Ontario Superior Court of Justice

Court File No.: 05-CV-033236
Date: 2013-09-13

Between

Victoria Filanovsky
Plaintiff

R. Mitchell Rowe, for the Plaintiff

-and-

Igor Filanovsky and Tatyana Filanovsky
Defendants

J.L. Lee Mullowney, for the Defendants

Heard: June 17-27, 2013,
at Ottawa, Ontario

Madam Justice B. R. Warkentin

Reasons For Judgment

Introduction

[1] The Plaintiff claims damages from the Defendants who are her parents, for physical and emotional abuse, breach of fiduciary duty and (as against the mother) failing to assist and protect the Plaintiff.

[2] The Statement of Claim was first filed in December 2005 and amended in 2008. The Defendants deny all of the Plaintiff's allegations.

[3] In January 2013, the parties agreed to a bifurcated trial under Rule 6.1 of the Rules of Civil Procedure. Thus the only issue before me was whether or not there is liability on the part of one or both of the Defendants. If I find there is liability, then there will be another trial on causation and damages.

[4] In their decision to proceed with a bifurcated trial the parties agreed to a series of "Trial Questions". These were made Exhibit 1 at the trial and for ease of reference are as follows:

Re: Igor Filanovsky

1. Assault and Battery

Did Defendant Igor Filanovsky intentionally or negligently, physically or emotionally, assault and/or batter the Plaintiff?

If so, (a) When did the assault(s) and/or battery occur?

(b) What was the nature of the assault(s) and/or battery?

(c) What was the frequency of the assault(s) and/or battery?

2. Intentional Infliction of Harm

Did Defendant Igor Filanovsky intentionally or negligently inflict harm including mental distress on the Plaintiff?

If so, (a) When did the infliction of emotional harm occur?

(b) What was the nature of the emotional harm?

(c) How was the emotional harm inflicted?

3. Fiduciary Duty

Did Defendant Igor Filanovsky owe a fiduciary duty to the Plaintiff?

If so, (a) What was the nature of the fiduciary owed?

(b) Did the Defendant Igor Filanovsky breach the duty owed to the Plaintiff?

If so, (c) In what way?

Re: Tatyana Filanovsky

1. Assault

Did Defendant Tatyana Filanovsky, intentionally or negligently, emotionally assault the Plaintiff?

If so, (a) When did the emotional assault(s) occur?

(b) What was the nature of the emotional assault(s)?

(c) What was the frequency of emotional assault(s)?

2. Intentional Infliction of Harm

Did Defendant Tatyana Filanovsky intentionally or negligently inflict harm including mental distress on the Plaintiff?

If so, (a) When did the infliction of emotional harm occur?

(b) What was the nature of the infliction of emotional harm?

(c) What was the frequency of the infliction of emotional harm?

3. Fiduciary Duty

Did Defendant Tatyana Filanovsky owe a fiduciary duty to the Plaintiff?

If so, (a) What was the nature of the duty owed?

(b) Did the Defendant Tatyana Filanovsky breach the duty?

If so, (c) In what way?

4. Assist and Protect

Did Defendant Tatyana Filanovsky owe a duty to assist and protect the Plaintiff?

If so, (a) What was the nature of the duty owed?

(b) Did the Defendant Tatyana Filanovsky breach the duty owed?

If so, (c) In what way?

[5] The Plaintiff is 45 years old. In her Statement of Claim, she alleges that between the ages of 9 and 14, her father, Igor Filanovsky, repeatedly physically abused her. The physical abuse was in the form of blows to her face and head. She claims that her mother failed to protect her from this abuse.

[6] The Plaintiff also alleges that both her parents verbally and emotionally abused her by the use of verbal threats, yelling, cursing, belittling and demeaning remarks and failing to provide proper medical and dental care and other necessaries of life.

[7] The abuse the Plaintiff described occurred more than 30 years ago.

[8] While it is not my role in this hearing to deal with causation or damages it is helpful for the narrative for me to summarize the injuries the Plaintiff alleges were caused by her parents' conduct.

[9] The Plaintiff's allegation is that she now suffers from a variety of medical conditions and disorders including traumatic brain injury resulting from the alleged blows to the head, low self-esteem, an inability to achieve her career potential, interference with her academic and employment pursuits and difficulty in developing or maintaining meaningful and healthy relationships.

Background

[10] The parties are a Russian immigrant family. They arrived in Canada in October 1976 from the former Soviet Union as political refugees. The Defendant, Mr. Igor Filanovsky is now 73 years of age and the Defendant Mrs. Tatyana Filanovsky is now 75 years of age. They have one other child, a son, Eugene (Yevgeny) Filanovsky who is 6 years younger than the Plaintiff.

[11] Shortly after arriving in Canada, the family settled in Edmonton, Alberta. The events leading to this law suit are alleged to have occurred while the family was living in Edmonton. The Defendants recently relocated to British Columbia to live near their son and his family.

[12] Mr. Filanovsky, until his retirement a few years ago, was a professor of engineering at the University of Alberta in Edmonton. He had explored a number of options with various universities, including some universities in the United States after arriving in Canada, but eventually was offered tenure at the University of Alberta and that is where he spent the majority of his career.

[13] Mrs. Filanovsky received a Master's Degree in Engineering and a PhD in Biophysics while still in the USSR. Upon their arrival in Canada, Mrs. Filanovsky began working part-time at the University of Alberta, first as a research assistant and then obtained degrees in computer and library science. Until her retirement, she continued to work at the University of Alberta.

[14] Because most of the witnesses are resident in Alberta, the parties also agreed to introduce certain third party evidence by way of affidavit. This affidavit evidence was introduced as Exhibits 2 and 12.

Plaintiff's Evidence

[15] At trial, the Plaintiff described her life in her parents' home as follows:

a) Between ages 8 to 11 she described happy memories. The Plaintiff was an excellent student and quickly adapted to the Canadian education system. She wanted to become Canadian, to look Canadian, dress as her classmates dressed and eat Canadian food. During this period, the family lived in an apartment and the Plaintiff's maternal grandmother assisted with the care of the children while both parents were attempting to secure permanent employment in the university. Their grandmother died in the late 1970's.

b) In August 1980, when the Plaintiff was 12, the family was involved in a car accident. The Plaintiff suffered a fractured femur, Mr. Filanovsky suffered broken ribs and Mrs. Filanovsky suffered a broken nose. Eugene Filanovsky was unhurt. The Plaintiff was hospitalized with her leg kept in traction while it healed. She missed about 6 weeks or so of grade 7 in the fall of 1980.

c) In 1981, when the Plaintiff was in grade 8 at age 13, her parents moved the family from an apartment to a house. The Plaintiff claimed that this is when her unhappy memories began because her parents started entertaining regularly resulting in her having to contribute to the preparation and clean-up for these dinner parties.

d) Additionally, the Plaintiff felt that her parents were attempting to preserve their Russian heritage and in doing so, forced her to remain a "little Russian girl", to speak the Russian language at home, eat traditional Russian dishes and to dress as girls in Russia dressed. She began to protest and this caused conflict in the home.

e) The Plaintiff determined that the work her parents required from her around the home was greater than what was required of other Canadian children. She felt she was not afforded the same rights as Canadian children received. It was her view that in Canadian homes it was the parents, not the children who were responsible for preparation and clean up after dinner guests.

f) At about age 12, the Plaintiff began babysitting for other families because she wanted her own money. She testified that her parents refused to provide her with an allowance, when other Canadian children were given an allowance. She enjoyed babysitting and going into Canadian homes where she felt she was well treated. She felt better as a person when she was in Canadian homes, whereas her mother insisted that she work more and more at home but no amount of work was sufficient to justify receiving an allowance.

g) The Plaintiff believed that she was not sporty enough for her father and this caused him to be unhappy with her. It was also very important to her father that she excels in math. She was exceptionally gifted in math until about grade 10 when her marks began to fall.

h) It was the issues surrounding an allowance and household chores when she was in grades 7 to 9 that caused her relationship with her parents to deteriorate. She found the constant entertaining to be a burden, particularly because her parents did not thank her like the Canadian family's for whom she babysat did. She told her parents that they were treating her unfairly and that she did not want to do all of the chores required for their guests.

i) She developed issues with eating around the time she was 12 or 13. She believed that her mother felt she was not skinny enough and her mother would criticise her for not being as skinny, delicate and feminine as other girls her age. She became afraid of eating with her family and began to eat in her own room or wait to eat until she obtained a babysitting job where she would be fed.

j) The Plaintiff wanted to have braces because of a gap between her front teeth. She testified that her parents refused to take her for dental care so she went on her own to the University Alberta dental school clinic believing that she would receive free treatment from the dental students. In spite of this, she alleged that her parents refused to pay for braces, which would have been covered under their dental plan from employment. Around this time she began to refuse to have her photo taken.

k) The Plaintiff also testified about having intermittent stomach pain as a young teenager. She claimed that when she informed her parents about the pain their response was to tell her to stop eating so much and they refused to take her for medical care.

[16] It was with this backdrop of discord in the family home when that the physical abuse allegedly began. It was the Plaintiff's belief that her complaints caused conflict and her father began to hit her because she would not stop arguing with him or her mother. The Plaintiff's recollection was that the first time she was hit was shortly after they moved to the house from the apartment in 1981when she was about age 13.

[17] The Plaintiff alleged that her mother did nothing to prevent the abuse and told her never to tell anyone about the abuse and the other issues in their home.

[18] The Plaintiff described common features that occurred in each assault. It started with some type of argument with her father, usually about her not participating enough in the household, or her mother would complain to her father about her lack of participation; there would be some yelling about this and then it would escalate. She alleged that her father would hit her with his open right hand on the left side of her face. She would end up with red marks on her face.

[19] The Plaintiff claimed the frequency of these assaults varied and all of the assaults occurred in their home. She estimated that there were between 15 to 20 such assaults over a 3 year period beginning in 1981. After each assault she would become paralysed with fear which would stop her from arguing with her parents for a period of time. The Plaintiff described her reaction to the assaults as feeling "fear, incredible pain and then incredible anger because I felt it was incredibly unfair and it was incredibly painful."

[20] The Plaintiff described 5 of the assaults as follows:

a) The first time she was assaulted she told her friend from next door, Cindy Paradis, about the assault because Cindy asked her about the bruises. Cindy told her mother, Judy Bell. The Plaintiff testified that after that Cindy was no longer permitted to visit the Plaintiff in the Plaintiff's home.

b) On another occasion when Cindy's mother, Judy Bell asked her about a black eye the Plaintiff refused to explain how it happened because her mother had told her not to tell anyone. It was the Plaintiff's evidence that it was her father who hit her and caused the black eye.

c) There was also an incident when during a confrontation with her father, she went to her bedroom and her father ran after her and hit her. She described how after that she decided to put a lock on her door and purchased a hook and eye lock which she claims she installed herself.

d) The Plaintiff described another incident in her bedroom where when her father was reaching for her, he knocked her lamp over and it left a mark on her bedroom carpet.

e) She also described an occasion in which her father broke one of her earrings when he hit her. She described being very upset by this because she really liked those earrings.

[21] The Plaintiff described seeing red marks on her face and marks on some occasions that looked like finger prints on her face after her father had struck her.

[22] The Plaintiff told her school teacher/counsellor, a Mrs. Geraldine Bell, about her father having struck her. Ms. Bell took her to the principal of her school who then sent her to the hospital. The Plaintiff claimed that she went to the hospital on her own without her health card or an adult accompanying her. She recalled that she was examined by a young man whom she took to be a medical student. She was found to be medically fine and sent back to school. There was no hospital record of this alleged attendance. No one contacted the Defendants about the Plaintiff's allegation at that time nor was there police involvement.

[23] It was the Plaintiff's evidence that some of the assaults occurred in her mother's presence and that she overheard her parents speaking about the fact that her father hit her. She also claimed that her mother was aware of the assaults even if she not always present because her mother saw the bruises and knew where they came from. The Plaintiff claimed that her mother did nothing to protect her from the assaults and simply gave her makeup to cover the bruises.

[24] The Plaintiff believed that her brother Eugene was treated much better than she and was never the victim of assaults from her father. She was unable to recall if Eugene ever witnessed their father assaulting her.

[25] The Plaintiff testified that she began to suffer from some medical problems during this period. She had a specific recollection about two things; the first was that after one of the assaults she found some of her hair in the drain. She claimed that some of her hair had fallen out and this caused her concern. The Plaintiff also testified that the pain from being hit was excruciating and she started getting intermittent headaches. The headaches happened initially only after she had been hit, but then started even when she had not been hit. She claimed she recalled this specifically because she purchased medication to treat the headaches.

[26] The Plaintiff testified that the assaults stopped entirely when she was about 15 and a half. She described the final assault as follows:

She was in the kitchen of the house and an argument arose between her father and herself. She could not recall whether her father hit her, but recalled running out of the house and her father running after her. She saw a family out for a walk and they intervened and called the police from their home. The police interviewed her and then brought her home and spoke to her parents.

The Plaintiff recalled that her mother was extremely angry with her after the police left. She claimed that her mother told her she had done a horrible thing and was a traitor to the family for involving the police.

[27] There was a police report dated October 16, 1983 that described this incident. The police report confirmed that the Plaintiff and Mr. Filanovsky had an argument and the Plaintiff told the police officer that she ran from the home fearing her father might assault her. The police spoke with Mr. Filanovsky who informed the police that the Plaintiff had not listened to her mother (Mrs. Filanovsky), and that he had no intention of harming the Plaintiff. The police officer advised the parties to try to compromise in an effort to solve the problem and no police action was required.

[28] The Plaintiff testified that after the incident on October 16, 1983, she was never assaulted again by her father.

[29] In 1984 when the Plaintiff was in grade 10, she described having difficulty concentrating, finding herself tired a lot of the time and having trouble remembering things. She referred to having "space outs" and that she was bothered by them. She was in the International Baccalaureate programme and a straight "A" student. By the time she was in grade 11, her space outs became more troubling and her grades began to fall. She switched to the regular high school stream in grade 12 and graduated with a regular high school diploma in 1986, with mostly "B's" and "C's".

[30] The Plaintiff remained in the family home after graduating from high school. She travelled for a number of months in Europe and then commenced undergraduate studies at Grant MacEwan College, in Edmonton in the fall of 1987. She studied there while living at home until she graduated in December 1989. In 1990, the Plaintiff moved first to Calgary for one semester at the University of Calgary and then to Lethbridge where she studied at the University of Lethbridge until obtaining the degree of Bachelor of Management in May 1992. During this period, the Plaintiff regularly returned home during her school breaks.

[31] The Plaintiff claimed that she did not succeed to the level she should have in her university studies. She testified that she had wanted to study accounting and become a chartered accountant, but was unable to focus sufficiently to pursue this career path.

[32] In the fall of 1994, the Plaintiff moved to Ottawa and it was around this time that she began to stop visiting or contacting her parents. In 2002 the Plaintiff advised her parents by email that she wanted no contact with them until they acknowledged Mr. Filanovsky's physical violence toward her. When her mother tried to visit her once in Ottawa, the Plaintiff responded in an email by describing the violence as follows:

"You did not tell all those psychologists and psychiatrists that Father beat me so bad that I had to go to the hospital, that my left eye bled and that there were fingerprints on my face. You did not tell the school principal either. You did not tell anyone that the neighbors had to call the police while you did nothing! No one can help you till you tell the truth."

Plaintiff's other witnesses by affidavit

[33] There were four witnesses for the Plaintiff who provided evidence by affidavit. This evidence comprised the original affidavit of the witness together with responses to questions from defence counsel and police interview notes, where applicable.

[34] The four affidavit witnesses were Geraldine Bell, the teacher and guidance counsellor of the Plaintiff; Judy Boyd, the mother of the Plaintiff's childhood friend, Cindy Paradis; Asha Jugdutt a high school friend; and Jeffery Gingera a college student friend.

[35] None of these witnesses ever observed physical violence occur between the Plaintiff and her father, Mr. Filanovsky. Similarly, none of these witnesses observed any conflict between the Plaintiff and her parents. Their evidence was limited to what they were told by the Plaintiff about conflict in the home and their observations of the Plaintiff.

[36] Geraldine Bell recalled that when the Plaintiff was in grade 8 she alleged that her father had hit her. The Plaintiff showed her a small bruise on her face or neck area. Ms. Bell recalled taking the Plaintiff to the principal who advised her to attend the hospital. Ms. Bell believed that the hospital staff would make the necessary reports if warranted. Ms. Bell did not take any other action and the Plaintiff did not speak with her again about this incident or any others. During the years that she was the Plaintiff's teacher and counsellor she did not witness any signs of neglect and all her interactions with the Defendants were in the usual course of parent teacher interviews.

[37] Judy Boyd recalled hearing the Defendants raise their voices often and observed Eugene running out of the house on a regular basis. She did not understand what was being said because the parties were speaking Russian and had no idea of the context of the raised voices.

[38] Ms. Boyd recalled one occasion when her daughter Cindy, who was two or three years younger than the Plaintiff told her that the Plaintiff had a black eye. She later observed the Plaintiff with a black eye. The Plaintiff refused to tell her what had happened to cause the black eye. Ms. Boyd stated that she was concerned about possible violence in the home.

[39] Asha Jugdutt and the Plaintiff attended the same high school and were in a number of classes in grades 10 through 12 together. When they were both in grade 10, they confided in each other about abuse they each suffered in their respective homes. Ms. Jugdutt told the Plaintiff that she was being abused and the Plaintiff told Ms. Jugdutt that she was being beaten and criticised by her parents for being overweight and for her falling grades.

[40] On one occasion Ms. Jugdutt claims to have observed bruises on the Plaintiff's forearms.

[41] Jeffery Gingera and the Plaintiff met when they were both students at Grant MacEwan Community College in the late 1980's in Edmonton. It was in the spring of 1998, when he was living in Calgary and the Plaintiff was living in Ottawa that the Plaintiff first advised Mr. Gingera that she had been physically and emotionally abused as a child. Mr. Gingera commented on the Plaintiff's limited attention span, fatigue and inability to concentrate.

Expert Evidence

[42] The Plaintiff introduced two expert witnesses. The report of Dr. R. Kunjukrishnan, a forensic psychologist, was admitted on consent and therefore he was not called to testify. The second, Dr. Catherine Gow, an expert in clinical psychology, neuropsychology and rehabilitation did testify.

[43] The evidence of both experts was introduced for the purpose of interpreting the Plaintiff's medical history, certain test results and to provide context and interpretation to her history and test results. Their evidence, of necessity did at times address causation issues; however, I have not considered that evidence as part of my determination of liability. It was introduced solely for the purpose of assisting with the narrative.

[44] Both experts reviewed the Plaintiff's medical history, including certain MRI and other scans of the Plaintiff's brain and obtained information from the Plaintiff about her personal history. Additionally, both experts conducted certain psychological and other tests on the Plaintiff before rendering their opinions.

[45] Dr. Gow testified that some of the Plaintiff's deficits, particularly those related to her difficulties with concentration and fatigue were consistent with someone who had suffered a traumatic brain injury. It was her opinion that this could have been caused by blows to the head when the Plaintiff was a child. Dr. Gow relied upon the self-reporting of the Plaintiff regarding her description of the blows she claimed to have received by her father. Dr. Gow agreed on cross examination, however, that the brain injury could also have been caused by a head injury from a motor vehicle accident, or other trauma, or a series of such injuries or traumas.

[46] Dr. Gow also testified that the Plaintiff demonstrated features of Asperger's disorder, which included obsessive traits, perfectionism and social/emotional deficits.

[47] In his report, Dr. Kunjukrishnan diagnosed the Plaintiff as suffering from complex post-traumatic stress disorder which he suggested resulted from significant physical and psychological abuse. He qualified his diagnosis by stating that the only evidence of the abuse was the self-reporting from the Plaintiff, with no collateral sources to confirm the allegations. His review of the neurological and neuropsychological investigations confirmed some brain damage to the Plaintiff had occurred.

[48] Other than the Plaintiff's self-reporting of the alleged abuse, both experts agreed that there was nothing in the Plaintiff's medical history that corroborated her claims. Similarly, the information in her medical records from the motor vehicle accident when she was 12 did not indicate that the Plaintiff had suffered a head injury.

Defence Evidence

[49] The Defendants denied that the Plaintiff ever suffered the abuse, physical or emotional that she claims occurred. They both also described their sadness about the allegations that the Plaintiff has made against them.

[50] Both Mr. Filanovsky and Mrs. Filanovsky described the Plaintiff as a very intelligent child who did very well in school up until grade 10 when she began to struggle. They also described a child who was very strong willed. They agreed with the Plaintiff's evidence regarding her strong objections to being a "little Russian girl" and to helping around the house.

[51] The Defendants also both described personality changes that they claim began to occur in the Plaintiff after the motor vehicle accident in 1980. It was their evidence that prior to the accident she appeared to be a happy child who loved school.

[52] After the accident, at about the same time she was entering puberty, they described a child who became more and more angry with them, who refused to participate in family outings and events and who was impolite and often rude to other adults.

[53] A psychiatric report of Dr. Alan Carroll from 1982, obtained for the purpose of litigation that ensued after the 1980 motor vehicle accident, was introduced at trial as part of the Plaintiff's medical records. The Defendants and the medical staff who were treating the Plaintiff in the hospital after the accident in 1980 sought assistance from Dr. Carroll because the Plaintiff was refusing to eat while in hospital. Dr. Carroll reported that he found the Plaintiff to be moderately severely disturbed and began a course