ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-438935
DATE: 20121003
B E T W E E N:
CORRINE MILNE, TERESA DRIJBER and catherine elizabeth betts
Plaintiffs
- and -
EDWARD BETTS
Defendant
Gillian T. Hnatiw, for the Plaintiffs
No-one appearing for the Defendant
HEARD: September 18, 2012
STEVENSON J.
REASONS FOR DECISION
INTRODUCTION
[1] The two main plaintiffs, Corrine Milne ("Corrine") and Teresa Drijber ("Teresa") who are cousins, seek judgment against the defendant, Edward Betts, their paternal uncle, ("Ted") for damages for sexual assault, battery, intentional infliction of mental suffering, false imprisonment, and breach of fiduciary duty. The other Plaintiff, Catherine Elizabeth Betts ("Catherine"), is the mother of Corrine and is making a claim under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 for loss of care, guidance, and companionship, value of services provided, income loss, and out-of-pocket expenses.
[2] The assaults occurred when Corrine and Teresa were young children; Corrine was 6 years old and Teresa was between the ages of 11 and 13.
[3] The defendant has been noted in default and is deemed to admit the allegations made by Corrine and Teresa in the Statement of Claim. Both Corrine and Teresa gave evidence in this undefended trial and expert reports by Dr. Julie Hill, Ph.D., C.Psych., along with Dr. Hill's Affidavit and curriculum vitae, were filed with the court.
CORRINE'S EVIDENCE
The Abuse
[4] Corrine is now 57 years of age. She grew up in Galt, Ontario (which is now Cambridge) and resided with her mother, father, and four older siblings. Her father had two sisters and four brothers, one of whom is the defendant Ted. Given the large extended family, Corrine enjoyed many family gatherings during her childhood at her grandparents' home, at the beach, and, at times, at a cottage.
[5] Ted resided in his parents' home along with his brother Ivan. Ted never married and continues to reside in the same home which was once owned by his parents.
[6] Corrine would visit at her grandparents' home two to three times per month. Often on these occasions, her uncle Ted was present. On many occasions, her uncle Ted and her uncle Ivan would take her swimming, bowling, or to a cottage, which made her feel special. As she was the youngest child, her siblings did not often want to take her with them when they went on an outing.
[7] Often when Corrine went swimming with her uncle Ted, he would assist her with changing in or out of her bathing suit and he would touch her in the genital area. This made Corrine feel uncomfortable, but at the time she was uncertain whether the touching was intentional. This became frequent enough that Corrine asked her mother if she could wear her bathing suit under her shorts so she did not have to change in front of her uncle Ted. She also recalled that her uncle Ted would frequently dry her with a towel between her legs after she went swimming.
[8] On one particular occasion, while visiting her grandparents' home for an overnight visit, her uncle Ted asked her to snuggle on the couch with him. He purposely placed Corrine so that her head was at his chest level and her backside was in front of his genitals. She indicated that throughout the evening she could feel something between her buttocks. She did not realize until she was older that her uncle Ted had an erection.
[9] On another evening, her grandparents went out and left her alone with her uncle Ted. She was approximately 6 years old at the time. Her uncle Ted indicated to her that if she was a good girl she could stay up later. She recalled how they watched a movie together which was a Bing Crosby and Bob Hope movie where the girls were “wearing harem costumes.” As before, her uncle Ted had her sit in the same position on the couch with her backside in front of his genitals.
[10] During the course of the movie, she could feel the same sensation of something behind her which she did not understand. As mentioned above, she now realizes that this was her uncle Ted with an erection. When the movie was over, she recalled having a snack. Her uncle Ted then advised her that it was time for a bath. She indicated to him that she could have a bath by herself as she was "a big girl now". She was very uncomfortable, as her uncle Ted insisted on staying in the bathroom while she had a bath. She was so uncomfortable that she pulled her legs up and put a face cloth on her chest.
[11] Her uncle Ted remained in the bathroom. He brushed his teeth, and looked at her in the mirror. Corrine had left her pyjamas on the toilet seat and she watched her uncle intentionally pick up her pyjamas and put them in the water. Corrine was adamant that the placing of the pyjamas in the water by her uncle Ted was intentional, despite his claims at the time that this was an accident.
[12] Her uncle Ted held a towel out and she grabbed the towel. She then proceeded to go down the hall to the spare bedroom where she often slept when visiting her grandparents' home for an overnight stay. Her uncle proceeded to follow her down the hall. He then grabbed the towel from her and started drying her. Her uncle had her lie on the bed and he kept his hand on her while he grabbed a jar of Vaseline. He proceeded to rub the Vaseline on her genitals and inside of her vagina, claiming that she was all "red down there" and this would make her feel better. Despite Corrine's protestations that she was "not a baby", the assault continued.
[13] After this incident, she proceeded to put her clothes on. At that point, her uncle Ted protested, indicating that Corrine's mother would be upset with him if Corrine were to sleep in her clothes. He then advised Corrine that she would sleep with him and he would keep her warm. She was exhausted and quickly fell asleep. She woke up, however, when her uncle Ted pulled her off her pillow. She indicated that he was hovering above her and trying not to put any weight on her, but she now realizes that he was trying to have intercourse with her. He kept “jabbing and jabbing” her with his penis. He then proceeded to put her back on his front and rubbed her up and down on top of him repeatedly until he ejaculated. In the morning, Corrine awoke alone with her clothes beside her which were not there the evening before.
[14] On that same morning, she spoke to her grandmother in the kitchen. She indicated to her grandmother that her uncle had been "poking me with a stick" all night and she did not get any sleep. Her grandmother replied that Corrine had just had a bad dream and was mistaken, as her uncle Ted had gone to assist his parents with car trouble at three o'clock in the morning.
[15] She asked for her father to come and get her. When she went home, she told her mother of the incident with her uncle Ted. Her mother picked her up, rocked her, and provided comfort to her. The following morning, her mother took her to the doctor for a physical examination. Her mother had found blood on Corrine's underwear and the doctor indicated that she was bruised.
[16] After this incident, the assault on her by her uncle Ted was never spoken of again. However, the damage to Corrine was permanent.
After the Abuse
[17] After the assaults, to Corrine "people looked the same, but everything was different". She "wanted to find a secret door or passage back to where it used to be".
[18] She did not know if anyone knew of the incidents and abuse by her uncle Ted. She never went anywhere with her uncle Ted again, but her relationship with her father would never be the same. She wondered whether her father knew of the incidents as he never again touched her, hugged her, or tucked her in bed, like he used to do on many occasions.
[19] Corrine felt that she had done something wrong. In order to correct that wrong, she attended church every day, except Saturday, from grades 1 to 8 in the hopes that if she went to Mass regularly "God would love me more."
[20] She was never left alone with her uncle Ted again, but no one said anything about the incident. She felt that she was not as good as everyone else; that she was "damaged goods", and she tried desperately to be a "people pleaser". If someone did not like her as a child, she thought that they knew about the assaults.
[21] When Corrine was approximately 8 years-old, her family had an outing at the beach which included a get together at her parents' home where her uncle Ted was present. At one point, she was standing at the back of a motor vehicle beside her uncle Ted. Her uncle Ted looked her in the eye and intentionally slammed the trunk door on her fingers. Her mother immediately grabbed her and put ice on her fingers. Her uncle Ted indicated that this was an accident, but Corrine said that her uncle Ted had the same look as he had when he put her pyjamas in the water and that this was clearly intentional.
[22] Corrine had no difficulties in school and in fact, she was able to skip a couple of grades. She indicated that her father always thought that she would go to university and that she felt that she disappointed him by not attending university. She did not attend university as she would have to be in another city and she did not want to be alone.
[23] Throughout her life, she has always found a way to portray herself in a confident manner. This was exhausting, and even today she continues to act this way and others would say that she is confident, which is in fact untrue.
[24] She has never had a best friend as she will not let anyone get close to her. She did not want anyone to know about the sexual abuse which she suffered. Every single day something reminds her of the sexual abuse she suffered. Certain smells of soap tend to incapacitate her and it is a struggle for her to find ways to cope during the day.
[25] It is harder for her to be around a lot of people and she continues to find it difficult to pretend to be someone she is not. She has always been driven to succeed at work in order to gain promotions so that she would obtain her own private office and would not have to converse with others all the time. In order to cope throughout the day, she will often count inside her head, whereby she picks a certain number and repeats it in order to keep other thoughts out of her head. When she is home, she cleans excessively in order to keep herself preoccupied and these thoughts of the abuse hidden.
[26] These assaults have greatly affected any relationship she has had, including friendships, or romantic or sexual relationships. She frequently needs to be alone and she can never relax. She prefers to be alone so that she "does not have to pretend". She indicated that her five children are used to her need to be alone but she feels she has "stolen lots of hours from them".
[27] Corrine does not trust anyone. When she was raising her children, she never left them alone with aunts or uncles until they were older. She did not even trust the children's father to be alone with them when they were younger.
[28] With respect to her romantic relationships, if anything during moments of intimacy reminds her of the sexual abuse which she suffered, she cannot proceed. This has greatly affected her sexual relationships.
[29] From the age of 9, Corrine has had difficulty sleeping and suffered from severe migraines. The most sleep she gets is 3 to 4 hours per night, but she is only able to sleep consecutively for about two hours.
[30] She is afraid that she will not be able to stop pretending that she is someone else and that this takes a lot of energy. She feels like she is "an actor every day".
[31] Corrine thought that her uncle Ted would participate in this litigation. If he did she would be searching for some kind of sorrow or remorse in his eyes but she does not really want to see him.
The Recent Disclosure
[32] In February 2011, she was in a very serious motor vehicle accident where she felt like she was going to die. As a result of this serious accident, she was concerned that she would have died and no one would have known what her uncle Ted did to her. It was at this point that Corrine went looking for a lawyer to pursue this litigation.
[33] Her mother recently told her brothers of the assaults, and she was afraid as her brothers wanted to confront their uncle Ted. She is extremely concerned now as her siblings are angry given they feel that their father should have done something to prevent the abuse which was further inflicted upon their cousin Teresa.
[34] Her mother and father both treated her as though she was special growing up, but as she became older she wondered whether this treatment was really due to the guilt they were feeling. Corrine only recently learned of the assaults inflicted upon her cousin Teresa by her uncle Ted. Teresa had also kept the assaults hidden for decades. She has not discussed any details with Teresa and she has only discussed details with her lawyer and psychologist, Dr. Julie Hill. She believes that there was approximately 10 years between the assaults suffered by her and those suffered by her cousin Teresa. She is greatly troubled and wonders whether any other incidents happened to others.
[35] Corrine told her husband about the incidents, but provided no details. It took her six years before she was able to tell her husband about the assaults. She was only able to explain the assaults to her husband in the most simplistic manner.
[36] It is becoming more difficult to want to leave her home. She is looking forward to becoming a grandmother and she wants to ensure that she is not afraid to leave her home. She never wanted to be perceived as being weak, but she realizes now that she needs help.
TERESA'S EVIDENCE
The Abuse
[37] Teresa is now 53 years of age. She grew up in Cambridge and Guelph, Ontario. Her parents separated shortly before her 11th birthday. After the separation, she initially resided with her father in Cambridge along with her three siblings. She went to live with her mother in Guelph in grade 8.
[38] Most of her extended family resided in Cambridge and she recalls spending Sundays after church at her grandparents' home and staying overnight at her grandparents' home. After Teresa's parents separated, she was extremely upset with her mother and did not have regular contact with her mother for one and one-half years. Her siblings would visit with their mother every other weekend and Teresa would stay with her father. If her father had a matter that he had to attend to on the weekend, he would often leave Teresa in the care of his parents. Teresa's uncle Ted continued to reside with Teresa's grandparents and he would often be present for Teresa's visits, including her overnight visits.
[39] Her uncle Ted and her uncle Ivan were known as the "fun uncles" and they would often take the nieces and nephews boating or waterskiing when they rented a cottage. Teresa recalls that she was never alone with her uncle Ted on these occasions as there were usually five to six other cousins present.
[40] On a number of Saturday nights, she would visit with her grandparents and nothing unusual would happen. However, when she stayed overnight at her grandparents' home, she began to be sexually assaulted by her uncle Ted.
[41] When she slept over at her grandparents' home, she slept on the daybed in the dining room. During the night, her uncle Ted would come into the room, take her hand and put it on his penis, and rub it up and down until he ejaculated. Teresa testified that she was scared, as it was dark, and she was only 11 years old. Her uncle Ted would repeatedly tell her "Shhh", and the assault would continue.
[42] As the weekends passed, the assaults became more invasive. The assaults continued over a one and one-half year period until close to her 13th birthday. The assaults would commence with her uncle Ted fondling her breasts and genital areas, and he would later have Teresa fondle his genitals. His assaults became more and more aggressive, as he digitally penetrated her vagina and anus on a number of occasions over a prolonged period of time. The assaults progressed to oral sex. The assaults always took place in the middle of the night and in the dark when everyone else was sleeping. Teresa was too frightened to say anything to anyone.
[43] On one occasion, her uncle insisted that she have a bath and that he bathe her, despite the fact that Teresa was at an age where she could bathe herself. Her uncle Ted used soap on her genital area and digitally penetrated her vagina and anus. Teresa recalls that this was the first time that an assault had not taken place in the dark and in the middle of the night. When she got out of the bath, her uncle took the towel from her and roughly dried her between her legs. Given the roughness of the drying, she took this as a warning not to resist him.
[44] Teresa continued to stay silent about these assaults, as she was not seeing her mother and her father was preoccupied with taking care of the family and working. Her parents were also embroiled in a custody dispute.
[45] Teresa suffered a prolonged period of assault on a trip with her uncle Ted to the Buffalo Zoo. On an earlier weekend, her uncles had taken a number of her nieces and nephews to a cottage and Teresa had been unable to go. Her uncle Ted offered to take her to the Buffalo Zoo by himself to make up for Teresa missing the cottage visit. Teresa's father could not understand why she did not want to go. As she was afraid to tell her father of the abuse, she reluctantly went on the trip alone with her uncle Ted.
[46] On the way to Buffalo, she sat beside her uncle Ted on the bench seat in his truck. Throughout the journey, he fondled her genitals and digitally penetrated her for most of the drive. On the drive home, he left the highway, stopped, and produced a blanket. He instructed Teresa to lie down and take off her shorts and underwear. He proceeded to sexually assault her, fondling and digitally penetrating her, which Teresa recalls was hurtful and painful. He had Teresa perform oral sex on him and then he drove home.
[47] The only reason these assaults stopped was because Teresa moved to Guelph in grade 8 to live with her mother.
After the Abuse
[48] Teresa remained quite fearful of men and strangers. On one occasion prior to moving in with her mother, she had gone for a visit with her mother to meet her mother's new common-law spouse. Given her fear of men, she became so fearful of meeting her mother's new partner that her mother had to drive her to her father's home in Cambridge.
[49] Her visits to her grandparents' home after her move to Guelph were infrequent. She was never alone with her uncle Ted after the move to Guelph but she continued to be fearful of men and strangers.
[50] Teresa's relationships with her male cousins were strained, as she remained fearful of males and most of her male cousins were older than her. She was not comfortable hugging them, as she was concerned that if she was too friendly they would be “too friendly” in return. As a result, her relationship with her extended family members dwindled.
[51] Teresa indicated that she developed stomach issues and has always suffered from a "nervous stomach" from a young age. She has suffered from ulcers, including a perforated ulcer which required hospitalization. She is not a good sleeper and any slight movement wakes her. She also has to use earplugs. After recently disclosing the sexual assaults by her uncle Ted to her family doctor, she has been prescribed sleep medication. She is comforted somewhat in knowing that her doctor feels that some of her medical issues make sense now, given she has disclosed the abuse to her doctor.
[52] She has had ongoing bowel problems that commenced during her teenage years and required some surgery. She has always been a very anxious person who is unable to relax. She holds her body very tightly to the point where she is so sore at times she cannot move. She has required regular chiropractic treatment along with massage therapy in order to help her relax. She has required treatment for ongoing stomach issues. Teresa also has had ongoing dental issues as she clenches her teeth so hard she now requires a mouthguard. In the past, she required a root canal because of a tooth that cracked from the tension.
[53] To cope with anxiety and stress she keeps herself busy in the hopes that she will experience fewer flashbacks. She has always tried to be the best in her employment, in Sea Cadets during her teen years, and in her daily endeavours. She always felt different and that she was not good enough. However, it was important to her to prove that she was not a victim, to rise above these assaults and not to let the assaults define who she was.
[54] At the time of the assaults, Teresa’s sister was only 7 years of age. She became overprotective of her sister and would never allow her sister to be left alone at her grandparents' home. When she went to live with her mother, she insisted that her sister accompany her. She wanted to ensure that her sister was safe which was perceived by her sister as Teresa being “bossy”.
[55] With respect to her own two children, she was highly vigilant in making sure that they were aware of who could be a pedophile and she encouraged them to talk openly with her. She wanted to ensure that they had a heightened awareness of abuse issues.
[56] She is a “control” person in her actions and movements, and always ran her home like an "army camp", as everything had to be structured and organized so she would feel safe. Her dress has always been conservative and her mother and sister used to tease her about her clothing. She dressed this way because she did not want to draw attention to herself as she did not want her appearance to bring on any danger.
[57] These assaults by her uncle Ted have greatly impacted her romantic relationships. It has caused stress in her two marriages and most likely was a large contributing factor to the breakdown of her first marriage. During periods of intimacy, there are certain acts or movements that remind her of the sexual abuse which she suffered from her uncle Ted. She reports that her head cannot be touched and she cannot feel confined. During moments of intimacy, she needs to be in complete control of her body and certain actions or flashbacks trigger panic to the point where she cannot breathe. On these occasions of panic, she has had to push her partner away and run out of room.
The Disclosure
[58] Even though these events occurred approximately 40 years ago, Teresa has only recently told others. Her disclosure arose after she was questioned by her mother as to whether anything had happened with her uncle Ted. Her mother did not know of the abuse and Teresa was only able to talk about it as a result of learning of the abuse suffered by her cousin Corrine.
[59] She has now had to struggle with the recently-acquired knowledge that adults had concerns about uncle Ted years before she was abused, but no one did anything. She feels that if those adults had acted differently, the sexual abuse and battery would not have happened to her, although she understands that it was a different time and that people reacted differently to these sorts of matters. However, given the fact that Corrine suffered this abuse and had told adults about it, it is likely that she would not have suffered this abuse had the adults confronted her uncle Ted.
[60] Teresa has also had to struggle with the fact that when she recently told her father and mother of the abuse, their reactions were less than satisfactory. Her mother stated that it was not her fault and that her father should have done more, whereas her father's only response was "Oh, that isn't good". She testified that she found it extremely difficult to tell her siblings and she did not want to lay blame.
[61] She told her ex-husband and current husband of the abuse but she did not want either of them to know the details, as they would look at her differently and it would make intimacy harder. During the trial, both Corrine and Teresa requested that their husbands not be present during their testimony.
[62] Teresa started counselling last November and she now sees a social worker once a month. She still prefers to keep the incidents private but is interested in continuing the counselling. She is adamant that she does not want to be viewed as a victim and struggles with this on a daily basis.
DR. JULIE HILL’S EVIDENCE
Her Expertise
[63] Dr. Julie Hill is a Registered Psychologist who has practised psychology for 25 years. She has a specialty in the assessment and treatment of individuals who have been injured, disabled, or traumatized. Based on the curriculum vitae of Dr. Hill and the extensive experience she has in dealing with those who have suffered from the psychological harms and effects of sexual abuse, she is highly qualified to provide an opinion as to what psychological harms and effects, if any, Corrine and Teresa suffer or have suffered as a result of the sexual abuse they endured as children at the hands of their paternal uncle.
[64] Dr. Hill prepared two very detailed, extensive expert reports ‑ one providing an opinion on what psychological harms and effects, if any, Corrine suffers or has suffered as a result of the sexual abuse she endured at the hands of her uncle Ted and the other also providing an opinion on what psychological harms and effects, if any, Teresa suffers or has suffered as a result of the sexual abuse she endured at the hands of her uncle Ted. These reports are of great assistance to the Court.
Regarding Corrine
[65] Dr. Hill's meetings with Corrine corroborate the evidence and incidents of sexual abuse to which Corrine testified at trial. Dr. Hill's opinion, on page 2 of her report, is that Corrine is "experiencing moderate ongoing psychological consequences as a direct result of the sexual abuse incidents that occurred approximately 50 years ago".
[66] Dr. Hill also completed a number of psychological tests. These were comprised of the Rehabilitation Survey of Problems and Coping, the Beck Depression Inventory, the Beck Anxiety Inventory, and the Davidson Trauma Scale.
[67] On the Survey of Problems, Dr. Hill reports, at pages 14 and 15 of her report:
[Corrine] endorses significant difficulties with depression and sadness, self confidence, nightmares, headaches, and upsetting memories, as well as with nervousness or worry, and muscle tension. She endorses moderate difficulties with sexual activity, fatigue or low energy, helpless feelings, and embarrassment with her appearance, as well as with sleep, and balance.
[68] On the Beck Depression Inventory and the Beck Anxiety Inventory, Dr. Hill states, on page 15 of her report, that Corrine's symptoms place her experience of depression and anxiety in the moderate range. With respect to the Davidson Trauma Scale, Dr. Hill states:
Ms. Milne's endorsements suggest the significant probability of the presence of Post-Traumatic Stress Disorder. Ms. Milne endorses frequent symptoms of intrusion or re-experiencing the event, including painful images, memories, or thoughts of the event, distressing dreams of the event, flashbacks of the event, and both physical and emotional upset by reminders of the event. She endorses frequent to daily symptoms of avoidance, including an avoidance of thoughts, feelings, situations, or activities that are reminders of the event. She endorses daily symptoms of a numbing of general responsiveness, including reduced enjoyment, feelings of social distance, and emotional numbing. Finally, she endorses frequent to daily symptoms of increased arousal, including sleep difficulties, irritability, and feeling edgy, distracted, guarded, jumpy, or easily startled. Moreover, she endorses experiencing these symptoms as at least moderately to markedly distressing.
[69] Dr. Hill opines, at page 15 of her report:
An interpretation of the information provided across all clinical indices, including Ms. Milne's self-report, her personal presentation, clinical observations, the results of psychological tests, and a review of the available file documentation, integrates consistently in producing a clinical picture which clearly indicates that, as a direct result of the subject sexual assault incidents of approximately 50 years ago, when aged 5 to 7, Ms. Milne developed psychological consequences, and continues to experience these emotional repercussions, which negatively affect her functional abilities. Moreover, she displays a typical incident related pattern of psychological consequences as is commonly observed following sexual abuse incidents.
[70] Dr. Hill also states that a number of the difficulties which Corrine currently experiences are post-traumatic stress symptoms and depression which often accompany Post-Traumatic Stress Disorder. Dr. Hill also concludes, on page 21 of her report: "[u]nfortunately, the prognosis is poor for resolution of post-traumatic stress and Dysthymic Disorders, due both to the entrenchment as a young child, interfering with her development of psychological resources, and to the entrenchment which has now injured lifelong, rendering chronicity."
[71] Dr. Hill states that Corrine would benefit from psychological counselling, provided by a registered psychologist who is experienced and knowledgeable in historic sexual assault. Dr. Hill recommends intensive intervention and that Corrine participate in weekly to biweekly sessions for up to two years and thereafter, depending on the treating psychologist's evaluation. She recommends that Corrine be provided with a reserve of up to 12 sessions per year. She states, on page 22 of her report, that this yearly reserve may be required for another 10 to 15 years or more "intensely in acute situationally reactive episodes, or more evenly distributed for ongoing support of chronic symptoms".
[72] Dr. Hill also recommends additional psychological sessions for couple or family counselling, and that Corrine would benefit from additional medical management and specialist consultation with respect to her migraines.
Regarding Teresa
[73] Dr. Hill's meetings with Teresa corroborate the evidence and incidents of sexual abuse to which Teresa testified at trial. Dr. Hill's opinion, on page 3 of her report, is that Teresa is "experiencing chronic moderate ongoing psychological consequences as a direct result of the abuse incidents, repercussions consistent with a history of early sexual abuse".
[74] Dr. Hill completed a number of psychological tests with Teresa. These were comprised of the Survey of Problems and Coping, the Beck Depression Inventory, the Beck Anxiety Inventory, and the Davidson Trauma Scale.
[75] On the Survey of Problems and Coping, on page 19 of her report, Dr. Hill states:
[Teresa] endorses moderate difficulties with upsetting memories, muscle tension, and sleep, and mild to moderate difficulties with concentration, self-confidence, sexual activity, nightmares, pain, episodic depression, headaches, irritability, low energy, helpless feelings, and embarrassment with her appearance. She also endorses mild difficulties with nervousness, worry, and decision-making. Ms. Drijber endorses only poor coping with her perceived difficulties with irritability, and only fair, still less than satisfactory coping with her perceived difficulties with upsetting memories, muscle tension, and low energy.
[76] On the Beck Depression Inventory and the Beck Anxiety Inventory, Dr. Hill states that Teresa's symptoms place her experience of depression in the mild range and anxiety in the moderate range. With respect to the Davidson Trauma Scale, Dr. Hill states, on page 20 of her report:
Ms. Drijber's endorsements suggest the significant probability of the presence of Post-Traumatic Stress Disorder. She endorses frequent symptoms of intrusion or re-experiencing the events, including painful images, memories, or thoughts of the events, distressing dreams of the events, and emotional and physical upset by reminders of the event. She endorses daily symptoms of avoidance, including an avoidance of thoughts, feelings, situations, or activities that are reminders of the events. She endorses frequent to daily symptoms of a numbing of general responsiveness, including reduced enjoyment and feelings of social distance. Finally, she endorses frequent symptoms of hyper-arousal, including sleep difficulties, irritability, concentration difficulties, and feeling edgy, distracted, guarded, jumpy, or easily startled. Moreover, she experiences the symptoms as moderately to markedly distressing.
[77] Dr. Hill opines, at page 20 of her report:
An interpretation of the information provided across all clinical indices, including Ms. Drijber's self-report, her personal presentation, clinical observations, the results of psychological tests, and a review of the available file documentation, integrates consistently in producing a clinical picture which clearly indicates that, as a direct result of the subject sexual assault incidents of 40 years ago, at age 11 to 12, Ms. Drijber developed psychological consequences, and continues to experience these emotional repercussions. Moreover, she displays a typical sexual-abuse related pattern of psychological consequences as is commonly associated with sexual abuse incidents.
[78] Dr. Hill also states that a number of the difficulties that Teresa is experiencing are post-traumatic stress disorder symptoms and moderate anxiety and mild depression. Dr. Hill also concludes, on page 28 of her report:
Unfortunately, the prognosis for resolution of symptoms is poor. Those symptoms of Post-Traumatic Stress Disorder which have not resolved in the initial years post-incidents are unlikely to improve. Now, 40 years later, they have become well established and entrenched, with an unfavorable prognosis for resolution. Similarly, the prognosis for improvement in symptoms is also unfortunately unfavorable: likely poor, the prognosis for improvement may be guarded at best.
[79] Dr. Hill states that Teresa would benefit from psychological counselling, provided by a Registered Psychologist who is experienced and knowledgeable in Post-Traumatic Stress Disorder, especially as associated with childhood sexual assaults. Dr. Hill recommends that Teresa participate in weekly to biweekly sessions for up to two years, with a decreased frequency of monthly to bimonthly thereafter, pursuant to the treating psychologist's evaluation. She recommends that Teresa be provided with a reserve of up to 12 sessions per year. She states, on page 29 of her report, that this yearly reserve may be required for another 10 to 15 years or more "intensely in acute situationally reactive episodes, or more evenly distributed for ongoing support of chronic symptoms".
[80] Dr. Hill also recommends, on page 29 of her report, additional psychological sessions for couple or family counselling, and that "from a psychological perspective… Ms. Drijber be supported for her massage therapy and other physical modalities to address the physical manifestations of her Anxiety Disorder, which will be complementary and facilitative of the psychological counselling".
DISCUSSION
[81] Counsel for the plaintiffs submits that there is ample evidence to support a finding of sexual assault and battery against the defendant. She submits that causation flows from the liability on this tort such that I do not need to find liability on the other torts pleaded in the Statement of Claim. I agree. There is clear, cogent, and credible evidence to support a finding of sexual assault and battery against the defendant with respect to both Corrine and Teresa and there is clear evidence that these assaults and battery caused the ongoing psychological and medical problems of Corrine and Teresa.
[82] The actions of the defendant were despicable and egregious. As their uncle, the defendant was in a position of trust and, prior to the incidents, seemed to be a person that both Corrine and Teresa looked up to. His actions, which for decades had gone unreported and unpunished, stole away both Corrine and Teresa's childhoods, and created serious, enduring problems that they both continue to face on a daily basis.
[83] I was struck by Corrine's testimony that after the assaults, she "wanted to find a secret door or passage back to where it used to be" – a telling statement that things would never again be the same for this then 6 year-old child. Corrine as a child went to Mass each day from grades 1 to 8, except on Saturday, so that "God would love me more", as though the abuse was somehow her responsibility. This was all caused by the defendant's calculated acts of abuse which terrorized her as a young child.
[84] Corrine continues to this day to suffer from depression, anxiety, and symptoms associated with Post-traumatic Stress Disorder. As clearly stated by Dr. Hill in her expert report, the prognosis for recovery and improvement is poor. Corrine will have to continue to live with this for the rest of her life. This abuse has greatly impacted her family life, her working life and any sense of normalcy she could have had.
[85] Similarly, Teresa's life has been severely impacted by the assaults and battery inflicted upon her by the defendant. Teresa had to endure one and one-half years of sexual assaults by the defendant, starting at the young age of 11. She too kept this hidden for decades and seemed to blame herself for what happened to her.
[86] What is most appalling with respect to Teresa is that adults who knew of the abuse that Corrine had suffered did absolutely nothing to stop further abuse, and as a result, Teresa was sexually assaulted over a prolonged period of time many years later. Having only recently learned this information, one cannot fathom the further trauma and stress to Teresa in knowing that her abuse could have been prevented. I note that Teresa was quick not to blame anyone for this, which is a testament to her character; however, it is surely troubling to her and her family members and will never be forgotten.
[87] Teresa's testimony that she always felt different and that she was not good enough was telling with respect to the impact that these assaults had on her. Teresa's desire to rise above to prove to others that she was not a victim has been a lifelong pursuit for her which I am sure is a daily, ongoing struggle.
[88] She too continues to this day to suffer from depression, anxiety, and symptoms associated with Post-traumatic Stress Disorder. As clearly stated by Dr. Hill in her expert report, the prognosis for Teresa’s recovery and improvement is poor. Teresa will have to continue to live with this for the rest of her life. This highly intrusive, degrading abuse has also greatly impacted her family life, her working life, and any sense of normalcy she could have had.
[89] The self-guilt and trauma that both of these women have endured for decades is a direct result of the repugnant actions of the defendant. I am confident that although no award of damages can ever compensate Corrine and Teresa for the reprehensible acts of the defendant, who is now in his 80s, they are certainly entitled to damages.
NON-PECUNIARY AND AGGRAVATED DAMAGES
[90] In the Nova Scotia Court of Appeal decision of B.M.G. v. Nova Scotia (Attorney General), 2007 NSCA 120, 288 D.L.R. (4th) 88, at para. 120, the Court described the functional approach which should be taken with respect to the assessment of non-pecuniary damages in cases of sexual battery: "This approach takes account of the capacity of the award to provide solace for the victim, to vindicate the victim's physical autonomy and dignity and, through an award of aggravated damages, to take account of the humiliating and degrading nature of the defendant's conduct."
[91] The Court, in B.M.G., also referred to the non-exhaustive list of factors to be considered in determining a non-pecuniary damages award in sexual battery cases, at paras. 134 and 135:
¶134 The Supreme Court in Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3 at para. 89 approved the factors consider by the trial judge in that case: W.R.B. v. Plint, 2001 BCSC 997, [2001] B.C.J. No. 1446 (Q.L.) (S.C.) at para. 398 ff. These include:
• the circumstances of the victim at the time of the events, including factors such as age and vulnerability;
• the circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were;
• the circumstances of the defendant, including age and whether he or she was in a position of trust; and
• the consequences for the victim of the wrongful behaviour including ongoing psychological injuries.
¶135 Consideration of these factors, in my view, will assist in determining an appropriate amount of non-pecuniary damages to serve the functions of providing solace for the pain, suffering and loss of enjoyment of life flowing from the assaults, of demonstrating vindication of the victim's rights of personal dignity and individual autonomy and, with regard to aggravated damages, of appropriately recognizing the humiliating and undignified nature of the defendant's conduct.
[92] After an analysis of the case law, the court in B.M.G. found that, in 2007, an acceptable range of non-pecuniary damages for these types of cases was between $125,000 and $250,000. The reasoning of the Court and range of non-pecuniary damages in B.M.G. has been followed in many instances.
[93] There is no doubt that each case is fact-specific when assessing damages.
[94] The sexual assaults inflicted on Corrine occurred when she was only 6 years old. The assaults were invasive and degrading and occurred on a number of occasions. She was at a particularly vulnerable age and would have had complete trust in her uncle. She did not comprehend what was happening to her and she was frightened. The defendant was entrusted with the care of Corrine and he used this opportunity on a number of occasions to abuse Corrine. He was in a position of trust and he abused that position. His abuse caused significant harm to Corrine and directly contributed to her ongoing psychological and medical difficulties. He took advantage of a completely vulnerable young child, which is inexcusable.
[95] Corrine was subjected to inappropriate touching, digital penetration, being used for sexual pleasure and masturbation, and acts of violence, including the slamming of her fingers with the trunk door which was perceived by Corrine as a threat not to tell anyone of the defendant's inappropriate actions.
[96] Corrine is seeking the sum of $175,000 for non-pecuniary damages and an additional $50,000 based on the aggravating factors of the assaults. Given all of the medical and psychological damage which she has suffered and continues to suffer from, her young age, the number of assaults and her uncle’s position of trust, I find that the sum of $175,000 is completely appropriate for non-pecuniary damages and $50,000 for aggravated damages is also appropriate given the humiliating and degrading nature of the assaults.
[97] The sexual assaults inflicted on Teresa when she was only 11 years old and which continued for one and one-half years were invasive, aggressive, and degrading. The assaults were protracted and she has suffered innumerable consequences of a psychological and medical nature as a result of this abuse. Teresa was at a vulnerable age and was subjected to egregious acts, mainly in the middle of the night. These assaults left her frightened and destroyed any trust she had in males, which significantly impacted her ability to foster close relationships with her male cousins and other members of her extended family.
[98] The defendant was entrusted with the care of Teresa and he repeatedly used those opportunities to sexually assault her. Teresa was subjected to countless acts of inappropriate touching, digital penetration, being used for sexual pleasure and masturbation, and oral sex at a very young age. She has been significantly impacted by these assaults and has continued to suffer ongoing psychological and medical difficulties. The defendant's actions in taking advantage of his young niece for his own sexual pleasure are despicable.
[99] Teresa is seeking the sum of $200,000 for non-pecuniary damages and $50,000 based on the aggravating factors of the assaults. Given all the medical and psychological damage which she has suffered and continues to suffer from, her young age, her uncle’s position of trust, and the number and length of these assaults, I find that the sum of $200,000 is completely appropriate for non-pecuniary damages and $50,000 for aggravated damages is also appropriate, given the humiliating and degrading nature of the assaults.
LOSS OF EARNING CAPACITY
[100] Corrine seeks $20,000 for loss of earning capacity. She testified that she would have liked to have gone on to university, and in fact, it was expected of her by her father. However, Corrine's evidence was that she could not bear to be alone and to be away from her home. This she attributes to the abuse which she suffered.
[101] It is somewhat difficult to analyze the loss of earning capacity for Corrine as she has always been successful in her employment and an extremely hard worker. The abuse caused her to bury herself in her work. I do accept, however, that were it not for these deplorable acts by her uncle she may have had the confidence to live away from home and go to university. This may have resulted in a higher income for her or greater success than that which she has already achieved.
[102] The Court would have been assisted by evidence from an accountant or economist who could have aided the Court with the determination of the quantum of the loss of earning capacity. However, I find that the sum of $20,000 is not unrealistic and is certainly within the range of loss of earning capacity for someone who has had to forgo university as a result of the impact of the sexual assaults.
[103] Teresa seeks $5,000 for her loss of earning capacity and her delayed entry into the insurance field where she is currently employed. Teresa's evidence was that she first pursued a diploma as a legal assistant. She was unsure, given her ongoing problems, what area of schooling she should pursue at the time. I find that the sum of $5,000 is appropriate for damages for loss of earning capacity as there is no doubt that Teresa's academic pursuits and work endeavours would have been greatly affected as a result of these assaults inflicted upon her.
PAST CARE COSTS
[104] Teresa seeks reimbursement for chiropractic costs which were incurred from 2006 to 2011 in the amount of $3,080. She also seeks reimbursement for massage therapy in the amount of $4,311, and for alternative medicine treatments in the amount of $640.96. I find that it is appropriate that Teresa be reimbursed for all of these expenses as Dr. Hill has indicated in her report that these treatments are necessary and a direct result of the damage which Teresa has suffered from this childhood abuse.
FUTURE CARE COSTS
[105] Dr. Hill recommended in her report, weekly to biweekly sessions for Corrine with a registered psychologist. Corrine is seeking the sum of $11,440 with respect to weekly psychologist appointments for the first year and then biweekly appointments in the second year amounting to $5,940. She is also seeking costs for twelve sessions per year with this registered psychologist for 10 years in the amount of $26,400, plus 10 sessions of marital counselling in the sum of $2,640. The total sum of these future care costs that Corrine is seeking is $46,420. Given the recommendations of Dr. Hill, I find that the future care costs of $46,420 for Corrine are appropriate.
[106] Dr. Hill recommended the same frequency of sessions with a registered psychologist and marriage counselling for Teresa. The total is $46,420. Teresa is also seeking massage therapy to assist with the physical manifestations of her difficulties. She is seeking 12 sessions per year for 10 years for a total of $9,720. She also seeks chiropractic assistance for 10 years for a total of $4,800. The total that Teresa is seeking with respect to these future care costs is $60,940. Again, given the recommendations of Dr. Hill, I find that the future care costs of $60,940 for Teresa are appropriate.
PUNITIVE DAMAGES
[107] In K.T. v. Vranich, 2011 ONSC 683, [2011] O.J. No. 261, Whitten J. at paras. 114 and 115 set out the objectives of punitive damages referencing the Supreme Court of Canada case of Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595:
¶114 Punitive damages are distinct from aggravated damages. These damages are designed to punish, and as such are an exception to the general rule that damages are to compensate an injured party. Punitive damages go beyond compensatory damages.
¶115 Starting at paragraph 67 of Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, Binnie J. describes punitive damages as an award designed to meet the objectives of punishment, deterrence and denunciation rather than compensation. Binnie J. goes on to provide that punitive damages cannot be limited to specific categories but should be resorted to only in exceptional cases. At paragraph 94 his Honour offers eleven descriptive points on punitive damages:
(1) Punitive damages are very much the exception rather than the rule,
(2) [They are] imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.
(3) Where they are awarded, punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant,
(4) [In awarding punitive damages, the court must have] ... regard to any other fines or penalties suffered by the defendant for the misconduct in question.
(5) Punitive damages are generally given only where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence and denunciation.
(6) [The purpose of punitive damages] ... is not to compensate the plaintiff, but
(7) [Their purpose, rather, is] to give a defendant his or her just desert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community's collective condemnation (denunciation) of what has happened.
(8) Punitive damages are awarded only where compensatory damages, which to some extent are punitive, are insufficient to accomplish these objectives, and
(9) [Punitive damages] ... are given in an amount that is no greater than necessary to rationally accomplish their purpose.
(10) ... while normally the state would be the recipient of any fine or penalty for misconduct, the plaintiff will keep punitive damages as a "windfall" in addition to compensatory damages.
(11) Judges and juries in our system have usually found that moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient.
[108] Both Corrine and Teresa seek $25,000 with respect to punitive damages. Applying the criteria for punitive damages, I find that the sum of $25,000 is appropriate for each of Corrine and Teresa. Both Corrine and Teresa were very young children at vulnerable ages. The defendant's behaviour was abhorrent and there has not been a sign of remorse or acknowledgment of this abuse by him. The harm caused by the malicious, reprehensible conduct of the defendant is permanent.
FAMILY LAW ACT CLAIM OF ELIZABETH BETTS
[109] The other plaintiff, Elizabeth Betts, is Corrine's mother. She has made a claim under the Family Law Act for a loss of care, guidance, and companionship, which she would otherwise have received from Corrine. She has also claimed that she provided services to Corrine and claims for the value of the services and for income loss. She also claims that she has incurred out-of-pocket expenses on behalf of Corrine.
[110] Elizabeth did not testify at trial as she is experiencing mental health issues and was not capable of participating in the trial. Corrine was acting as her Litigation Guardian.
[111] I am not prepared to grant any compensation to Elizabeth Betts with respect to the abuse suffered by Corrine. There was insufficient evidence before me on which to make this determination and although I am confident that Ms. Betts struggled over the years as she was aware of the abuse suffered by Corrine by the defendant, no one testified as to the affect this had on Ms. Betts, services provided by her, income loss or out-of-pocket expenses.
COSTS
[112] Section 4(6) of the Victims' Bill of Rights, 1995, S.O. 1995, c. 6, states that "[a] judge who makes an order for costs in favour of the victim shall make the order on a solicitor and client basis, unless the judge considers that to do so would not be in the interest of justice." Although there has been no criminal trial or conviction in this case, I find that the same principles underlying the Victims' Bill of Rights should apply here in that Corrine and Teresa should be treated with compassion and fairness.
[113] It would be unfair to make Corrine and Teresa bear the costs with respect to this litigation. The plaintiffs are seeking $41,617.49, inclusive of HST and disbursements in costs on a substantial indemnity basis which I find appropriate.
ORDER
[114] I therefore make the following order:
- The defendant, Edward Betts, shall pay to the plaintiff, Corrine Milne, the following:
(a) non-pecuniary - general and aggravated damages in the amount of $225,000;
(b) loss of earning capacity in the amount of $20,000;
(c) future care costs in the amount of $46,420; and
(d) punitive damages in the amount of $25,000.
- The defendant, Edward Betts, shall pay to the plaintiff, Teresa Drijber, the following:
(a) non-pecuniary ‑ general and aggravated damages in the amount of $250,000;
(b) loss of earning capacity in the amount of $5,000;
(c) past care costs in the amount of $8,031.96;
(d) future care costs in the amount of $60,940; and
(e) punitive damages in the amount of $25,000.
The Defendant, Edward Betts, shall pay prejudgment interest to the plaintiffs, Corrine Milne and Teresa Drijber, pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, from November 7, 2011.
The Defendant, Edward Betts, shall pay costs to the plaintiffs on a substantial indemnity basis in the amount of $41,617.49, inclusive of HST and disbursements.
Stevenson J.
Released: October 3, 2012
COURT FILE NO.: CV-11-438935
DATE: 20121003
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CORRINE MILNE, TERESA DRIJBER and catherine elizabeth betts
Plaintiffs
- and -
EDWARD BETTS
Defendant
REASONS FOR DECISION
Stevenson J.
Released: October 3, 2012