirety and accepted Mr. Soriano's opinion that K.K.'s lost income claim "defie[d] calculation". He also accepted Dr. Klassen's evidence that factors other than P.G.'s sexual abuse affected K.K.'s educational and occupational achievements.

[115] However, the trial judge also expressly held that P.G.'s sexual abuse did have an adverse impact on K.K.'s income earning capacity. With respect to K.W.G.'s conduct, he found that her failure to protect K.K. from P.G. not only exposed K.K. to "the physical trauma, humiliation and desperation of persistent abuse over many years", but also caused K.K. "psychological injury that has diminished her ability to function in virtually every aspect of her life" including "her effectiveness at school and in the workplace" and that this impediment was "significant".

[116] The trial judge's conclusion concerning K.K.'s economic loss claim was expressed in these terms [at para. 84]:

Notwithstanding my concerns about the shortcomings of the evidence relating to the plaintiff's economic loss, I am satisfied that there is sufficient evidence for me to find that the defendant's failure to protect the plaintiff from her father's abuse diminished her effectiveness at school and in the workplace and thereby impeded her ability to achieve her full potential. In my view, this impediment had an adverse impact on her ability to earn income. Although the claim defies precision in quantification, I am satisfied the impediment was significant and award the plaintiff damages of $100,000.00 for loss of income to March 16, 2006.

[117] Against this backdrop, K.W.G. advances two propositions. She submits that there was no evidentiary foundation: (i) for determining that K.W.G.'s breach of fiduciary duty impeded K.K.'s earning capacity; and (ii) for calculating any economic loss that she may have suffered.

[118] K.W.G.'s first proposition is incorrect. Dr. Jaffe's and K.K.'s evidence supported the trial judge's finding that K.W.G.'s breach negatively affected K.K.'s ability to achieve her life potential, including her educational and occupational potential. For example, on Dr. Jaffe's evidence, K.W.G.'s failure to protect K.K. from P.G.'s abuse accounted for the extent and duration of the abuse and aggravated K.K.'s "level of dysfunction". A finding based on this evidence cannot be characterized as a finding without evidentiary support. [page509]

[119] K.W.G.'s second proposition, however, is supported by the record and the trial judge's findings. Once Ms. Dalton's evidence of proposed scenarios for the calculation of K.K.'s lost income was rejected by the trial judge, there was no evidentiary foundation for quantification of this claim.

[120] As the above-quoted passages from his reasons indicate, the trial judge recognized this important deficiency in the record. However, this evidentiary shortcoming did not mean that K.K.'s economic loss claim was to be rejected entirely.

[121] In Martin v. Goldfarb (1998), 1998 4150 (ON CA), 41 O.R. (3d) 161, [1998] O.J. No. 3403, 163 D.L.R. (4th) 639 (C.A.), at para. 34, leave to appeal to the S.C.C. refused [1998] S.C.C.A. No. 516, Finlayson J.A. made the point that a plaintiff should not be able to recover a higher damages award merely because his or her claim is characterized as a breach of fiduciary duty, as opposed to breach of contract or tort. Proof of damages is still required. See also Waxman, supra, at para. 661. He further held that a plaintiff is not entitled to have damages assessed by guesswork when he or she fails to discharge his or her burden of adducing proof of damages (at paras. 67 and 74). In the absence of such proof, rendering it impossible to assess damages, a plaintiff is entitled to nominal damages at best. However, where there are complex contingencies, incapable of proof, a court must then do its best to assess the quantum of damages (at para. 75).

[122] This is not a case where the absence of evidence makes it impossible to assess damages, thereby reducing K.K.'s entitlement to only nominal damages at best. In this case, unlike in Goldfarb, K.K. called evidence that assisted the court in proving and identifying the loss she suffered. The trial judge was satisfied that her loss was "significant". What the trial judge rightly rejected was the basis for the calculation of K.K.'s loss. What K.K. suffered was a lost opportunity to be in a safe environment that would have allowed her to continue her education at the time in her life when her career choices mattered most. This lost opportunity is distinct from the general damages that the trial judge awarded. See, for example, K.A.T. v. J.H.B., 1998 15073 (BC SC), [1998] B.C.J. No. 1141, 51 B.C.L.R. (3d) 259 (S.C.), at para. 60.

[123] While the trial judge did his best to assess K.K.'s damages for economic loss, the factors on which he based his award significantly overlapped with those pertinent to his assessment of general damages. Respectfully, the trial judge also failed to adequately consider the many other complex contingencies that had to be taken into account in assessing damages for the lost opportunity suffered by K.K. [page510]

[124] Accordingly, the trial judge's award of damages for lost income cannot stand. In my opinion, on this record, $20,000 is a reasonable estimate of K.K.'s damages for her lost opportunity to maximize her earning potential.

Damages for future care

[125] K.W.G. also challenges the trial judge's award of damages in the amount of $30,000 for future care on the basis that K.K. had been receiving and could continue to receive publicly-funded counselling services. As a result, K.W.G. maintains, the award of damages for future care amounts to "double recovery". I disagree.

[126] Drs. Jaffe and Klassen agreed that K.K. would benefit from ongoing treatment and counselling to deal with the effects of the sexual abuse that she endured. Indeed, Dr. Jaffe recommended long-term counselling on a weekly basis for up to ten years. The trial judge's reasons reveal that he considered the evidence regarding the publicly funded psychological and psychiatric services in the community where K.K. resides and concluded that the availability of timely and accessible services was uncertain. He was also of the view that K.K. was entitled to "some reasonable choice in her selection of available therapeutic regimes" and that she should have the opportunity to access private psychological counselling.

[127] In the result, he reduced K.K.'s claim for future care damages from the sum of $85,000 to $30,000, to take account of K.K.'s duty to mitigate her damages. This significantly reduced award, in the trial judge's view, was sufficient to meet K.K.'s "reasonable long term therapeutic needs". I see no basis on which to interfere with this assessment of damages.

(5) The cross-appeal

[128] Prior to trial, K.K. made an offer to settle under Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The offer was not accepted. When the offer proved to be more favourable to K.W.G. than the result at trial, K.K. sought recovery of her costs on a partial indemnity scale to the date of her offer and on a substantial indemnity scale thereafter, in accordance with rule 49.10(1). The trial judge declined to award costs on a substantial indemnity scale and, instead, awarded K.K. her costs throughout on a partial indemnity scale. K.K. cross-appeals from that decision.

[129] A trial judge has a broad discretion regarding the awarding of costs in civil proceedings. A trial judge's costs determination is entitled to appellate deference. It will not be set aside on appeal unless the trial judge made an error in principle or the [page511] costs award was plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, [2003] S.C.J. No. 72, at para. 27; Murphy v. Alexander, 2004 15493 (ON CA), [2004] O.J. No. 720, 236 D.L.R. (4th) 302 (C.A.), at para. 55.

[130] The costs consequences of a rejected offer to settle as enunciated in rule 49.10(1), while important to the conduct of civil litigation, are not automatic. The language of rule 49.10(1) expressly permits a trial judge to depart from a strict application of the rule. This court has held that the trial judge is in the best position to determine whether such a departure is warranted on an exceptional basis in a particular case. See Orlando Corp. v. Bothwell-Accurate Co., [2004] O.J. No. 2802, 1 C.P.C. (6th) 144 (C.A.), at para. 14.

[131] In this case, after considering the evidence and the issues at trial and the unusual circumstances arising from K.W.G.'s mental illness, the trial judge held that rule 49.10(1) should not be strictly applied. I cannot say that this discretionary decision was plainly wrong or tainted by an error in principle. Accordingly, I would not interfere with the trial judge's costs award.

V. Disposition

[132] For the reasons given, I would allow the appeal in part, by setting aside the trial judge's award of damages for lost income and substituting an award of $20,000. I would dismiss the appeal in all other respects. Although I would grant leave to the respondent to appeal costs, I would also dismiss the cross-appeal. As success in these proceedings is divided, I would make no award of costs in respect of the appeal and cross-appeal.

BLAIR J.A. (dissenting):--

Overview

[133] I have had the opportunity to read the draft reasons of my colleague Justice Cronk. I agree with her reasons and her disposition with respect to the trial judge's award of $100,000 for lost income and with her decision to substitute an award of $20,000 in its stead. Like her, as well, I would grant leave to appeal the trial judge's costs award but would dismiss the cross-appeal.

[134] Respectfully, however, my analysis leads me to a different conclusion concerning the appellant's liability. I would allow the appeal in that regard for two reasons. First, while I agree with the trial judge -- and with my colleagues -- that the appellant mother owed a fiduciary duty to her daughter to protect her from sexual abuse by her father if able to do so, the trial judge erred in [page512] arriving at his conclusion that the appellant had the ability to do so in these circumstances. Secondly, he erred in failing to apply the doctrine of laches in favour of the appellant.

[135] Both of these issues take their texture from the fact that the appellant, who was 82 years old at the time of trial, was by then suffering from dementia, had become legally incapacitated, and was unable to provide instructions, participate, or testify at the trial. Through no fault of her own she was not there to defend herself in a case that turned on issues of credibility.

Liability for Breach of Fiduciary Duty

[136] I do not question that a fiduciary relationship exists between parent and child: see M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85. I also do not question that a mother owes a fiduciary duty to protect a child from sexual abuse by the child's father where she is capable of doing so and fails to take reasonable steps to do so in the circumstances: see, for example, J. (L.A.) v. J. (H.) (1993), 1993 8657 (ON SC), 13 O.R. (3d) 306, [1993] O.J. No. 266 (Gen. Div.); L.T. v. R.W.T., 1997 2080 (BC SC), [1997] B.C.J. No. 1232, 36 B.C.L.R. (3d) 165 (S.C.); and P.B. v. R.V.E., [2007] B.C.J. No. 2305, 2007 BCSC 1568. I also accept without hesitation the dreadful nature of the incestual abuse inflicted on the respondent by her father as well as its grave and enduring consequences.

[137] Respectfully, however, the trial judge erred by concluding, in effect, that because the expert, Dr. Klassen, could only say that the appellant may have lacked the personal resources to intervene on behalf of her daughter, the appellant had not met the burden of establishing she was incapable of acting in furtherance of her fiduciary obligations. Two things concern me about this.

[138] First, the appellant had no such burden. By conflating an "evidential burden" to show there is sufficient evidence of a fact to put it in play with an "ultimate burden" to establish a fact, the trial judge lost sight of the plaintiff's overall burden. The plaintiff's overall burden is to show, on a balance of probabilities, that the appellant had breached her fiduciary duty by failing to take reasonable steps to prevent the abuse. The trial judge erred by placing the onus on the appellant to demonstrate that she was incapable of acting.

[139] Secondly, the trial judge's analysis of this issue is tainted by his failure to consider the argument of appellant's counsel at trial that it was the cumulative effect of the evidence of the father's dominance at home, the trauma from sexual and other abuse she had suffered while interred in a prison camp in the former Soviet Union and the societal realities of the 1950s that [page513] affected the appellant's ability to respond. Although the trial judge acknowledged this argument, he gave it little -- if any -- consideration in his analysis, instead focusing primarily on the evidence of the expert witness Dr. Klassen.

The onus question

[140] On behalf of the appellant, Mr. Honickman argued that the trial judge imposed an impossible standard on the appellant by requiring her to prove with "absolute certainty" that she was powerless to intervene. I am not able to find anything in the reasons of the trial judge that articulates or suggests such a standard. What the trial judge did do, however, was to infer a rebuttable presumption that the appellant had the ability to fulfill her fiduciary duty from the existence of the relationship itself. He also held that she had failed to meet the evidentiary burden of rebutting that inference. He said at para. 55:

A fiduciary duty [between a mother and child] arises from the nature of the relationship and the ability to fulfill the duty is inferred from the relationship. It is an inference that may be rebutted, but the evidentiary burden for doing so rests with the person on whom the duty is imposed by virtue of the relationship. It is, therefore, incumbent upon the fiduciary to demonstrate that she did not have the ability, awareness and means to act. (Emphasis added)

[141] The trial judge cited no authority for the proposition that the existence of a fiduciary relationship creates a rebuttable inference that the person on whom the duty is imposed by virtue of the relationship has the ability to fulfill that duty. He nonetheless rejected the appellant's argument on this ground at trial because he concluded that Dr. Klassen's evidence that the appellant may have lacked the resources to intervene was "not sufficient to support a finding that she was unable to act". In my view, the issue was not whether there was sufficient evidence to support a finding that she was unable to act, much less whether the defendant fiduciary had demonstrated that fact. Although such a finding would clearly result in the dismissal of the claim, it was not necessary that it be made. The question was whether the plaintiff had met her overall burden of demonstrating that the appellant had breached her fiduciary obligation by failing to take reasonable steps in the circumstances to interv ene when she had the ability to do so.

[142] Mr. Honickman conceded that there was an evidentiary shift in the burden in cases of this nature. Nonetheless, the ultimate or "persuasive" burden remains on the plaintiff. In law, the evidentiary burden is not a burden "to establish" anything. As [page514] Dickson C.J.C. pointed out in R. v. Schwartz, 1988 11 (SCC), [1988] 2 S.C.R. 443, [1988] S.C.J. No. 84, at pp. 466-67 S.C.R.:

The party who has the persuasive burden is required to persuade the trier of fact, to convince the trier of fact that a certain set of facts existed. Failure to persuade means that the party loses. The party with an evidential burden is not required to convince the trier of fact of anything, only to point out evidence which suggests that certain facts existed. (Emphasis added)

[143] I agree with my colleague's view of the nature of the evidentiary shift, as expressed in para. 102 of her reasons:

In these circumstances, while K.K. was obliged to establish the breach, K.W.G. bore an evidential burden to establish that her inability to act was a live issue, by either adducing sufficient evidence or pointing to other evidence on the record of her claimed inability to act. See John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada (Toronto and Vancouver: Butterworths, 1992) at 56 and 60-65. (Emphasis added)

[144] Respectfully, however, that is not the test or standard the trial judge applied.

[145] Justice J.S. Sigurdson accurately expressed that burden in cases of this nature, in my view, in B.P. v. R.V.E., supra. At paras. 246-47, he said:

However, in the circumstances, I have concluded that the evidence is not sufficiently clear and cogent to find liability on the part of [the mother].

Although I prefer the evidence of [the daughter] generally over that of her mother, I find that insofar as the claim against her mother is concerned, there is insufficient cogent evidence to demonstrate that [the mother] was capable of and failed to take steps that were reasonable in the circumstances to protect her daughter from [her father]. (Emphasis added)

[146] Sigurdson J.'s reference to "clear and cogent" evidence to support liability warrants some reflection as well, given the nature of the allegations. Courts have held that they are to take greater care in scrutinizing the evidence in civil cases when allegations of a serious nature -- such as sexual misconduct or other conduct of a morally blameworthy nature -- are made. Allegations that a mother has breached her fiduciary duty by failing to protect her daughter from sexual abuse by her father fall into a similar category, in my opinion. This view of the civil burden does not represent a change in the balance of probabilities standard, but merely the application of that standard "with careful scrutiny of the evidence in a manner that is proportionate with the serious claims being alleged": B.P. v. R.V.E., at para. 127. See Continental Insurance Co. v. Dalton Cartage Co., 1982 13 (SCC), [1982] 1 S.C.R. 164, [1982] S.C.J. No. 116, at pp. 169-71; [page515] R.C. v. McDougall, [2007] B.C @@.J. No. 721, 2007 BCCA 212, 68 B.C.L.R. (4th) 203 (C.A.), leave to appeal to S.C.C. granted [2007] S.C.C.A. No. 328; and G.W. v. Sisters of the Good Shepherd, 2000 7899 (NB CA), [2000] N.B.J. No. 177, 227 N.B.R. (2d) 16 (C.A.). See also Linda R. Rothstein, Robert A. Centa and Eric Adams, "Balancing Probabilities: The Overlooked Complexity of the Civil Standard of Proof" (Paper delivered at The Law of Evidence Conference, June 2003) (Toronto: The Law Society of Upper Canada, 2003) 455.

[147] The need for "careful scrutiny of the evidence" takes on significance in the context of the laches issue as well. I shall return to this point later in these reasons.

Application of the burden

[148] Here, the trial judge acknowledged the defence contention that the appellant was powerless to intervene given the cumulative effect of the father's dominance within the family, the historical trauma that the appellant had suffered while interred in a prison camp prior to immigrating to Canada and the societal mores of the 1950s about revealing issues of familial sexual abuse. He also acknowledged the plaintiff's argument that the appellant's own evidence in a memoir she had written concerning her life experiences and on her examination for discovery was sufficient to show that she was not intimidated by her husband. But he did not analyze either of these positions.

[149] After outlining these positions, the trial judge's reasons regarding the appellant's capacity to act consist of the following [at paras. 58-60]:

Dr. Klassen addressed the issue of the defendant's capacity to act in the following excerpt from his report of September 8, 2005:

In addition to being unable to comment on whether or not [the respondent's] mother may or may not have known about the alleged sexual behaviour, including its scope or duration, on a cognitive level, I am also not in a position to comment on whether or not [the respondent's] mother would have been able to deal, psychologically, with the notion that her daughter was being sexually assaulted by her husband. By means of example, one cannot rule out the possibility that [the respondent's] mother herself was traumatized in one or more ways, leading to extensive use of denial and repression to manage conflict. As well, there may have been a relationship dynamic between [the respondent's] mother and father that may have made it difficult for [the respondent's] mother to feel empowered to act on information that she may have had, given that [the respondent's] father was described as violent and domineering. In short, I believe that it is impossible for me to comment on the extent to which [the appellant] may have k nown of the sexually assaultive behaviour, and it is similarly difficult if not impossible for me to comment meaningfully on the extent to which [the respondent's] [page516] mother, if she knew, may have engaged in wilful neglect of [the respondent], as opposed to having lacked the personal resources, for reasons not of her choosing, to intervene. (Emphasis added)

Notwithstanding the bravado displayed by the defendant in her memoir and on her examination for discovery, I accept that her history and circumstances may have conspired to prevent her from acting in the face of knowledge that the plaintiff was being abused by [the father]. However, a determination that the defendant may have lacked the personal resources to intervene, as Dr. Klassen suggests, is not sufficient to support a finding that she was unable to act.

I, therefore, conclude that the defendant breached her fiduciary duty to the plaintiff when she failed to protect the plaintiff from the physical and sexual abuse that she knew was being perpetrated by [the father].

[150] The trial judge's analysis, then, focuses on Dr. Klassen's comment that the appellant may have lacked the personal wherewithal to intervene, from which he concluded [at para. 59] there was not sufficient evidence "to support a finding that [the appellant] was unable to act".

[151] This was considered insufficient to meet the appellant's onus, and therein lies the error regarding the burden of proof, in my view. The trial judge's discounting of the "bravado" displayed by the appellant in her memoir and on discovery, and his acceptance "that her history and circumstances may have conspired to prevent her from acting in the face of knowledge that the plaintiff was being abused by [the father]" were enough to make the appellant's inability to intervene "a live issue" -- to adopt my colleague's phraseology. The question should then have become whether on all of that evidence, the plaintiff had met her onus of demonstrating that the appellant had breached her fiduciary duty by failing to take reasonable steps to prevent the abuse when she was able to do so. That is not the question the trial judge asked, however. Instead, he essentially asked only whether the appellant had demonstrated that she did not have the ability, awareness and means to act; he did not direct his mind to determining whether the plaintiff had demonstrated in all the circumstances that the appellant did have the ability, awareness and means to act.

[152] For example, considerable evidence was led at trial about the dynamics of the family and the father's role in it, and about the historical sexual and other abuse the mother herself was subjected to in the Russian prison camp. In addition, the appellant had attempted to deal with those issues in her memoir and she gave evidence about them on her examination for discovery. The trial judge did review some of that evidence earlier in his reasons. But except for his general reference to it in the passage [page517] from his reasons cited immediately above, he gives no indication how that evidence played into his determination about the appellant's ability to fulfill her fiduciary obligations.

[153] Furthermore, the trial judge misapprehended a key piece of the respondent's evidence. The respondent has three sisters. The evidence of the sisters was that their father was the dominating force in the family and that they, and their mother, were afraid of him. He was the boss, they said, and everyone -- again, including the appellant -- did what he told them to do. In contrast, the trial judge said that the respondent described the appellant as "unafraid of her father". The respondent did volunteer that comment in the context of an answer to the effect that her mother would talk back to her father. However, it was not the thrust of the respondent's evidence that her mother was "unafraid of her father", a man whom she described variously as "cruel", "vicious" and a "monster". In fact her evidence on this issue was at least neutral and arguably was to the contrary. In cross-examination, the following exchange took place:

Q. When did your mother stand up to your father?

A. She would talk back to him. She wasn't afraid of him.

Q. Well, I thought you said before that you agreed that she may have been fearful of him?

A. Well, that -- I thought that, but I don't know if she was. I just felt she should have been fearful of him because I was.

Q. And I wrote down different words that you've used at different times describing your father, cruel, correct?

A. Yes.

Q. Fault-finding?

A. Yes.

Q. Terrifying, humiliating, correct?

A. Yes.

Q. And you have absolutely no idea, I'm going to suggest to you, the scope, for example, of any abuse if there was any against your mother by your father, correct?

A. No, I haven't.

Q. You have no idea?

A. No.

Q. Could have been, verbally? Was he -- he was verbally abusive in front of you to your mother, correct?

A. Yes. [page518]

Q. You don't know if he was physically abusive?

A. No, I don't.

Q. You have absolutely no idea of what when on, to use the vernacular, behind closed doors, behind the two of them, do you?

A. No, I don't.

Q. You don't know what level of trauma, if any, your mother may have experienced at the hands of your father, do you?

A. No.

Q. And -- and you agree with me, you have no idea what was going on with your mother psychologically back then in the 1950's with respect to her own personal trauma and what she could do or couldn't do, correct? You have no idea, right?

A. I have no idea. . . . . .

Q. And was it your perception back then that your mother was fearful of your father at any time?

A. It wasn't my perception. I just felt she -- she was possibly fearful of him, because I was fearful of him. (Emphasis added)

[154] The trial judge's view that the appellant was "unafraid of her father [the husband]" is troubling, and significant. The trial judge made no findings of credibility as between the respondent and her three sisters. Indeed, he went out of his way not to do so, taking the view that there were understandable inaccuracies in all of their testimonies and that it was unnecessary for him to make such findings. However, his disposition of the case can only be supported on the basis that he accepted the evidence of the respondent where he had to do so, and this, in turn, has implications for his acceptance or rejection of the appellant's version of events as set out on her examination for discovery, particularly when the appellant was incapable of presenting that version of events personally to the judge at trial. I shall return to this specific point in more detail when dealing with the issue of laches. For present purposes, it is sufficient to say that the trial judge misapprehended the respondent's evidence o n a very key point.

[155] The evidence of the respondent's three siblings was that they were all afraid of their father, including the appellant mother. The evidence of the respondent -- at best -- was that she did not know, but that she too thought that her mother was afraid of her abuser. Had that evidence been considered by the trial judge in the course of his analysis about whether the appellant had the ability to intervene to protect her daughter -- along [page519] with the evidence of the other sisters and the appellant about her historical abuse, and with some recognition of societal mores in the 1950s at least discouraging the public disclosure of such events -- it might well have affected the trial judge's decision on this issue. This might be so, particularly, had the trial judge concentrated, as he should have, on the plaintiff's overall burden to show that the appellant breached her fiduciary duty by failing to take reasonable steps to intervene when she had the ability to do so rather than plac ing the burden on the appellant to establish that fact. This is all enhanced by the trial judge's downplaying of the appellant's attempts in her memoir and on discovery to portray herself as a strong independent woman by dismissing them as bravado.

[156] I would allow the appeal and, in other circumstances, would have ordered a new trial on this ground alone. Because of the view I take on the application of the doctrine of laches in this case, however, I am satisfied that the appeal should be allowed and the plaintiff's action dismissed. I turn to the issue of laches now.

The Doctrine of Laches

[157] My colleague has outlined the principles governing the application of the doctrine of laches, as articulated by La Forest J. in M. (K.) v. M. (H.). There are two branches to the doctrine, and it is well-established that mere delay -- even extensive delay -- does not, by itself, disentitle an applicant to equitable relief. For convenience, I repeat the statement of La Forest J., at pp. 77-78 S.C.R. of M. (K.) v. M. (H.), defining the doctrine:

Thus there are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. What is immediately obvious from all of the authorities is that mere delay is insufficient to trigger laches under either of its two branches. Rather, the doctrine considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine. (Emphasis added)

[158] For purposes of disposing of the appeal, I need not accept the appellant's argument that the trial judge erred by concluding that acquiescence on the part of the respondent had not been established. I say that because I am satisfied that he did err in failing to hold that the equitable relief claimed by the respondent should be denied "as a matter of justice between the parties" because the inescapable reality is that, by the time of trial, the delay had resulted in a situation where it was unjust to find and impose liability on the appellant in the circumstances. The appellant was [page520] 82 years of age by then. She was legally incapacitated, unable to instruct her counsel and incapable of participating or testifying at trial. This in a case that turned fundamentally on issues of credibility and involved an elderly woman who was herself a victim of abuse. The events in question had taken place almost 50 years earlier and the frailties of age had caught up with her. She did not have the capacity, or the ability, to defend herself at trial.

[159] With respect to my colleague and the trial judge, I do not accept that the operative moment for the purposes of laches in these circumstances is when the action was commenced (the appellant was competent at that time). Nor do I take the existence of her memoir or the fact that she was able to be examined for discovery prior to trial to be particularly determinative of this issue. In circumstances such as these, the colour and texture of aids such as these depend very much on what the witness says about them at trial -- and how the witness says it.

[160] It is the effect of the delay that is critical. The appellant was elderly when the action was commenced. Indeed, the respondent had cared for her during a period of serious illness in the 1990s when she almost died. The fact that she might become incapacitated at any time was reasonably foreseeable. The effect of the delay is that she was incapacitated by the time of trial and the trial judge did not have the benefit of seeing her and listening to her testimony in relation to these issues. While no one can overlook -- and I do not wish to minimize for an instant -- the appalling abuse to which the respondent was subjected, it was in my view manifestly unfair to impose liability for that abuse on the non-committing parent who was incapable of defending herself and telling her story at the only time it counted in a case such as this: the trial. It was the respondent's delay in bringing her action that permitted this unjust situation to arise.

[161] This view is consistent with the summary of the principles relating to laches cited by Justice La Forest in the passage immediately preceding the one outlined above from M. (K.) v. M. (H.), at p. 77 S.C.R.:

The rule developed in [Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221] is certainly amorphous, perhaps admirably so. However, some structure can be derived from the cases. A good discussion of the rule and of laches in general is found in Meagher, Gummow and Lehane, supra, at pp. 755-65, where the authors distill the doctrine in this manner, at p. 755:

It is a defence which requires that a defendant can successfully resist an equitable (although not a legal) claim made against him if he can demonstrate that the plaintiff, by delaying the institution or prosecution of his case, has either (a) acquiesced in the defendant's conduct or (b) caused the defendant to alter his position in reasonable reliance on [page521] the plaintiff's acceptance of the status quo, or otherwise permitted a situation to arise which it would be unjust to disturb . . . (Emphasis added)

[162] Relying on statements contained in M. (K.) v. M. (H.) to the effect that the rigorous application of limitation periods is inapt in incest cases, [^8] my colleague concludes that "the applicable jurisprudence and the policy considerations that underlie it tell strongly against a rigorous application of the doctrine of laches in an incest case, whether claims are advanced against the abusive or the 'bystander' parent". I would prefer to leave for another day consideration of whether the same "rigorous" ethic that the courts have applied to limitation period defences in sexual assault and incest cases as between the victim and the direct perpetrator of the abuse should be extended to parties that are arguably more remote participants. For myself, I do not see the doctrine of laches as being the subject of either a "rigorous" or "non-rigorous" application. Laches is an equitable doctrine designed to be applied flexibly on the facts of each case to ensure, ultimately, that the case is "resolved as a matter of justice as between the parties".

[163] My reluctance on this issue is driven partly by the fact that much is unknown about the relatively new concept of imposing liability for abuse on the parent -- usually the mother -- who did not perpetrate the abuse directly. This is particularly so in the context of historical incest or sexual abuse committed in a different social era, as is the case here. Elizabeth K.P. Grace and Susan M. Vella highlight some of these concerns in their article "Vesting Mothers with Power They Do Not Have: The Non-Offending Parent in Civil Sexual Assault Cases: J. (L.A.) v. J. (H.) and J. (J.)" (1994) 7 C.J.W.L. 184-96. The following comments at 186-87 are instructive:

Non-offending mothers' role in and accountability for sexual abuse perpetrated against children by father figures raises many difficult and intractable questions. For instance, given the comparatively greater power that mothers as adults have vis-à-vis their children, under what circumstances should legal responsibility be pinned on individual mothers for failing to protect their children form sexual violence? Is it appropriate to use the civil courts to vindicate a survivor's feelings of anger and betrayal against her mother and to reduce her self-blame when the mother is essentially being blamed for her powerlessness? The propriety of imposing liability on mothers must be considered in light of the gender inequality that permeates our social, economic, and political structures (including families), as well as the lack of [page522] publicly-funded shelters and treatment facilities for victims of sexual and physical abuse. Before more dangerous precedents like J. (L.A.) are s et, there needs to be a process of debate and reflections, both within the broader feminist movement and among lawyers doing plaintiff-side sexual assault work, about the degree to which non-offending mothers should be made responsible in law for the sexual abuse suffered by their children at the hands of father figures.

It may be too late and, indeed, undesirable to turn back the clock on recent advances in the law pertaining to sexual assault that have imposed private law duties of care and fiduciary obligations on persons and institutions in positions of power and trust. However, there is a sad, if predictable, irony to these developments being used against one of the weakest links in the chain of child sexual abuse -- namely non-offending mothers. Unquestionably, mothers owe both a duty of care and a fiduciary duty to their children. The issue to be considered is whether, so long as they are denied viable choices and the power to prevent the abuse, mothers should be held to have breached their legal obligations. Otherwise, an enormous gulf will continue to develop between a system of legal regulation that imposes partial, privatized solutions by vesting individual, non- offending mothers with power they probably did not have, and a society that refuses to provide the means by which real choices can be ex ercised. (Emphasis added)

[164] The concerns expressed by Grace and Vella resonate in the context of the debate about the application of the doctrine of laches here, in my view. Their comments are directed at the problem of using modern-day standards to inform a duty that existed in a different social era. These concerns evoke even more caution -- and even more concern about laches in circumstances such as this -- in the present context, in my view. We are dealing with family incest occurring almost half a century before the trial, in a societal era with quite different perspectives and coping mechanisms respecting such abuse than the era in which the case was tried. We are dealing, as well, with a family itself coming from an abusive post-World War II prison camp experience.

[165] As previously noted, the trial judge acknowledged the argument of appellant's counsel at trial that it was the cumulative impact of her husband's dominance within the family, the trauma she experienced in the prison camp and the prevailing societal mores of the 1950s that led to the appellant's powerlessness to intervene. In the absence of the appellant's participation at the trial, however, the trial judge appears not to have assessed these matters in the context of the laches debate. Moreover, as noted above in the section of these reasons dealing with the burden of proof, the trial judge misapprehended the respondent's testimony on a key point going to the appellant's ability to intervene -- concluding erroneously that the respondent's evidence was that her mother was "unafraid" of her father. The testimony of her siblings [page523] was to the contrary. The absence of the appellant's testimony at trial to provide the trial judge with some direct insight into this central issue only highlights t he unfairness resulting from the delay between the underlying events and the trial.

[166] Here, I recall again the need for "clear and cogent" evidence, and for "careful scrutiny" of that evidence, in cases of this nature. There is particular meaning to this in the laches context where -- as here -- a party is incompetent and cannot participate or testify at trial. The trial judge is deprived of the opportunity to weigh the evidence of that party in determining whether the burden of proof has been met. Although the proceedings can lead to a high stigma finding of liability and the evidence thus requires a high level of scrutiny, some of the most important evidence -- the testimony of the appellant herself -- was not available at trial and was therefore subjected to a much lower level of scrutiny.

[167] Some reliance is placed on the fact that the appellant was able to testify at her examination for discovery and that over the course of that examination, and in her memoir, she portrayed herself as an independent woman able to stand up to her husband. Justice Cronk outlines some of this evidence at paras. 107-109 of her reasons. I do not doubt that parts of the memoir and the discovery evidence could be interpreted in that fashion. However, to the extent that this part of the record was referred to by the trial judge, as I have earlier observed, he appears to have discounted it as "bravado" on the part of the appellant. Whether the trial judge's reaction -- had he been able to hear and see a competent appellant give evidence at trial -- would have been to interpret the bravado as even greater bravado or to interpret it as something else is something we cannot know. Therein lies the unfairness in forcing the appellant to undergo a trial in which she could not defend herself in the most important of ways -- by testifying -- and in finding her legally responsible in such circumstances.

[168] At paras. 77-78 of her reasons, Justice Cronk states:

Consequently, while K.W.G's mental disorder is most unfortunate, there is no basis on this record to visit the consequences of her illness on K.K., or to conclude that the timing of the commencement of her lawsuit or its pace after commencement was influenced by her mother's health. K.W.G. simply succumbed to an unforeseen mental illness -- dementia -- after the commencement of K.K.'s lawsuit.

This factor must be balanced against K.K.'s rights. To hold that K.W.G's unexpected illness bars any equitable relief for K.K would be to deny all redress for an admitted incest victim on account of an unforeseen development that was entirely beyond her control. That outcome would scarcely serve the interests of justice. [page524]

[169] In this respect I simply see the case differently than my colleague. While I do not suggest that either the commencement or the pace of the lawsuit by the respondent were influenced by the appellant's health, dementia in a person approaching or in her 80s is hardly uncommon or unforeseeable and it is not a situation that was "entirely beyond the [respondent's] control". She could have -- and should have -- started her action sooner. The trial judge found [at para. 49] that it was during the discussion about the grandmother incident in 1993 "that the plaintiff came to know for certain that her mother was aware of the abuse but was not prepared to intervene". The respondent could have started her action at least by then. But she did not. Instead, she waited seven years, a period during which she knew -- because she had cared for her mother at a time when she almost died -- that the appellant's health was failing. In so doing she permitted a situation to arise where, "as a matter of justice as between the parties", it was unjust to make adverse findings against her and to impose liability.

Disposition

[170] For the foregoing reasons, then, I would allow the appeal, set aside the judgment below and substitute a judgment dismissing the action. I would award the appellant her costs of the appeal on a partial indemnity basis.

Appeal allowed in part; cross-appeal dismissed.

Notes

[^1]: In the trial judge's reasons, K.W.G.'s daughters are identified by the initials of their maiden names. In these reasons, they are referred to by the initials used in K.W.G.'s factum on appeal.

[^2]: See also the minority judgment of McLachlin J., as she then was, in Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226, [1992] S.C.J. No. 60, additional reasons at 1992 66 (SCC), [1992] 2 S.C.R. 318, [1992] S.C.J. No. 109.

[^3]: In her factum on appeal, K.W.G. also invoked the second branch of the doctrine of laches by arguing that the trial judge erred by failing to consider whether the circumstances of this case rendered the prosecution of K.K.'s action unreasonable. This ground of appeal was abandoned during oral argument of the appeal.

[^4]: This rule holds that a cause of action arises for the purpose of a limitation period when the material facts on which it is based have been or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. See M. (K.), at pp. 33-34 S.C.R.

[^5]: See also the companion decisions of the Supreme Court of Canada in E.D.G. v. Hammer, 2003 SCC 52, [2003] 2 S.C.R. 459, [2003] S.C.J. No. 52 and M.B. v. British Columbia, 2003 SCC 53, [2003] 2 S.C.R. 477, [2003] S.C.J. No. 53.

[^6]: I find additional support for a relaxed application of laches in the incest context in the contemporary legislative approach to limitation periods and sexual assault. In Ontario, the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B recongnizes that, in the caseof sexual assault, the passage of considerable time may be required before the claimant both appreciates the assault and its effects and is sufficiently empowered to advance a legal claim. Under the Act, the standard two-year limitation period does not run in respect of a claim based on sexual assault during any time in which the claimant is incapable of commencing the proceeding (s. 10(1)). Instead, a sexual assault claimant is presumed to be incapable of commencing litigation before his or her action is actually initiated, unless this presumption is reburred by evidence of an earlier capability to sue (s. 10(3)).

[^7]: In contrast to the facts in M. (K.), there is no suggestion here that K.K.'s realization of her rights presumptively materialized upon the commencement of therapy. While K.K. began counselling for sexual abuse in October 2000, she acknowledged at trial that she had consulted a lawyer and decided to sue K.W.G. sometime in the summer of 2000.

[^8]: Buttressed by the presumption in Ontario's current limitation legislation that victims of assault and sexual assault are incapable of commencing litigation sooner than they do.