COURT FILE NO.: 12-55682
DATE: June 7, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ilinca Calin and Ana Calin
Plaintiffs
– and –
Liviu Calin
Defendant
Charles Gibson and Alexander Gibson for plaintiffs
Ronald Caza and Andrea Baldy for the defendant
HEARD: January 14 to February 1st, February 13 and 15, and April 15, 2019
JUSTICE SALLY GOMERY
Overview
[1] This is a claim for damages for physical, psychological and emotional abuse by two women against their father.
[2] The plaintiffs Ana and Ilinca Calin are twin sisters born in Bucharest, Romania, on January 19, 1986. They have lived in Canada since they were eight years old. They are currently 33 years old.
[3] The defendant, their father Liviu Calin, met their mother Doina in 1985.[^1] Liviu was an electrical engineer. Doina had an economics degree. In March 1994, the family moved to Canada and eventually settled in Ottawa. Both Liviu and Doina got jobs with Nortel. Ana and Ilinca did well in school, and learned to play tennis, skate and ski. The family went on vacations to California and visited friends in Toronto and Montreal. In 1999, the Calins bought a house in Kanata, an Ottawa suburb.
[4] In late 1999, tragedy hit the Calin family. Doina was diagnosed with cancer and died eleven months later on October 7, 2000. Ana and Ilinca were 14 years old. Liviu became depressed and went on disability leave the following year. In 2002, he began a relationship with Nora Lacatus, an acquaintance in the Romanian-Canadian community. Ms. Lacatus moved in with the Calin family for a few months, then Liviu moved in with her, leaving his daughters alone in the Kanata house much of the time.
[5] In 2004, Ana and Ilinca graduated from high school and entered their first year of university at Carleton University. They were still living in the family home in Kanata in March 2005. What happened on the evening of March 26, 2005 is central to this case.
[6] On March 26, 2005, Liviu arrived at the house in Kanata to have Easter dinner with Ana and Ilinca. They got into an argument and there was a physical confrontation. After this confrontation, Ana and Ilinca snuck out of the house and sought refuge with the family of Ilinca’s boyfriend. The next day, they filed a police report saying that their father had assaulted them. They did not however want to press charges. Ana and Ilinca instead returned to their family home the next day, accompanied by the police, to retrieve some clothes and personal belongings. Since then, they have not had any meaningful interaction with their father.
[7] Ana and Ilinca allege that they left their home on March 26, 2005 after Liviu beat them violently and threatened Ana with a knife. They say that this incident was the culminating incident in a lifetime of abuse and that from the time they were very young, Liviu frequently beat them and called them degrading names. While Doina was alive, she shielded them from Liviu’s worst behaviour. But after her death, his abuse worsened and he prevented the plaintiffs from having contact with their maternal relatives or their friends.
[8] Ana and Ilinca claim that they suffer from post-traumatic stress disorder (PTSD), depression and anxiety as a result of their father’s abuse, and that he should compensate them for pain and suffering, medical costs and lost income. They ask me to find him liable for breach of fiduciary duty, negligence, assault, battery, intentional infliction of mental distress and wrongful imprisonment, and to order him to pay millions of dollars in damages.
[9] Liviu presents a very different account of the plaintiffs’ childhood and adolescence. He categorically denies any abuse. He presents himself as an active and engaged father who tried to do the best for his children before and after their mother’s death. Ana and Ilinca regularly went on family outings and vacations and participated in sports and community events. He and Doina set high standards for their daughters’ academic achievement and behaviour but he did not discipline them physically. Liviu admits that he cut off their contact with their maternal grandparents after Doina’s death, but contends that this was a reasonable decision in the circumstances.
[10] Liviu acknowledges that, on March 26, 2005, he got angry because he believed that Ana and Ilinca were spending too much time socializing and not enough time studying for upcoming university exams. He admits that he yelled at them, spanked both young women and sent them to their rooms. He denies that this conduct constituted battery or assault, or that he ever threatened Ana with a knife. He denies that he ever engaged in any unlawful conduct towards the plaintiffs.
[11] Determining what happened within the Calin family is challenging for many reasons. As plaintiffs, Ana and Ilinca have the burden of proof. The incidents they allege took place many years ago when they were children or teenagers. They have produced no medical records documenting any physical injuries during their childhood or adolescence. The only witnesses to most of the events at issue are the parties or the plaintiffs’ maternal grandmother. None of them were consistently reliable narrators.
[12] I nonetheless conclude, on the evidence presented over a three week trial, that Liviu was physically violent towards the plaintiffs at various times between 1994 and 2005. He slapped them, punched them and pulled their hair. He beat them with a belt at least once. The plaintiffs feared what their father might do when he lost his temper. In the year or so following Doina’s death, the frequency and severity of Liviu’s abuse increased. It decreased in 2002, when he moved out of the Kanata house. On March 26, 2005, however, he struck both plaintiffs and threatened Ana with a knife.
[13] Liviu’s acts exceeded the reasonable discipline that parents may impose on their children. His acts constituted battery. His treatment of the plaintiffs was negligent and a breach of his fiduciary duties to them. His threat to Ana on March 26, 2005 also constituted civil assault.
[14] Although Liviu cut off contact with the plaintiffs’ grandmother in early 2001, I do not find that he isolated them from their peers or controlled all of their activities outside of school as alleged by the plaintiffs. He is not liable for wrongful imprisonment. The plaintiffs have also not proved that his conduct caused the psychological conditions from which they currently suffer. He is accordingly not liable for intentional infliction of mental distress or wrongful imprisonment. Finally, they have not established, on a balance of probabilities, that they have lost any income or will do so in the future as a result of Liviu’s actions, or that they have lost a competitive advantage.
[15] The defendant’s abuse has had a profound impact on the plaintiffs’ lives. Ilinca, in particular, has had difficulty forming meaningful relationships or finding personal happiness. I award her general damages of $50,000. Ana has been better able to cope but was still significantly affected. I award her $35,000. I furthermore find that the defendant’s conduct was reprehensible and award Ana and Ilinca punitive damages of $10,000 each.
Analysis
[16] To resolve the issues in this lawsuit, I must consider the following questions:
(1) What must Ana and Ilinca prove in order to establish Liviu’s liability?
(a) The elements of the torts alleged
(b) The burden of proof and the parties’ credibility
(2) What occurred in the Calin household?
(a) The first period: 1986 to March 1994
(b) The second period: April 1994 to October 2000
(c) The third period: November 2000 to March 26, 2005
(3) If Liviu committed any torts, what injuries did this cause?
(4) What damages should Ana and Ilinca receive for their injuries?
(1) What must Ana and Ilinca prove in order to establish Liviu’s liability?
(a) The elements of the torts alleged
[17] Before considering the evidence and making findings of fact with respect to Ana and Ilinca’s allegations, I will briefly set out the elements of the torts they allege.
Battery
[18] A person commits battery when they intentionally inflict unlawful force on another person.[^2] The court must conclude that the defendant intended to, and did in fact, make physical contact. The contact must be either physically harmful or offensive to the victim’s reasonable sense of dignity.[^3]
[19] Ana and Ilinca allege that Liviu spanked, hit, beat, slapped, pinched or choked them or dragged them by their hair and that these acts constituted battery. To succeed in this claim, they must prove not only that Liviu committed some or all of these physical acts, but that he did so intentionally and that the contact was harmful or offensive.
Assault
[20] A civil assault is a threat, through words or conduct, to commit battery. The tort of assault exists to protect individuals not only from actual physical harm but from the fear of physical harm.[^4] To prove assault, a plaintiff must show that the defendant intentionally created the apprehension of imminent harmful or offensive contact.[^5]
[21] Ana and Ilinca allege that Liviu assaulted them on March 26, 2005 and on other occasions, by threatening to kill them or seriously hurt them. If they prove that these incidents took place, and that they reasonably feared that he would harm them, then Liviu would be liable for assault.
Breach of fiduciary duty
[22] Parents are obliged to act in their children’s best interests and not exploit the power and authority they hold over them.[^6] They have a wide discretion in the performance of their duties as parents, but this does not extend to willfully inflicting personal injuries beyond the limits of reasonable parental discipline. Physical abuse of a child is a breach of the parent’s fiduciary obligation to protect and care for their children.[^7]
[23] Ana and Ilinca allege that Liviu physically, verbally and emotionally abused them, and that this constituted a breach of his fiduciary duty to them as a father. To succeed in this cause of action, they must prove that he committed the acts alleged and these acts did not fall within the range of reasonable parental discipline.
Negligence
[24] A person is negligent if they owe a duty of care to another person, they act or fail to act in accordance with that duty, and the other person suffers harm as a result.[^8]
[25] Ana and Ilinca allege that Liviu breached his duty of care towards them, as a parent, through acts of verbal, physical and emotional abuse, and that this caused them both physical injuries and psychological harm. To succeed in this cause of action, they must again prove the acts they allege, that these acts breached Liviu’s duty of care toward them, and that the acts caused them injuries that may and should be compensated through an award of damages.
Intentional infliction of mental distress
[26] The tort of the intentional infliction of mental distress arises when a defendant engages in flagrant and outrageous conduct calculated to produce harm, which results in a visible and provable injury such as a recognized psychiatric illness.[^9]
[27] Ana and Ilinca allege that Liviu terrorized them and isolated them from their extended family and their peers and that, as a result, they suffer from depression, anxiety and post-traumatic stress disorder (“PTSD”). If they can prove that this conduct occurred, that it was intentional, and that it caused them to have a recognized psychiatric illness, then they will have made out a claim for intentional infliction of mental distress.
Wrongful imprisonment
[28] A person wrongfully imprisons another if they deprive them of liberty against their will, either through physical or psychological means.[^10]
[29] Ana and Ilinca allege that they did not feel safe in the Calin home, yet felt compelled to remain because Liviu isolated them socially and undermined their sense of self-worth. To prove that this amounted to unlawful imprisonment, they would have to show that the acts they alleged occurred and that the situation led them to be deprived of their liberty.
(b) The burden of proof and the parties’ overall credibility
[30] Most of the abuse alleged by Ana and Ilinca took place when they were alone with him or with their mother. Since Doina is no longer alive, the only direct witnesses to most of the alleged incidents are the plaintiffs and the defendant. The plaintiffs’ maternal grandmother Florica Chira testified that she also witnessed certain incidents. The credibility of these four central witnesses – Ana, Ilinca, Liviu and Mrs. Chira - accordingly plays a significant role in this trial.
[31] The plaintiffs have the burden of proof. They must establish, based on the evidence at trial, that it is more likely than not that what they allege did in fact take place. If the evidence before me is equally consistent with an event having taken place or not having taken place, I cannot conclude that it occurred.
[32] If I find that Ana and Ilinca have not met the standard of proof with respect to some incidents they describe, this does not necessarily mean that I think they are lying. They are describing events that took place when they were children and teenagers. The most recent incident took place fourteen years ago. The earliest took place almost thirty years ago. Given the passage of time and the fallibility of human memory, some events may simply be impossible to prove to the standard required if I am to hold the defendant legally responsible for them.
[33] Dr. Rakesh Jetly, a psychiatrist who assessed the plaintiffs in late 2017, concluded that they both suffer from PTSD. While I will deal with whether I accept this diagnosis later in these reasons, for now I can say that I accept his opinion on the relationship between PTSD and memory. Dr. Jetly stated that the worst and best memories generally fade over time. Because the person with PTSD is re-experiencing the emotions associated with a past event, their traumatic memories seem more vivid. But PTSD does not improve a person’s ability to remember. Based on this evidence, whether or not Ana and Ilinca have PTSD, they are just as likely as any other witness to reconstruct details of events that they may remember vaguely or imperfectly.
[34] I generally found Ana and Ilinca to be sincere. For the most part, I believe that they were honestly attempting to recall what happened to them. Some of what they described, however, was contradicted by other credible witnesses. They also gave materially different accounts of some incidents. Both plaintiffs, but in particular Ilinca, hold their father responsible for all of the disappointments and frustrations they have experienced as adults. This coloured their testimony.
[35] There were also serious and numerous inconsistencies between the plaintiffs’ evidence at trial and at their examinations for discovery in February 2017. In particular, at trial Ana described much more violent physical acts by her father – beatings using his belt – that she did not mention at her discovery. They both sometimes recalled incidents that they did not mention at all prior to trial. Both plaintiffs claimed to have a better recollection of events now because they have had more time to think about what occurred. I do not accept that Ana and Ilinca’s memory has improved over time or that they were surprised by the questions asked of them at discovery. Where the plaintiffs’ accounts at trial of specific incidents differed significantly from their earlier evidence at discoveries, I prefer the discovery evidence.
[36] Ilinca’s testimony about some events was vague. She admitted that she may have confused the details of some incidents, because Liviu slapped, punches or beat her many times. This affects my ability to accept the accuracy of some of her evidence.
[37] The evidence overall showed that the plaintiffs were not totally isolated from their peers or excessively controlled throughout their childhood and adolescence. They had friends and a reasonable amount of personal freedom, especially from 2002 onward. This contradicted a central narrative of the plaintiffs’ case.
[38] As a result of the inconsistencies and vagueness of some of their evidence, their predisposition to believe the worst of their father, and the evidence that contradicts some of their testimony, I conclude that Ana and Ilinca have reconstructed some events that they do not recall clearly and that their description of these events were not always reliable. In argument, their lawyer acknowledged that some incidents were “family folklore”. I understand this to mean that Ana and Ilinca are not testifying about what they actually remember about certain events, but repeating the same accounts they have told themselves and others over many years. They believe that these accounts are true. But in order for me to find that the plaintiffs have proved that their father behaved in a way that makes him legally liable, I must be persuaded that their evidence is based on genuine recollection as opposed to the memory of a memory, tailored over time to suit a certain narrative.
[39] Mrs. Chira, Ana and Ilinca’s maternal grandmother, testified at length. She saw the Calin family on a daily basis when they lived in Bucharest and stayed with them for months at a time after they moved to Canada. She was therefore in a unique position to comment on the interactions between the plaintiffs and the defendant. At trial, she said that she witnessed incidents where Liviu hit and otherwise physically abused the plaintiffs as well as their mother.
[40] The defence argues that Mrs. Chira’s testimony is untrustworthy because she wants to help her grand-daughters. I do not find that her lack of neutrality compromised her testimony to the point where I should disregard it entirely. For reasons I will set out in detail below, however, I conclude that some of her evidence is unreliable.
[41] Finally, I do not find Liviu’s testimony to be consistently reliable. He acknowledged that some of the confrontations and incidents described by the plaintiffs occurred, but denied that he hit them or mistreated them physically. His evidence was sometimes implausible. He acknowledged that he got angry over trivial events, such as a comment by one of Ilinca’s friends or the way that the plaintiffs had peeled potatoes, but denied that he ever acted on that anger.
[42] I cannot accept Liviu’s denial of any physical abuse because I accept the plaintiffs’ accounts about certain incidents prior to March 26, 2005 as credible. I also largely accept their account of what happened that day, which reinforces the plausibility of their allegations of earlier physical violence. In my view, Ana and Ilinca would not have left their family home with no more than the clothing on their backs if they had not had a violent confrontation with their father and feared, based on his past behaviour, that he would abuse them further. I must therefore accept their evidence that Liviu slapped and hit them, pulled them by their hair, and threatened them at various times between 1994 and 2005, over his denial that he ever used excessive force against them.
[43] I reject Liviu’s suggestion that Ana and Ilinca invented their account of childhood abuse after March 26, 2005 because they wanted more personal freedom. A former boyfriend of Ana testified that she disclosed abuse to him prior to 2005. I accept this evidence. Both plaintiffs reported a history of incidents to the police on March 27, 2005, and later to university counsellors. Although their prior consistent statements do not prove that specific incidents occurred, they do refute the claim that the allegations were fabricated after the fact.
[44] Given the credibility issues affecting the witnesses to most of the incidents alleged by the plaintiffs, I have no choice but to review each specific event and determine whether or not it has been proved.
(2) What occurred in the Calin household
[45] In determining what occurred in the Calin household, I will consider three time periods: the period from 1986 to 1994, when the family lived in Romania; the period from 1994 to October 2000, when Doina died; and the period from Doina’s death to the girls’ departure from the family home in March 2005.
(a) The first period: 1986 to 1994 in Bucharest
[46] Ana and Ilinca spent their early childhood in Bucharest. Liviu and Doina met in 1985 and got married later the same year. Liviu worked as an engineer and Doina had an administrative position with the Romanian government. The Calin family initially lived in the villa where Liviu had grown up with his family. They moved to a condominium when the children were about four years old. Doina’s parents, the Chiras, lived nearby. Mrs. Chira testified that she saw the family almost every day.
[47] In 1993, following the fall of the communist government in Romania, Liviu and Doina decided to immigrate to Canada. While the family waited for a visa, Doina left in January 1994 for a three-month internship in Washington D.C. funded by the Romanian government. The remaining members of the family moved in with the Chiras, as the Calins’ condominium had been rented out in anticipation of their move to Canada. The original idea was that the family would travel together to Toronto after Doina returned from Bucharest. In the end, Liviu, Ana and Ilinca travelled from Bucharest to Toronto on March 15, 1994, where Doina joined them in Canada a few weeks later.
[48] At trial, Ana and Ilinca each stated that they recalled fearing their father as long as they could remember, and described some particular incidents that they say occurred in Romania when they were between four and eight years of age. I will review each of these specific incidents and then deal with the plaintiffs’ broader allegations about Liviu’s conduct during this period.
The incident in the park
[49] Five witnesses testified about this incident: Ana, Ilinca, Liviu, Mrs. Chira and Aurel Pavel, a family friend.
[50] At trial, Ana and Ilinca each testified that, when they were four or five years old, they recalled an outing in a park in Bucharest with the Pavel family. While Ana, Ilinca and the Pavels’ daughter Jacqueline were playing together, they wandered off into the woods. When they returned, their parents were upset because they did not know where the children had gone. According to Ilinca and Ana, Liviu was furious, swore at them and picked up a stick and began to beat them, while Doina was hysterically asking him to stop. Both plaintiffs said they recalled feeling hurt and humiliated. They also both testified that they recalled feeling angry, because they received a corporal punishment but Jacqueline did not.
[51] Ilinca and Ana’s evidence about this incident at trial differed materially from what they said during their examinations for discovery in February 2017. At her discovery, Ilinca testified that she did not remember if Doina was present. Ana did not mention the incident at all, even though she was asked to provide her recollection of every episode of physical abuse by Liviu.
[52] Liviu recalled that the children wandered off and that he, Doina and Jacqueline’s parents were very worried because they did not know where they were. When the children re-emerged from the woods, he admits that he was angry with them and scolded them. He denied hitting them or threatening to hit them.
[53] Aurel Pavel had a limited recollection of events that took place 35 years ago, but recalled one or more family outings to a wooded park on the outskirts of Bucharest. He did not recall that Liviu ever engaged in physical or verbal abuse of his daughters.
[54] Ana and Ilinca have failed to prove that Liviu beat them during this incident. Mr. Pavel’s evidence actively disproves their account. In my view, Mr. Pavel would have remembered an incident where his friend beat his children with a stick while enraged. Although he and Liviu were friends when they both lived in Romania years ago, I have no reason to think that Mr. Pavel’s evidence was biased or inaccurate. I therefore accept Liviu’s evidence, corroborated by Mr. Pavel’s evidence, that he did not beat Ana and Ilinca with a stick in the park when they were four years old.
[55] This brings me to Mrs. Chira’s evidence about this incident. In her examination in chief, she said that she accompanied the Calin family to the park that day. She said that, when Liviu beat the girls with a stick, they were angry, because they felt it was unfair that they were punished more harshly than their friend Jacqueline. This was odd since neither plaintiff had mentioned that their grandmother was there. When advised in cross-examination that Mr. Pavel would testify that the beating did not occur, Mrs. Chira admitted that she did not actually witness it, but was told about it after the fact.
[56] Obviously I must reject Mrs. Chira’s testimony about what occurred in the park because it is based entirely on hearsay. I am also forced to consider the overall reliability of Mrs. Chira’s evidence. Generally speaking, I found her to be an articulate witness who was capable of making admissions where warranted. Considering her evidence on this point and other points, however, I conclude that her account has been influenced by her desire to support Ana and Ilinca and by discussions that she had with them about the events that give rise to this lawsuit.
[57] Mrs. Chira denied that she had any such discussions. I do not believe this. The detail about the plaintiffs’ emotional reaction to their punishment in the park – their anger that Jacqueline did not get beaten - is an insight that Ana and Ilinca, at the age of four, would not have shared with their grandmother. Indeed, they would not have had the opportunity to do so, because the person who apparently described the incident to Mrs. Chira was her daughter Doina. This means that Ana and Ilinca must have shared their account with their grandmother at a much later date, in the context of reviewing the history of their relationship with Liviu. Indeed, her testimony about other evidence makes it clear that she has discussed the events at issue with one or both of the plaintiffs.
The stuffed-toy incident
[58] Both the plaintiffs and the defendant recalled an incident where Ilinca held her stuffed toy over the kitchen stove and it caught fire. This occurred in the villa where the Calins lived until the girls were four years old. Liviu ran into the kitchen to put the fire out. The question is what followed.
[59] According to Ilinca, Liviu screamed at both girls, calling them idiots and imbeciles. He pushed Ilinca onto the bed, pinching her earlobe and slapping her cheek and ear. Doina attempted to intervene, to no avail.
[60] Ana’s account was different and more elaborate. She said that Liviu came into the kitchen screaming and swearing, and threw the stuffed animal against the door, which then caught fire. He then shoved the girls out of kitchen and began smacking Ilinca around. He tried to put the fire out with a broom and then hit both girls with it. According to Ana, he had Ilinca by the throat, on the bed in the living room, until Doina came in and tried to stop him.
[61] Liviu denies that he reacted violently that day. He testified that, when he entered the kitchen, the door had already caught fire after Doina had thrown the burning toy on the floor. He said that he put the fire out, then left the kitchen to continue tutoring a student in another room.
[62] I have trouble accepting that a father would react so calmly to the discovery that his four year old children had set fire to the kitchen. Having weighed the plaintiffs’ accounts, however, I cannot accept their allegation that he beat them.
[63] The plaintiffs offered inconsistent and conflicting events of what happened. Ilinca did not mention that Liviu hit her with a broom, or that he hit Ana at all. I would have expected Ilinca to remember this if it occurred. I also do not understand how Ana could have seen what Liviu was doing in the living room with Ilinca, given the layout of the residence. I infer that she is describing not what she saw, but what Ilinca told her had occurred at some later date. Ilinca’s description of what occurred, and her certainty about how much she could remember, was different at discovery than at trial.
[64] In my view, Ana and Ilinca are not testifying from an actual memory of the event. It is impossible for me to determine if either of their accounts are reliable. They have therefore not proved this particular incident.
The door-knocking incident
[65] Both plaintiffs testified about an incident that took place when they were seven or eight years old. They each said that Liviu left the apartment leaving the girls alone there. Prior to leaving, he told them not to let anyone in if they heard knocking. He left but then returned a few minutes later and knocked on the door, pretending to be a neighbour. When the girls opened the door, Liviu tore into them, pulling their hair, kicking them, slapping them, screaming at them that they were idiots.
[66] Liviu testified that both he and Doina were present during this incident. He said that they both told the plaintiffs not to answer the doors to strangers, and both disguised their voices to try to convince them to open the door. He denied that they were punished when they did so.
[67] Neither Ana nor Ilinca mentioned this incident during examinations for discoveries even though they were asked to describe any event they were relying on in their lawsuit against Liviu. As already mentioned, I do not accept that the plaintiffs’ recollection of events is better now than in 2017. I therefore find that they have not proved this allegation.
The incident involving the broken glass
[68] Ilinca recalled that, when she was about five years old, she broke a glass in the middle of the night and tried to hide what she had done by flushing the shards down the toilet. When Liviu found the pieces of the broken glass in the toilet, he demanded to know what had happened. When Ilinca admitted that she was responsible, she says that Liviu first pulled her hair then made her kneel on the floor on broken walnuts or chestnuts for about an hour.
[69] At her examination for discovery, Ilinca had no memory of Liviu pulling her hair, even when asked specifically about this. Her account of the defendant’s actions changed further during her testimony at trial. During her evidence in chief, she did not mention having been slapped. In cross-examination, she first stated that she was “probably” slapped and then said that she definitely was slapped hard a couple of times in the face and maybe on the ear. Ilinca also testified, in cross-examination, that she recalled seeing blood on one of her knees as a result of kneeling on the broken nut-shells. She did not mention any bleeding during her evidence in chief.
[70] When asked about the discrepancies in her description of the incident at her examination for discovery and at trial, Ilinca stated that her account during cross-examination was accurate. She also said, at the outset of her cross-examination, that she had retained the same memory of these events throughout her life. Both of these statements cannot be true.
[71] I conclude that Ilinca does not have a clear recollection of this incident. I am not satisfied that her account has been proved on a balance of probabilities.
Other allegations against Liviu during this period
[72] Ana testified that Liviu made her kneel for hours on the floor when she was three or four years old as a punishment for sucking her thumb. She did not provide any details of where this occurred or how often. Liviu acknowledged that the plaintiffs were punished by being made to kneel in the corner on at least one occasion, but denies that this would have lasted any length of time. I accept his testimony on this point. I do not accept Ana’s evidence that she was required to kneel for hours as she claimed, given the issues with her testimony about other incidents during this period.
[73] Ana also testified that Liviu had slapped both her and Ilinca while the family was living in the condominium. She said that he had been beating Doina and swearing at her because of how she had cleaned the fridge. She testified that Liviu held Ilinca up by the throat. She did not mention this detail during her examination for discovery. Ilinca did not mention this incident at all either at discovery or at trial. Again, I would not expect Ilinca to remember everything that Ana remembers or vice versa. The scene described by Ana, however, is one that I would expect would stick out in Ilinca’s memory.
[74] Liviu denied that this incident occurred. He testified that, when they lived in Bucharest, Doina did the cooking and he did the cleaning, including cleaning the fridge.
[75] Given the discrepancies between Ana’s account of the alleged incident at discovery and at trial, Ilinca’s failure to mention it at all, and Liviu’s denial, which I accept, the plaintiffs have not proved this incident.
[76] Both parties testified at some length about the relationship between the Calins and Doina’s parents and grandparents while they lived in Bucharest. The plaintiffs said that Liviu was unkind towards his father-in-law Augustine (“Gusti”), who had hemiparalysis following a stroke. Liviu acknowledged that his relationship with Gusti deteriorated in 1994 when the Calins moved in with the Chiras. He said that Gusti favoured Ana over Ilinca and that Mimi, the plaintiffs’ great-grandmother, slapped Ilinca on the face while the Calins were living with the Chiras in early 1994. According to Liviu, it was these incidents that made him decide to move to Canada a few weeks earlier than originally planned.
[77] I reject the plaintiffs’ suggestion that Liviu moved the family to Canada earlier than originally planned for some nefarious motive. I accept his testimony that the exact date of departure had not been finalized when Doina left for Washington, because it depended in part on when the family got a visa allowing them to immigrate to Canada. Tension between him and his father-in-law led him to leave Romania shortly after he got the family’s visas in February 1994. There is no credible evidence that Liviu did this in order to alienate Doina from her parents or that he fabricated a reason to leave Romania, or that he took the girls away without given them a chance to say good-bye to their grandparents.
[78] In reaching this conclusion, I rely in part on letters exchanged between Liviu and Doina in early 1994. These letters are affectionate and newsy. In Liviu’s letters in January and February 1994, he told Doina how her grandmother apparently slapped Ilinca, and that the tensions with Gusti made continuing to live with his in-laws impossible. I do not believe that Liviu simply invented these events in his letters to Doina; there would be no point in him doing so, since Doina could have learned about any misrepresentations from her mother. Based on the plaintiffs’ description of their mother’s protective nature, I also do not accept that she would have left them in their father’s care for three months during her internship in Washington if she thought they would be at risk of any harm.
[79] Mrs. Chira testified that she was scared of Liviu and so was careful to write letters that would not offend him. I do not accept this. Her letters to the Calins in 1994 and 1995 do not contain a hint of fear. They are long and affectionate. Their tone does not suggest that Mrs. Chira was guarded or holding things back to avoid displeasing Liviu. The letters are at odds with the plaintiffs’ contention that Liviu was on poor terms with Mrs. Chira at that point in time.
[80] During her examination, Mrs. Chira was asked about any incidents she witnessed while the Calins lived in Bucharest. Aside from the incident in the park which I have already mentioned, Mrs. Chira did not say that she witnessed any physical abuse, or any insults or put-downs, by Liviu towards the twins from the time they were four to eight years old.[^11] She saw the Calins almost every day and had a close relationship with her daughter, who was an only child. She admitted in cross-examination that both Doina and Liviu were very loving parents during this period of time.
Conclusions on the first period
[81] Ana and Ilinca have not proved any incidents of physical or verbal abuse by their father between 1986 and 1994, or any other conduct that would give rise to liability.
(b) The second period: March 1994 to November 2000
[82] When the Calins first arrived in Canada in March 1994, they lived in Toronto. Liviu took a job as a building superintendent and did some part-time computer programming work while looking for permanent employment. Ana and Ilinca were enrolled in a local public school for the rest of the 1994 school year. In summer 1994, the family moved to another apartment and the plaintiffs switched schools.
[83] The plaintiffs both testified that going to school in Canada involved a serious adjustment and that they did not feel that they fit in with their new classmates. They denied however that the move to Canada was traumatic.
[84] In January 1995, just after the plaintiffs’ ninth birthday, the Calin family moved to Ottawa where Liviu had secured a job with a Mosaid, an engineering firm. He remained with Mosaid until December 1996 when took a position with Nortel. Liviu testified that his main motivation for the transfer was Nortel’s benefits package, which included coverage for braces for Ana and Ilinca. Liviu was ambitious and worked long hours.
[85] Doina looked for work but was initially unable to get a full-time job, so enrolled at the University of Ottawa to get her MBA while working part-time. She secured a permanent position with Nortel in January 1997. She completed her MBA in 1998.
[86] The Calin family lived in an apartment on Carling Avenue from January 1995 to 1999. Ana and Ilinca attended a local public school until they completed middle school in 2000. In 1999, the family bought the Kanata house. In September 2000, when they were 14 years old, Ana and Ilinca began high school.
[87] Mrs. Chira visited the Calins in Canada in 1995, 1996, 1998 and 1999. Each time she stayed with them for a period of three or four months, overlapping the plaintiffs’ summer break. During her trips in 1995, 1996 and 1998, she travelled with Doina, Ana and Ilinca to California to visit her sisters, Vicky and Lenuca, and their families. Liviu did not come on these trips. He did however go on a trip to Montreal with Doina, Ana and Ilinca in the summer of 1997, and on a family trip to San Francisco in early 1999.
[88] In late 1999, Doina was diagnosed with cancer. Mrs. Chira returned to stay with the family while she received chemotherapy and other treatment. Doina was in and out of hospital for almost a year. The treatment of her cancer was ultimately unsuccessful and she died in October 2000.
[89] Ana and Ilinca allege that Liviu physically and verbally abused them frequently between March 1994 and October 2000. I will deal with each of these alleged incidents in turn.
English lessons
[90] Both plaintiffs testified about English lessons given to them by Liviu while they were living in Toronto, before Doina’s return from Washington.
[91] Ilinca stated that, if she and her sister did well during these lessons, they would get stickers. If not, Liviu would slap them on the face, pinch their ears, pull their hair, kick them under the table or squeeze their legs. In cross-examination, Ilinca claimed that she was punished nearly daily, but then acknowledged that she could not recall how often these lessons took place.
[92] Ana also testified that the plaintiffs would get stickers if they did well during the English lessons, but said that Liviu would spank them if they did not and tell them they were stupid.
[93] Liviu acknowledged that he gave the plaintiffs English lessons when they lived in Toronto, but denied that he ever hit, spanked or otherwise disciplined them if they got answers wrong.
[94] Eugene Aldea, a friend of the Calins, testified about his observations when they lived in Toronto in 1994. He and his family saw the Calin family every day or every second day in the months after they first arrived in Toronto. He said that he never saw Liviu engage in any physical or verbal abuse of the plaintiffs or even raise his voice to them. He described him as an attentive father.
[95] Mr. Aldea was an independent and credible witness. His evidence does not however assist me in determining what occurred during their English lessons with Liviu, because Mr. Aldea was not there when they took place. His account of Liviu’s parenting while the family was with others is not incompatible with the plaintiffs’ allegations about their father’s actions when they were alone.
[96] Although the plaintiffs were only eight years old at the time, I believe their overall account of these incidents. As a result, I find that they were spanked or otherwise subject to minor physical discipline when they did not perform to Liviu’s expectations during these English lessons. I am not able to determine how many times this happened. When Ilinca said that the lessons took place a couple of times a week, this was clearly a guess rather than an actual recollection.
Kneeling incident in Montreal
[97] Ana recalled a trip to Old Montreal with her grandmother, her parents, and Gabriel Craciunescu, an old family friend. She and Ilinca did not want to play with Mr. Craciunescu’s daughter. To punish them, Liviu forced the plaintiffs to kneel on the ground. Ana testified that she was ashamed by having to do this in public.
[98] Mrs. Chira corroborated this account. She recalled that, during a visit to Montreal, Ana and Ilinca were not playing with the daughter of a family friend. Liviu punished them by having them kneel on the dock for three to five minutes while insulting and shaming them.
[99] Liviu denied that he ever forced Ana and Ilinca to kneel in public as they describe. Mr. Craciunescu, the family friend who supposedly witnessed this event, testified but did not recall any incident in Old Montreal where the plaintiffs were made to kneel. He stated that he never saw Liviu engage in any physical or verbal abuse of the plaintiffs or even raise his voice when they misbehaved. Mr. Craciunescu was a credible witness. Although he has known Liviu for many years, I have no reason to think he was biased.
[100] Ana and her grandmother focussed on the same element during this incident, the feeling of shame at being made to kneel in public. This suggests that they discussed their evidence prior to trial and undermines their credibility. I also note that Ana did not mention this incident during her examination for discovery and Ilinca did not mention it.
[101] I conclude that the alleged incident in Old Montreal has not been proved.
Phone call with Andrea in 1997 or 1998
[102] Ana, Ilinca and Mrs. Chira all testified about an incident that took place in the summer of 1997 or 1998, when the plaintiffs were eleven or twelve years old. During a phone conversation, Ilinca’s friend Andrea Ghazzawi said something unflattering about Liviu.[^12] After the phone call, he verbally and physically attacked one or both plaintiffs.
[103] Liviu acknowledged that, during a phone conversation with Andrea, she said he was “slow”. After hanging up, he asked Ilinca how Andrea got this impression and Ilinca admitted that Andrea’s comment was based on something she had said. Liviu denied that this made him lose his temper and physically or verbally abuse either Ilinca or Ana. He said that, in response to Ilinca’s perceived misbehaviour, Doina cancelled plans for a trip to California.
[104] I do not believe Liviu’s account about what occurred after the phone call with Andrea. At trial, Liviu spoke at length about his academic achievements and professional success. He is a proud man. As a result of Andrea’s comment, he thought that his twelve year old daughter had told her friend that he was stupid. I accept the evidence of the plaintiffs and their grandmother that he was angry and lashed out physically and verbally.
[105] Having reached this conclusion, however, I cannot determine what exactly happened in light of significantly divergent accounts, none of which is entirely credible.
[106] I do not think that Ilinca remembers this incident with any clarity. She recalled that she had a telephone conversation with Andrea that Liviu overheard. Three other witnesses, including Liviu himself, testified that he spoke directly to Andrea. Ilinca testified that, after the call ended, Liviu said: “Do you think I’m fucking slow?” As she later acknowledged, he could not have used these words as he spoke in Romanian at home and she heard him use a swear word in English for the first time in 2005. Ilinca did not recall that her grandmother was present. Finally, Ilinca’s evidence at trial was materially different than her evidence at her examination for discovery. In 2017, she denied that Liviu punched her during this incident when specifically asked whether he had done so.
[107] Ilinca attempted to explain the inconsistencies in her testimony by saying that Liviu’s physical abuse at various times involved slapping, punching and hair-pulling, and that she was describing “an emotional memory”. She said that she was not recalling one particular event but rather an amalgamation of events. I accept that, at some point, Liviu hit and slapped her with a spiral notebook, but I cannot conclude that this happened in the course of this particular incident.
[108] Ana stated that she remembered this incident “very clearly”, but her account at trial was different than her account at discovery. At discovery she did not mention that Liviu used a belt to hit Ilinca. She denied that she was adding this detail to make the incident seem worse than it was, saying she had just focussed more in preparation for trial. I do not believe that she would have forgotten this significant detail when questioned about it two years earlier. I do not find her testimony about this incident reliable.
[109] Finally, Mrs. Chira described an incident that was much more violent than the accounts provided by Ilinca and Ana. She said that Liviu hit both Ana and Ilinca on the face with his hand and then beat them both with his belt, and that he also hit Doina with his belt when she tried to intervene. She also testified that, when she tried to get him to stop, Liviu said: “I’ll break their necks, throw them from the apartment and I’ll jump too.”
[110] Mrs. Chira is the only witness who testified that Liviu struck anyone other than Ilinca or that he threatened to kill his family members and commit suicide. For reasons that I will return to below, I do not accept that Liviu made the threat reported by Mrs. Chira or that, if he did, that she took it seriously. I am moreover unable to reconcile the rest of her account with Ana’s account. Mrs. Chira testified that both plaintiffs had bruises and marks all over their bodies as a result of this beating. If Liviu beat Ana, much less beat her with a belt causing the injuries described, I would expect her to remember it.
[111] I conclude that Liviu lost his temper and struck Ilinca following his phone call with Andrea. I am unable to conclude, on the basis of the contradictory accounts provided by Ilinca, Ana and Mrs. Chira, that Liviu struck Ana, or that he used a belt to beat Ilinca.
The Lebanese Festival incident
[112] According to Ana, another incident occurred in 2000 when she and Ilinca returned home after going to a Lebanese festival with Andrea and her father. She testified that Liviu was angry and began screaming that they were disrespectful and inconsiderate, pulled her hair and slapped her face. He then threw her on the bed and lay on top of her while continuing to slap her and hit her with a belt. Doina tried to stop him and he pushed her.
[113] Mrs. Chira’s account of this incident is consistent with Ana’s account, except she says that Liviu kicked, slapped and pulled the hair of both plaintiffs. She did not mention that he used a belt to hit Ana.
[114] Liviu admitted that he lost his temper when the plaintiffs arrived home late one night after going to a cultural festival in August 2000. He said that Doina became hysterical when Ana and Ilinca did not come home on time because they had no way to reach them to ensure they were safe. Liviu did not want to go find them because he did not want to leave Doina, in case she had to go to the hospital. Liviu said that, when the plaintiffs finally arrived home, he yelled at them and sent them to their rooms. He denied that they were punished in any other way.
[115] In cross-examination, Liviu tried to justify losing his temper on the grounds that the plaintiffs’ tardiness caused Doina to become hysterical with worry. When he was shown that Mr. Ghazzawi’s phone number was written in the family agenda, Liviu said that the number was Mrs. Chira’s handwriting and that she had not shared it with him or Doina. I do not find it plausible that Mrs. Chira would fail to provide Liviu with Mr. Ghazzawi’s cell phone number if in fact he and Doina were frantically searching to ascertain their daughters’ whereabouts. It is much more probable that Liviu was upset by the plaintiffs’ late return because he thought they were disrespectful of his authority.
[116] Based on the overall accounts of the plaintiffs and Mrs. Chira, I find that Liviu lashed out at Ilinca and Ana, physically and verbally. His exact words and actions are however in doubt.
[117] At trial, Ana testified that, following this incident, she had belt buckle marks all over her back and upper arms and it was painful to sleep. At her examination for discovery two years earlier, Ana did not recall that Liviu hit her with a belt. At trial she again claimed that she remembered the incident more clearly, having forced herself to re-live the memories. In her words: “The more I think about this, the better I remember it.” As Dr. Jetly testified, this is not how memory works. Mrs. Chira moreover did not mention that Liviu used a belt. I cannot conclude that Liviu used a belt to hit Ana.
[118] Ilinca did not mention this incident at all during her testimony. I would not necessarily expect her to remember everything that her sister or her grandmother remembered. As I have already indicated, however, I would expect her to recall being beaten by a belt.
[119] Finally, this was another instance where Mrs. Chira testified about the plaintiffs’ feelings as a result of their father’s conduct. She said that Ana and Ilinca were “destroyed” and “devastated” by the incident because it was not their fault that Mr. Ghazzawi did not bring them home on time. The only way she could have gained this insight is by talking about the incident with the plaintiffs at some point prior to trial. This makes it impossible to fully trust her evidence.
[120] As a result of the contradictory accounts given by Ana and Mrs. Chira, their lack of credibility on key points, and the lack of corroboration by Ilinca, I am unable to reach any conclusion about the nature or severity of Liviu’s physical acts towards the plaintiffs on this occasion. I also cannot find that he threatened to kill them.
Ongoing physical abuse
[121] Ana and Ilinca testified that they were terrified of their father because he physically abused them on a regular basis. They did not offer any examples of physically abusive conduct from 1995 to 2000 beyond the specific incidents I have already reviewed.
[122] Mrs. Chira lived with the Calin family for extended periods of time from 1995 to November 2000. She visited for three or four months at a time in the summers of 1995, 1996 and 1998. She returned for almost a year beginning in late 1999, when Doina’s cancer was diagnosed, until shortly after her death in October 2000. She accordingly had ample opportunity to observe any abusive incidents. The only specific incidents of physical violence against the plaintiffs that she mentioned were those that followed the phone call with Andrea and their late return from the Lebanese Festival.
[123] Mrs. Chira produced a document which she said supported her claim of Liviu’s abuse of the plaintiffs. The document was a handwritten note signed by Doina on May 19, 2000, in which she appointed her mother as legal guardian of Ana and Ilinca if she became unable to care for them. In the document, Doina wrote: “I want my husband Liviu Calin to be obliged to let her [Mrs. Chira] take care for the children – he is too distress (sic) to take care of the children”. Mrs. Chira testified that Doina prepared and gave her this note on May 19, 2000, after telling her that Liviu had tried to persuade her to make him the sole beneficiary of her life insurance policy and, when she refused, had tried to suffocate her with a pillow.
[124] After hearing submissions from counsel, I admitted Mrs. Chira’s hearsay evidence about Doina’s statements to her on May 19, 2000. Having heard all of the evidence, I decline to give this testimony any weight. Based on her actions at the time, I do not accept Mrs. Chira’s explanation as to the reason why Doina prepared and gave her this document.
[125] According to Mrs. Chira, she saw Liviu beat his daughters with a belt all over their bodies and threatened to throw them off a balcony in 1998, then was told by her daughter that he had attempted to kill her in May 2000. She testified that she understood that, based on this document, Liviu would have been obliged to let the plaintiffs live with her. Despite this, she did not show Doina’s note to anyone who might have helped her to challenge Liviu’s guardianship of the plaintiffs, or take any steps to report her concerns about their safety to the police or a lawyer, either before or after Doina’s death. She did not at any point seek the assistance of acquaintances in Ottawa, or family members in Los Angeles whom Ana and Ilinca had visited regularly in the preceding years, to ensure that the plaintiffs had the means to leave their family home if they felt they were in danger.
[126] Mrs. Chira’s conduct is not consistent with a serious concern about her grand-daughters’ safety. She failed to take any steps to help them leave, either by intervening directly or asking someone else to do so on her behalf. This inaction is particularly puzzling after Liviu cut off contact with the Chiras in early 2001. If she feared that Liviu would seriously harm her only grandchildren, this should have prompted her to act. But aside from a single attempt to re-establish contact in 2002, she did nothing.
[127] Mrs. Chira testified that she felt she could not assist the plaintiffs because she was not a Canadian resident and spoke limited English. I was impressed by Mrs. Chira’s obvious intelligence and powers of persuasion when she testified at length during the trial. In my view, if she thought that Ana and Ilinca were in serious jeopardy, she would have tried to use the document Doina gave her to seek guardianship or, at the very least, told the plaintiffs that they could seek refuge with their cousins in California if Liviu became violent.
[128] Moreover, even if I accepted Mrs. Chira’s evidence about her discussion with Doina on May 19, 2000, this would not establish that Liviu committed any further acts of physical violence against the plaintiffs, beyond what I have already accepted as proved. The only purpose of the evidence would be to try to show that the defendant was a violent man.
[129] Based on the lack of evidence from Ana, Ilinca or Mrs. Chira about any further incidents of physical violence during this period against the plaintiffs, I reject their allegation about ongoing physical abuse in the Calin house from 1995 to 2000.
Social isolation and emotional abuse
[130] Both Ana and Ilinca allege that, during this period, Liviu isolated them by preventing them from socializing with other children their age and preventing them from participating in after-school activities. They also allege that they lived in fear, both because of the beatings they received and their father’s abuse of their mother. Ilinca and Ana testified that Liviu hit or otherwise physically abused Doina almost every day, even when she was fighting cancer.
[131] Liviu categorically denies any abuse of Doina or the plaintiffs.
[132] In support of his denial, Liviu has produced numerous affectionate cards and notes written to him by the plaintiffs throughout their childhood and adolescence. I do not place any weight on this evidence. It is equally consistent with a normal, loving relationship and a relationship where children seek to avoid punishment by telling a parent what he wants to hear.
[133] Liviu has also produced volumes of photographs, videos and other records showing Ana and Ilinca celebrating birthdays, Christmas and New Years with friends and family. There are photos and videos of Ana and Ilinca at a bowling alley, at the swimming pool, visiting Upper Canada Village, the Thousand Islands and the Toronto zoo, trick or treating, shopping at the mall, skiing, skating on the Rideau Canal, playing basketball, visiting a local art gallery and performing in the church choir.
[134] Happy photos and videos can mask abusive family relationships. A picture of a child smiling for the camera does not mean that all is well. This evidence accordingly does not disprove the plaintiffs’ allegations about the specific incidents of physical and verbal abuse by the father. The evidence is however at odds with their contention that their father deprived them of a normal childhood, controlled all of their activities and restricted their social interactions.
[135] I have already found that Liviu spanked or hit the plaintiffs on several occasions. He may have also struck Doina, although I conclude that these incidents were much less violent and infrequent than Ana and Ilinca allege. Liviu was working very long hours during this period. He was not home very often. When they were not in school, the plaintiffs spent most of their time with their mother and their grandmother. Their father’s violent outbursts undoubtedly had a broader impact on the plaintiffs than the physical injuries they caused in the short term. A child who fears a parent’s unprovoked rage behaves in a more guarded way. I cannot however conclude that Liviu’s conduct isolated Ana and Ilinca or prevented them from engaging in typical childhood activities during this period.
Doina’s death
[136] Ana and Ilinca both testified that their father did not prepare them for their mother’s death. They were very close to Doina. Although they realized she was very ill, no one had told them that her cancer was terminal. The plaintiffs both testified that, a day or two before Doina died, Liviu abruptly told them, in an elevator in the hospital, that this might be their last opportunity to speak to her. He then left them alone in the hospital cafeteria, without trying to reassure them. Both plaintiffs said that their mother’s death was a terrible shock, and that their father’s failure to give them more warning made it much worse.
[137] Liviu admitted that he did not tell the plaintiffs that their mother had terminal cancer until early October 2000, just before she died. He testified that Doina was reluctant to tell the plaintiffs about her prognosis. Ana confirmed that their mother did not want them to know about her prognosis, because she did not want to worry them. It is not clear to me how she got this understanding, but it is consistent with Mrs. Chira’s evidence.
[138] Doina’s death was a huge loss. The plaintiffs were deprived of their mother, whom they loved very much, at the age of fourteen. Liviu lost his long-time partner and Mrs. Chira her only daughter. When they testified about Doina’s passing, the grief of each member of her family was palpable, even nineteen years later. It is hard to imagine how anyone could have prepared Ana and Ilinca for what happened.
[139] As a matter of fact and law, Liviu is not liable for any shortcomings in how he handled this extraordinarily difficult event. He was not negligent in failing to warn the plaintiffs about the gravity of their mother’s illness or in communicating her imminent death.
Conclusions on the second period
[140] I conclude that, during this period, Liviu spanked or hit the plaintiffs during English lessons, struck Ilinca after the phone call with her friend Andrea, and struck both Ana and Ilinca after they returned from the Lebanese Festival. In my view, these actions were intentional and were either physically harmful to the plaintiffs or offended their dignity. They accordingly constituted civil battery.
[141] I also find that, in striking Ana and Ilinca, Liviu willfully inflicted injuries on them beyond the limits of reasonable parental discipline. This breached his fiduciary duty to them and was negligent.
[142] I do not find that Liviu wrongfully imprisoned the plaintiffs during this period. They have not established that he cut them off from all outside contact as they claim. I will consider whether Liviu’s actions during this period meet the test for intentional infliction of mental distress when I review the evidence with respect to their alleged injuries.
(c) The third period: November 2000 to March 26, 2005
[143] Ana and Ilinca continued to live in the Kanata house from November 2000 to March 26, 2005. They graduated from a local high school in June 2004. In September 2004, they both entered the biochemistry program at Carleton University.
[144] Liviu returned to Nortel after taking time off during Doina’s illness. At some point in 2001, he became depressed and went on long-term disability leave. He was still on disability leave in 2005.
[145] A few months after Doina’s death, Liviu became convinced that Mrs. Chira was undermining his relationship with the plaintiffs. He testified that he told them that they could return to Romania to live with her but, if they stayed with him in Canada, they could no longer remain in contact with her. The plaintiffs denied that this discussion took place. Either way, they remained in Canada, and Mrs. Chira no longer visited them or corresponded with them. In October 2002, she travelled to Ottawa and spoke briefly with Ilinca and Liviu by phone, but otherwise had no direct contact until after March 2005.
[146] In early 2002, Liviu began to date Nora Lacatus. Ms. Lacatus was also a Romanian immigrant. She worked as a lawyer before she and her husband opened a custom cabinet business in Ottawa. Ms. Lacatus’ husband died in 1999. After she and Liviu began seeing each other, she moved into the Calin family house some time in 2002. Later that same year, she and Liviu moved in together in a townhouse that they had purchased. He returned to the Kanata house from time to time.
[147] The plaintiffs travelled with Liviu to San Francisco in early 2001, and to P.E.I. later that summer. In the summer of 2002, when Ana and Ilinca were sixteen years old, they spent three weeks on holiday in France, Switzerland and Greece, staying with Liviu’s cousin Eric. Liviu did not accompany them on this trip.
[148] Ana and Ilinca allege that Liviu was abusive towards them, physically, verbally and emotionally, during the period from November 2000 to March 2005. I will again first consider the specific incidents alleged and then the plaintiffs’ broader claims.
Math lessons
[149] Ilinca and Ana both testified about math lessons in the basement of their house in Kanata after Doina’s death. They said that Liviu would make them do calculus or theoretical math problems that covered concepts they were not learning in class. Ilinca testified that if they could not answer or they made a mistake, Liviu would hit them or pull their hair or slap them. They would then be made to try again, and again would be punished if they could not answer correctly. According to Ilinca, “This would last as long as he felt like doing it.” Ana testified that Liviu hit her with a belt and that, on one occasion, she was so scared that she wet herself. She described the math lessons as torture.
[150] Liviu said that he helped the plaintiffs with their math homework occasionally when they were in high school. Initially he would review homework with them separately, but eventually set up a space in the basement so he could teach them together. He denied ever punishing them physically when they made mistakes.
[151] The plaintiffs’ testimony about the math lessons was credible. They each independently described the fear of making mistakes and Liviu’s insistence that they continue to work on problems that they were simply unable to do. Their description of the set-up in the basement was consistent with Liviu’s evidence. The plaintiffs’ accounts of what occurred were detailed and believable. I accept their evidence over that of Liviu, subject to some reservations about the severity and duration of the incidents.
[152] Ilinca recalled that the lessons continued every day or almost every day during all of grade 9 through to grade 11. Ana testified that Liviu beat her with a belt. This evidence is not plausible.
[153] By the time the plaintiffs began grade 10, Nora was either living with the Calins in Kanata or Liviu was living with her in their townhouse. Ms. Lacatus acknowledged she was working long hours at her custom cabinet business. She would however have witnessed at least some incidents if they happened as frequently as Ilinca said they did. Likewise, I am of the view that Ms. Lacatus would have noticed the after-effects of a beating involving a belt. Ilinca testified that she and Ms. Lacatus became very close and that she confided in her about her father’s abuse. Ms. Lacatus denied this. In further cross-examination, Ilinca admitted that she may not have told her about any abuse until March 26, 2005.
[154] The plaintiffs argued that Ms. Lacatus was not a credible witness. I will return to this later in these reasons. For now, I will say that I accept her evidence that she witnessed no physical abuse and was not told about any abuse by the plaintiffs at the time. Based on this evidence, and Liviu’s departure from the house later in 2002, the math lessons could not have taken place for as long a period as claimed by the plaintiffs.
[155] As a result I conclude that the lessons took place from time to time over several months in 2001-02. I find that Liviu repeatedly slapped and hit the plaintiffs, and pulled their hair, when they made mistakes.
IEEE conference in San Francisco
[156] In 2001, Liviu brought the plaintiffs with him to a conference in San Francisco. Ana testified that, during this trip, Liviu abused them physically and emotionally.
[157] Ana said that, one day during the conference, she and Ilinca were doing homework in their room with the television on. Liviu returned during a break and became enraged that they were not focussing sufficiently on their studies. According to Ana, he beat her with a belt. She recalled that this incident did not last very long because Liviu had to return to the conference.
[158] Ana also testified that Liviu became angry with the plaintiffs during a walk around the city with a colleague and ordered them to return to the hotel unaccompanied. Ana said that she and her sister had never been to San Francisco before and this was a frightening experience. During dinner with this same colleague, Liviu spoke disparagingly about a female manager at Nortel and about women in positions of authority generally. Ana presented this as an example of how he would routinely imply that, as women, she and Ilinca were inferior to men. She recalled that Liviu’s colleague chastised him for his comments.
[159] Liviu denied beating Ana with a belt, or disciplining her physically in any way, during the trip to San Francisco. He admitted that he may have sent the plaintiffs back to the hotel on their own during a walk, but denies he did so because he was angry or that he compromised their safety in doing so. He pointed out that the plaintiffs had travelled to San Francisco earlier with Doina. He denied speaking disparagingly about women.
[160] Radu Avramescu, the colleague who was present during the walk and the dinner, testified at the trial. He did not recall any argument between Liviu and the plaintiffs during the walk or any negative comments about women at the dinner.
[161] I cannot accept Ana’s account of what occurred during the San Francisco trip. Her recollection of the walk and dinner were contradicted by Mr. Avramescu, an independent and credible witness. She did not mention being beaten with a belt at her discovery. Ilinca did not mention the incident during her testimony.
[162] I also find it difficult to reconcile Ana’s allegations about her father’s generally disparaging comments about women with the evidence of his support of Doina’s completion of an MBA, the evidence of Iuliana Marga, a former colleague at Nortel, or the absence of any mention of disparaging language or gestures by Ms. Lacatus, who struck me as a very independently minded woman. Ana and Ilinca both testified that Liviu made insulting comments about them personally, calling them ugly and saying they would never attract husbands. I accept their evidence on this point. I am of the view, however, that Ana’s allegation about Liviu’s comments in San Francisco are an example of how she may have reconstructed events to impute the defendant with more extreme and consistently abusive conduct than the evidence otherwise indicates.
[163] I conclude that Ana’s allegations about the San Francisco trip are not proved.
PEI incident
[164] Ana testified that, during a trip to a public beach in P.E.I. in the summer of 2001, she did not want to swim because she was having her period. She said that Liviu forced her into the water and dunked her, holding her head underwater as though he was trying to drown her. Liviu denied that he did this. Ilinca did not mention any incident during the trip to P.E.I.
[165] I find it implausible that Liviu would have engaged in serious physical abuse of Ana in a public place. Liviu may have engaged in some rough-housing but I cannot conclude that he deliberately tried to injure Ana on this occasion.
Haircut incident
[166] Ana and Ilinca both described how their father lost his temper after they went to the hair dresser and got their hair blow-dried straight. They said that, after he picked them up from a local shopping centre, he struck them and hurled abuse in the car on the way home. He continued the physical abuse at the Kanata house. Liviu denied the incident.
[167] The plaintiffs’ evidence about what occurred was not entirely consistent. They had different recollections about their father’s conduct in the car and at home. Ilinca testified that Liviu threw her on a bed and beat her with a belt when they arrived home. Ana recalled that he dragged both plaintiffs by their hair to the downstairs powder room.
[168] Despite these inconsistencies, I accept the plaintiffs’ allegation that Liviu was angry when they had their hair straightened and punished them physically for it. They both recalled the name and location of the hair salon, the sequence of events and how Liviu chopped off part of Ana’s hair. This was the only instance when Ilinca mentioned being hit by a belt. I infer that she recalls this event because of the severity of the punishment she received.
[169] I conclude that Liviu hit or slapped the plaintiffs, beat Ilinca with a belt, and cut off chunks of Ana’s hair during this incident.
Ana dragged down stairs
[170] Ana testified that, on one occasion, she was alone with her father in his home office upstairs in the Kanata house. She said something that provoked him, and he slapped her face, dragged her down the stairs and into the garage by her hair, punched her in the stomach and threatened to hit her with a wooden beam. Liviu denied that this occurred.
[171] In my view, Ana’s account of this event was credible. At discovery, she also said that, at one point, Liviu picked her up by the throat and slapped her across the face. When confronted with this inconsistency, Ana said that she had a better recollection of this event during her examination. I accept her evidence on this point.
[172] I conclude that Liviu slapped Ana’s face, dragged her by the hair, punched her in the stomach, and threatened to hit her with a wooden beam.
Ilinca held up against wall
[173] Ilinca also described an incident that began when she and Ana were talking in Liviu’s office. She recalls that Ana said something disparaging about a friend of her father’s and he “lost it”, punched Ilinca in the stomach and then held her up against a wall by her throat. Liviu denied this incident.
[174] I do not accept the defence’s contention that two separate incidents could not have both been triggered by a comment made by Ana in Liviu’s office. I also reject the argument that Liviu could not have held Ilinca by the throat. Liviu is a tall, heavily built man. The plaintiffs are both petite women. In my view, he could easily support her weight against a wall with one hand.
[175] I nonetheless cannot accept Ilinca’s account of what occurred. Liviu testified that there was a mirror hanging on the wall where he allegedly held Ilinca by the throat, and the wall was configured differently than Ilinca described. I accept Liviu’s evidence as accurate.
[176] Ilinca acknowledged that her recollection was “blurry” and she could not really remember how this particular incident started. In effect this was another “emotional memory”, although she did not use this term. I think it likely that, at some point, Liviu did hold her up against a wall by the throat. I do not however conclude that the particular incident she described has been proved on a balance of probabilities.
Ilinca dragged down the stairs by her hair
[177] Ilinca testified at length about being punished for bickering with her sister in her bedroom. She said that Liviu grabbed her by the hair, dragged her across the floor and down two to three stairs. He then left her to return to the bedroom to punish Ana. Ana did not testify about this incident.
[178] During her examination for discovery, when describing this same incident, Ilinca stated that Liviu had also beaten her with his belt, bruising her so badly that it hurt to sit on the toilet. She did not mention being beaten at trial. When confronted in cross-examination with this contradiction in her evidence, Ilinca admitted that Liviu did not in fact hit her with a belt during this episode.
[179] Liviu acknowledged an incident where the plaintiffs’ squabbling woke him up from a nap. He remembered shaking Ilinca and slapping both plaintiffs’ bottoms.
[180] Given the material inconsistency in Ilinca’s account of this incident at discovery and at trial and Ana’s failure to remember it at all, I accept Liviu’s account of this incident. As a result, I find that he spanked both plaintiffs and shook Ilinca on this occasion.
Ilinca hit with a broom
[181] Ilinca testified that Liviu once hit her repeatedly with a broom on her side, back and arm. He was screaming and calling her names, telling her that she was dirty and worthless and that no-one would want to marry her. Ilinca said that, as a general rule, she never wore clothing that showed her bruises. After the broom incident, however, she wore a t-shirt so that the bruise on her arm was visible. Liviu noticed and said: “Why do you make me do this?”
[182] Liviu denied that he ever hit Ilinca with a broom.
[183] Ilinca’s account of this incident was supported by testimony by a high school friend, Nela Grebovic. She testified that, one day, she noticed that Ilinca had a bruise on her arm and Ilinca told her that Liviu had hit her with a broom because she did not clean the floor properly.
[184] For reasons I will detail further below, I generally give Nela’s evidence little weight. I accept that she saw a bruise on Ilinca’s arm. This corroborates Ilinca’s account of this incident to a limited extent. But if Ilinca had been beaten with a wooden broom as severely as she described, the bruising would have been much more extensive and noticeable. It also seems unlikely that Liviu, whom the plaintiffs described as intensely controlling, would have allowed Ilinca to go to school in short sleeves if she had any significant bruising.
[185] Ilinca’s recollection of this incident and Liviu’s words to her were basically believable. I conclude that Liviu hit Ilinca with a broom on the arm sufficiently hard to leave a bruise. In my view, however, she exaggerated the incident in her testimony.
Ana shut outside during winter
[186] Ana and Ilinca both testified that Liviu once punished Ana by making her stand outside the house during the winter in a short sleeve shirt and no shoes. Liviu denied this.
[187] I find the plaintiffs’ evidence credible despite some minor differences in how they described what Ana was wearing.
Coercion over academic choices
[188] Ana testified Liviu told her that she had to take computer science in high school or else she “would end up in a body bag shipped to Romania”. She also said that she got a scholarship for an international business program at Carleton, but he forced her to enrol in a biochemistry program instead.
[189] Based on her tone in giving this evidence, I do not find that Ana understood Liviu to be threatening to kill her if she did not take computer science. She did not specify how exactly he forced her to give up her business scholarship.
[190] Ana’s boyfriend at the time, Colin Kenwell, recalled that she wanted to study international business, but there was “pressure” from Liviu to go into a science program. As will be mentioned further below, Ana confided in Colin that Liviu had abused her emotionally and physically for years. Based on this, I infer that she would have told him if Liviu’s method of pressuring her to enrol in biochemistry included threats of physical harm.
[191] I do not find that Liviu coerced Ana into taking computer science in high school or enrolling in a biochemistry program in university.
The plaintiffs’ social isolation
[192] The plaintiffs testified that, after Doina’s death, he controlled all of their movements. He drove them to and from school and then supervised their homework and chores. He took them to their mother’s gravesite every day. He did not allow them to socialize with their peers, and that they were deprived of a normal adolescence because they feared what he would do if they disobeyed him.
[193] Before dealing with Liviu’s evidence about these allegations, I will review the observations of other witnesses with respect to events in the Calin household during this period.
[194] Ms. Lacatus testified about her involvement with the Calins beginning in 2002. She said that she had a good relationship with the plaintiffs, whom she described as polite, respectful and pleasant. She acknowledged that Liviu was strict and wanted them to focus on their studies instead of going to parties. She said, however, that she never perceived that Ana and Ilinca were scared of their father, and never saw Liviu yell at them or raise a hand against them.
[195] The plaintiffs’ counsel argued that Ms. Lacatus was not a credible witness, because she admitted that she did not want to be involved in the Calin family dramatics. This admission does not lead me to discount her testimony entirely. Her absence from the house for significant periods of time is a more serious limiting factor. Ms. Lacatus testified that she worked most days at her business and was absent from early in the morning until just after dinner. But even taking this into account, Ms. Lacatus’s description of the plaintiffs’ relationship with their father and her lack of observation of any physical or verbal abuse weighs against their contention that they were virtually prisoners in their own home.
[196] Colin Kenwell, who dated Ana in grade 12 and in first year university, and Justin Kurosky, who dated Ilinca beginning in 2004, testified about their observations during this period.
[197] Colin testified that, during his relationship with Ana, they discussed her family life. Ana told him that Liviu was physically and emotionally abusive, and had been throughout their childhood. On weekends, they needed to go home to call Ms. Lacatus from the home phone by a certain time every evening. If their father was coming home, they were anxious because they did not know what his mood would be like. They were a lot more comfortable when Liviu was at Ms. Lacatus’s house.
[198] Colin admitted that he would sometimes spend the night at the Calins when Liviu was not there. He also recalled that the plaintiffs had at least one party at the house. Colin said that he and Ana were sexually active beginning in September 2004. He did not mention ever seeing any physical signs of physical abuse on her body.
[199] Colin was a credible witness. I accept his observations about the Calin household in 2004 and 2005. His evidence does not establish that the plaintiffs were subject to excessive parental control during this period. Colin testified that he rarely saw Liviu at the house. This is not consistent with the idea that Liviu controlled all of the plaintiffs’ movements and activities. He did apparently impose a curfew. This was not unreasonable in the circumstances. Liviu also prohibited the plaintiffs from having their boyfriends stay overnight in his absence. This is again not an unreasonable rule, given the plaintiffs’ age and their living arrangements. Since she was ignoring this prohibition, Ana was understandably anxious about the prospect of Liviu’s unannounced arrival. This does not prove that she was terrorized by the defendant. It is equally consistent with a typical dynamic between a teenager and a parent.
[200] Colin’s lack of observation of any physical signs of abuse on Ana is inconsistent with any allegation of serious physical abuse in the year and a half prior to their departure from the Calin house in March 2005. Ana’s statements to Colin about her father’s past abuse also cannot be used to prove that the abuse occurred, but do rebut Liviu’s suggestion that the allegations of abuse were fabricated after the plaintiffs’ left the Calin house in March 2005.
[201] Justin met the plaintiffs in late 2004 and began dating Ilinca in January 2005. He visited the Calin home a few times. He met Liviu only once, briefly, and Ilinca did not tell him about any family issues prior to March 26, 2005. He noted however that the plaintiffs were always worried about where their father was. This by itself does not prove any abuse. Justin’s recollection of time spent with the plaintiffs at the Calin house is moreover inconsistent with their claim that they were socially isolated by Liviu.
[202] Nela Grebovic testified that Ana and Ilinca were not allowed to socialize very much in grades nine and ten, but had much more freedom in grades eleven and twelve, because Liviu had moved out of the house. She said that in these years, Liviu showed up at the high school at odd times to check up on Ana and Ilinca, or circled around the house with his car. Nela was allowed to visit the house when he was not there but boys theoretically were not. Nela recalled that there was a predetermined escape route from the Calin house in case Liviu showed up, which I presume was related to the prohibition on boyfriends at the house.
[203] I place no weight on Nela’s evidence about what occurred in 2000 and 2001, a period when she did not socialize with the plaintiffs. I also cannot accept her contention that Liviu was abusive in 2002 and 2003, because her belief does not seem to be grounded in any direct knowledge or observation. She admitted that the plaintiffs did not talk to her about their father, aside from the single discussion she had with Ilinca about the bruise on her arm. I have already noted that the primary example she gave of Liviu’s draconian rules –his prohibition on boys visiting the house when he was not there – was not unreasonable and was moreover not respected.
[204] Liviu denied that he exerted excessive control over the plaintiffs after Doina’s death. He noted that, in the period before he left on disability, he was working 12-14 hour days at Nortel. A year later, he left the house to live with Ms. Lacatus. He acknowledged that he drove the girls to and from school most days for a period of time. I infer that this could have occurred only for a few months, after he stopped working in 2002 and before he moved out of the Kanata house later that year. They also visited Doina’s gravesite almost every day in the first year. But after they went to the Maritimes in summer 2001, they stopped going so often. Ilinca admitted in cross-examination that Liviu might or might not drive them to school, depending on his mood.
[205] Liviu denied that he prevented the plaintiffs from having friends or a social life. He produced photos and agendas showing that the plaintiffs spent time with friends, played tennis and were in involved in school clubs. He also produced affectionate notes written by the plaintiffs to him during this period. He and Ms. Lacatus went on business trips together sometimes, while the plaintiffs remained in Ottawa.
[206] There was a piece of evidence that was not particularly significant in terms of its direct probative value but did indicate, to me, how the plaintiffs’ memories of this period were not consistently reliable. During the trial, the plaintiffs were each shown a photo of Ilinca’s bedroom at the Calin house in Kanata. The bedroom was in a state of disarray. Both plaintiffs emphatically denied that the photo could have been taken prior to March 2005, because Ilinca would have been terrified of what Liviu would do if he saw her room this way. When Liviu testified, he produced the negative of the photo which showed it was in fact taken in 2004, when the plaintiffs were living at home. This was an example of how their genuine conviction about their living situation during this period was inconsistent with contemporaneous evidence. I have found that the plaintiffs were subject to physical violence by their father on multiple occasions. This violence, and their fear of violence, was not however ever present, as they now claim, nor did it prevent them from having many typical adolescent experiences.
[207] Based on all of the evidence, I cannot conclude that Liviu imposed undue control on Ana and Ilinca’s movements during this period or that he terrorized them on a daily basis. Even in 2001, the year immediately following Doina’s death, there are photos showing Ana and Ilinca socializing with friends, skiing, skating, swimming and playing tennis, and participating in cultural and community events. There is ample evidence, in the form of agendas, school records and photos, of their activities with friends, independent of their father, in 2002, 2003 and 2004. They went to Europe without their father. They had boyfriends and went to parties. They attended prom with a group of friends. Both of them had part-time jobs in first year university.
[208] Based on all of this evidence, I reject the plaintiffs’ claim that they were deprived of any relationship with their peers or controlled excessively by the defendant from 2000 to 2005.
Communication with Doina’s family
[209] Ilinca and Ana both testified that their father cut off all contact with their maternal relatives after Doina’s death, without any explanation.
[210] Liviu testified that, after Doina’s death, Mrs. Chira’s sister Lenuca flew in from California to visit for a couple of weeks. He felt that Mrs. Chira and Lenuca were laughing at him and encouraging the plaintiffs to behave disrespectfully towards him. As a result, when Mrs. Chira’s visa expired in November, Liviu did not take any steps to extend it, and she returned to Romania.
[211] Liviu stated that, in March 2001, he told Ana and Ilinca that he was tired of dealing with Mrs. Chira. He offered to send them back to Bucharest, where they could live in the Calins’ condo, and return to Canada when they were 18 years old. But if they stayed, they would have to cut off communications with Mrs. Chira. Liviu stated that the plaintiffs agreed to cut off contact.
[212] I do not accept Liviu’s testimony about his offer to send Ana and Ilinca back to Romania. Ana and Ilinca did not mention any such conversation and they were not cross-examined on this point. I do accept Liviu’s evidence that he was unhappy with Mrs. Chira’s influence and role in the plaintiffs’ lives as a result of her extended stay with the family for roughly 16 months in 1999 and 2000. Because of this, he told her to stop calling the Calin house after she returned to Bucharest.
[213] Despite this ban, Mrs. Chira made two calls to the Calin house in October 2002, when she visited Ottawa briefly. I will not review the details of these calls at any length since they are not directly relevant to the plaintiffs’ allegations. I do however find that Liviu threatened to report Mrs. Chira to the immigration authorities, and that this dissuaded her from attempting further contact with the Calins. As a result, Ana and Ilinca had no further direct contact with their grandmother until 2005, after they left the house in Kanata.
[214] Ana and Ilinca were not however cut off from any contact with other maternal relatives. Liviu testified that Doina’s aunts in California called the Calin house from time to time after Mrs. Chira’s departure to find out how the plaintiffs were doing. In August 2001, he and the plaintiffs visited Doina’s cousin Vasilyi. In 2003, after Lenuca died, Liviu called her son in California and spoke with him for half an hour. Liviu was not cross-examined on this evidence, and I have no reason not to accept it. It shows that, contrary to the plaintiffs’ allegation, the Calins remained in contact with Doina’s extended family, with the exception of her parents, after her death.
[215] I also find that Ana and Ilinca had the means and opportunity to contact Mrs. Chira in 2002, when they spent three weeks in Europe without Liviu. They acknowledged that they purchased phone cards for this trip. They stayed with Liviu’s cousin but did not spend every day with him. I do not accept that their fear of their father wholly explains their failure to use this opportunity to communicate with their grandmother, had they chosen to do so.
[216] I therefore cannot conclude that Liviu prevented the plaintiffs from having any contact with their maternal relatives after Doina’s death, either through physical isolation or psychological coercion. He did prevent on-going contact with their grandmother, who had played a central role in their childhood to that point. This was unkind but does not give rise to legal liability.
Events of March 26, 2005
[217] No fewer than nine witnesses gave evidence about what happened in the Calin house on March 26, 2005. Based on all of the evidence, I find that the defendant slapped and spanked both plaintiffs, and punched Ana. I also find that he approached Ana with a knife and threatened to kill her.
[218] The plaintiffs both testified that Liviu became enraged about how they had prepared potatoes for an Easter meal. According to Ilinca, he pulled her hair and slapped her, then slammed the right side of her head against a kitchen cupboard so hard that she lost consciousness. Ana stated that he punched her, hit her with a pot, pulled her by her hair, called her a “fucking bitch” and threatened to kill her while holding a knife. He then told them to go to their rooms. Ana and Ilinca testified that, at that point, they were terrified that he was planning further punishment.
[219] Once in her room, Ana contacted her boyfriend Colin, who agreed to pick them up if they left the house. Ilinca called her boyfriend Justin and arranged for him to meet them at the Corel Centre. They snuck downstairs and left through the garage, and ended up at the Kurosky house in Greely. The next day, Ana and Ilinca filed a report with the Ottawa police, who escorted them back to the house to retrieve their belongings. After March 27, 2005, they did not see their father again until they started this lawsuit.
[220] At trial, Liviu acknowledged that he had a confrontation with Ana and Ilinca on March 26. They had planned an Easter dinner with Ms. Lacatus at the Calin house. Liviu said that he arrived at the house to find that it was in disarray and that his daughters were not studying for upcoming university exams. They told him that they were planning to find office jobs that summer. He told them they should instead look for jobs in retail and go to Europe with their boyfriends.
[221] Liviu testified that he then went into the kitchen and discovered that Ana and Ilinca had not peeled the potatoes to his satisfaction. He described this as the straw that broke the camel’s back. He called them into the kitchen to chastise them. He stated that Ana said “don’t get so fucking close to me” and threatened him with a knife. In response, Liviu said that he spanked Ana once and Ilinca twice, over their clothing, with his hand. He told the plaintiffs that he was planning to move back into the house to ensure that they focussed on their studies and stopped wasting time with their boyfriends. He then sent them to their rooms, saying that he would come up in half an hour to help them get ready for their upcoming physics exam. When he later went to find them, he was surprised to find that they were no longer in the house.
[222] Liviu denied that he beat, punched or slapped the plaintiffs or threatened them with any physical harm during this incident. He acknowledged that he should not have spanked Ilinca twice when it was Ana who, according to him, was “a mess”.
[223] Based on all of the evidence, including Liviu’s own admission of spanking Ana and Ilinca, a serious confrontation occurred at the Calin house on March 26, 2005. I do not find Liviu’s denial of any serious physical violence or threats to the plaintiffs credible. The question is the extent to which Liviu was physically violent and whether he threatened the plaintiffs with serious physical harm.
[224] Ilinca testified that Liviu slammed the right side of her head into the kitchen cabinet so forcefully that she blacked out. Despite this, her boyfriend, Justin did not observe any bruises on her. Ana testified that Liviu dragged her by the hair out of the kitchen, punched her in the stomach and then hit her on the back with a steel pot. Ana and Colin were sexually intimate at the time, yet he did not see any signs of physical injury to her.
[225] David Kurosky, Justin’s father, went to great lengths to assist Ana and Ilinca when they arrived unannounced at his house on March 26, 2005. They remained in the Kurosky house for months without paying rent. Despite his clear concern for the plaintiffs’ wellbeing, Mr. Kurosky did not testify about any physical injury or suggest that they needed medical attention of any kind.
[226] Justin recalled being told by the plaintiffs that Liviu had threatened to burn Ana and Ilinca with hot water or on the stove. His father also remembered hearing that Liviu had dragged Ana’s face close to a gas burner, either directly from Ana or through Justin at the time. I accept that they are accurately recalling what the plaintiffs told them. Their evidence on this issue is problematic, because the plaintiffs did not mention such threats during their testimony at trial. This implies that the plaintiffs either exaggerated what occurred immediately after the incident or do not accurately recall all of the details now. Given the absence of any reference to a threat of burning in the police report, I conclude that they embellished the accounts they gave to the Kuroskys.
[227] I have already expressed doubts about Ilinca’s evidence about the injury she sustained on March 26, 2005. There are other elements of her evidence about this incident that are concerning. During her examination in chief, Ilinca testified that she called Ms. Lacatus from her bedroom before leaving the house. In cross-examination she was unsure about this. At trial, Ms. Lacatus denied any phone conversation with Ilinca on March 25. I prefer Ms. Lacatus’s evidence on this issue.
[228] Nela also testified about the events of March 26, 2005. She recalled that, one afternoon or early evening, Ilinca messaged her saying that “something had happened” and that Liviu had pulled a knife on the plaintiffs. Nela did not recall the details of the message but stated that Ilinca sounded panicked. Nela told her that they absolutely had to get out of the house. She testified that later that evening, or a day or two later, she got the message from Ilinca saying they were okay.
[229] Nela’s evidence of how she reacted to Ilinca’s message is inconsistent with the idea that she knew that Liviu had abused the plaintiffs in the past or that she thought he was capable of seriously hurting them. If she believed that he had a knife and was threatening serious physical harm to Ana and Ilinca such that she urged them to leave the house immediately, why did she wait for Ilinca to follow up with her a day or two later to confirm that they were unharmed? Why would she not have called the police or simply tried to call Ilinca or Ana? I can only conclude either that Ilinca did not tell her that the situation was life-threatening or that Nela did not perceive it to be such.
[230] In cross-examination, Nela admitted that she had originally been subpoenaed by the defence to testify at trial, but changed her mind after speaking to Ana. In her last communication with Ms. Baldy, one of the lawyers acting for Liviu, Nela referred to her in an extremely unflattering way. This history, as well as the implausibility of her testimony, lead me to conclude that Nela’s evidence is not reliable.
[231] Finally, the plaintiffs’ evidence is materially inconsistent with the investigation report prepared by the police officer who interviewed them the next day. Ilinca told Officer Delia that Liviu had pulled her hair, pulled her ear, kicked her, and smashed her head into the cupboard. When he slapped her face, he had a potato in his hand and it hit her in the face. According to Ana’s statement to Officer Delia, Liviu kicked her, punched her, and hit her with a metal pan on her left hip and shoulder.
[232] The statements to Officer Delia mention physical violence (kicking, being hit with a potato) that the plaintiffs did not mention in their testimony at trial. Officer Delia moreover noted, in her report, that she did not observe any marks on Ilinca, and “a very small bruise the size of a nail head” on Ana’s left shoulder. Ana suggested, in her evidence, that she may have worn make-up to cover her bruises. In my view, had she done so, Officer Delia would have noticed this and recorded it.
[233] Officer Delia admitted that she had no memory of the details of the investigation she conducted on March 27, 2005. I find that she in fact has no independent memory whatsoever of her discussion with Ana and Ilinca. I have no reason, however, to think that her written report, which she prepared immediately after interviewing the plaintiffs, misrepresents what they told her at the time. She testified that she would have told the plaintiffs to tell her their version of events, and would have been careful to include all of the details of any alleged wrongdoing.
[234] Officer Delia’s characterization of Liviu’s actions – as a “level one assault”– reflected her assessment of what had occurred the day before. At trial, Officer Delia stated that a level one assault is the least serious category of assault, and includes incidents where a victim has been pushed, slapped or punched, or has been subject to face to face verbal aggression. She did not see any need, based on the plaintiffs’ statements and her observations of their physical state, to recommend a restraining order against Liviu.
[235] Based on all of the evidence, I conclude that Liviu’s physical violence was much less extreme than what the plaintiffs described. In addition to spanking the plaintiffs, I find that he slapped them and pulled their hair. I do not conclude that Liviu slammed Ilinca’s head into the cabinet so forcefully that she lost consciousness, or that he hit Ana with a steel pot on the back. He punched Ana and may have hit her with a pot on the left side of her body, but not with the forcefulness she described at trial.
[236] I turn now to the allegations that Liviu threatened Ana with a knife.
[237] Ana testified that Liviu approached her with a steak knife and held it to her throat, saying “you are a fucking bitch”. Ilinca said that she saw Liviu take a knife from the kitchen and go to another room. She admitted that she did not see him approach Ana with the knife but overheard his threat to kill her. This stood out in her mind because Liviu rarely spoke in English to them.
[238] Although I have found that Ana and Ilinca exaggerated the extent of Liviu’s physical violence towards them, I accept their evidence with respect to the knife and the threat made to Ana. Ilinca’s explanation for remembering Liviu’s words, and the consistency of her recollection and Ana’s recollection of the words, make their testimony credible.
[239] The defense argued that I could not accept Ana and Ilinca’s allegations about the knife and the death threat, for two reasons. First, as already mentioned, Liviu denied any threats. Second, the knife and the death threat were not mentioned in Officer Delia’s investigation report.
[240] I do not accept Liviu’s denial that he made any threat or his evidence that Ana threatened him with a knife. Despite concluding that they have exaggerated the confrontation with their father, I prefer the plaintiffs’ overall account to his. I find that Liviu lost his temper and lashed out at Ana and Ilinca.
[241] I do not believe that Liviu was calm during the confrontation as he suggested in his testimony. This suggestion was contradicted not only by the plaintiffs’ accounts but by the evidence of David Kurosky. Mr. Kurosky testified that he phoned Liviu on the evening of March 26 to reassure him that Ana and Ilinca were safe. He said that, during this phone conversation, Liviu was upset and making “incredible” accusations. According to Mr. Kurosky, Liviu accused him of letting the plaintiffs stay at his house so that it would be more convenient for them to have sex with their boyfriends. Mr. Kurosky recalled this because he viewed this accusation as “despicable”.
[242] Liviu denied that he spoke on the phone with Mr. Kurosky on March 26, 2005. I prefer Mr. Kurosky’s evidence. He is a disinterested witness with no reason to invent this phone call. His evidence regarding Liviu’s emotional state hours after the event is completely inconsistent with the defendant’s contention that he did not lose his temper.
[243] Based on Officer Delia’s report, Ana and Ilinca did not mention a knife or a death threat to the police. Ana testified that she definitely talked about the knife. Had she done so, I find that this detail would have been included in the police report.
[244] On the other hand, Justin recalls that Ana and Ilinca both mentioned a knife, making it unlikely that this element was invented only later. Ilinca explained at trial that she told Ana not to mention the knife or the threat to the police because she thought that they would arrest Liviu, and that he would seek revenge against them. I accept this explanation. In the police report, Officer Delia stated that the plaintiffs did not want charges laid against their father.
[245] The plaintiffs’ allegation about the knife and the threat are also consistent with the plaintiffs’ conduct on March 26. Nothing leads me to think that Ana and Ilinca had any plans to move out of the Calin house prior to March 26. They had no other place to stay and no means to support themselves. They left without clothing or belongings. Justin testified that, when he met with them that evening, the plaintiffs had no plan for what they were going to do when they left their father’s house.
[246] I do not believe that Ana and Ilinca fled their home and their only family member in Canada on a whim. Colin testified that the plaintiffs were almost hysterical when he picked them up from the house. Justin had the same recollection. I accept this evidence.
[247] Since they had not sustained any serious physical injury at that point, the only reasonable inference is that the plaintiffs genuinely feared they would suffer serious injury at the hands of their father if they stayed. This is consistent with a finding that Liviu approached Ana with a knife and told both of them that he would be overseeing their exam preparations and possibly moving back into the house. I conclude that Ana and Ilinca believed their father would seriously hurt them because he threatened to do so.
[248] The defence urges me to find that the plaintiffs decided to leave simply because they did not want to live under their father’s supervision. This would be plausible if Ana and Ilinca had left the next day or the next week, having made some arrangements. It is not consistent with sneaking out of the house as soon as his back was turned with only the clothes on their back, in a state of hysteria.
[249] The defendant has also produced cards and letters that Ilinca sent to him after the plaintiffs left home. In June 2006, for example, Ilinca sent a letter to Liviu saying that she missed him and that she and Ana had cried because he had made so many sacrifices for them. This evidence does not make it less likely that Liviu abused the plaintiffs, any more than the cards the plaintiffs prepared as children and teenagers. Courts frequently see victims of domestic violence who say they love their abusers and wish to continue a relationship with them.
[250] Given my findings on the evidence I have already reviewed, I do not need to consider the statements made by the plaintiffs to university counsellors about their relationship with their father or the law governing the limited admissibility and use of prior consistent statements.
Conclusions on the third period
[251] The plaintiffs have proved that the defendant physically and emotionally abused them between November 2000 and March 26, 2005. Prior to March 26, 2005, the most significant physical abuse involved an incident when Liviu beat Ilinca with a belt, and an incident where he dragged Ana by the hair, punched her in the stomach and threatened to hit her with a wooden beam. There were instances of emotional abuse when he repeatedly punished the plaintiffs for failing to provide the correct answers to math problems that they were not able to understand, when he cut off chunks of Ana’s hair and when he shut her outside during the winter without a coat.
[252] Liviu also cut off contact between the plaintiffs and their maternal grandmother during this period. This does not give rise to any liability. Ana and Ilinca have furthermore not proved that Liviu cut off all social contact between them and their peers or that he cut them off completely from any family members during this period. He is accordingly not liable for wrongful imprisonment.
[253] On March 26, 2005, I conclude that Liviu spanked the plaintiffs, slapped them and pulled their hair. He also punched Ana and threatened her with a knife. This incident, and the prospect of further physical abuse by the defendant, scared the plaintiffs so badly that they fled their home and filed a report to police the next day.
[254] The incidents of physical violence during this period constituted battery. In acting as he did, Liviu was also negligent and breached his fiduciary duty towards the plaintiffs. His threat to Ana on March 26, 2005 and on one earlier occasion, when he threatened to hit her with a wooden beam, also constituted civil assault. I will consider whether Liviu’s actions during this period meet the test for intentional infliction of mental distress when I review the evidence with respect to their alleged injuries.
(3) What injuries were caused by Liviu’s breaches?
[255] Ana and Ilinca claim that they suffered psychological injuries as a result of the defendant’s abuse, more specifically depression and PTSD, and that these conditions have profoundly impacted their lives.
[256] I will first review each plaintiffs’ social, education, work and health histories and their current situation, then the expert evidence presented at trial about their psychological health and the cause of any conditions from which they currently suffer.
Ilinca’s history and current situation
Education
[257] After finishing the winter semester in 2005, Ilinca took time off of university to visit her maternal relatives in California and to work to save money for further studies. She returned to Carleton University in January 2007, but transferred to the University of Ottawa that summer to study chemical engineering. She said she made this decision because she realized she would not get into medical school given her marks in university and her lack of extracurricular activities.
[258] Ilinca continued to take courses at the University of Ottawa until the end of 2010. Her transcript shows that she was not studying full-time. She did well in some courses but poorly in others. She dropped out without obtaining a degree. Ilinca testified that, at the time, she was depressed and had difficulty sleeping and concentrating.
[259] Although Ilinca did not obtain a university degree, her curriculum vitae shows that, since 2013, she has received training in many areas relevant to her work in the finance sector. She got an investment relations licence in Canada but has not yet obtained the equivalent qualification in the UK, although she has discussed it with her employer.
Social
[260] Ilinca continued to live in the Kurosky house for several months after March 2005. After she moved out, she shared an apartment with Ana until late 2009. She acknowledged at trial that their relationship was not always happy or close. In October 2009, after a violent argument, Ana called the police and reported that Ilinca had assaulted her. The relationship became more distant and they later stopped living together.
[261] After she and Justin broke up in August 2006, Ilinca had various romantic relationships throughout university but nothing that lasted longer than three years. She testified that her partners were often unfaithful.
[262] After moving to London, Ilinca dated a man for whom she developed intense feelings. She said that she has never cared for anyone as much, aside from her mother. The relationship ended due to “bad timing” and because he could not deal with Ilinca’s nightmares, panic attacks and mood swings.
Employment
[263] From 2006 to 2009, while she was in university, Ilinca worked part-time. She had administrative jobs within the federal government and elsewhere.
[264] After leaving university, Ilinca worked briefly as a flight attendant and then as a legal assistant. In 2013, she got a job as an assistant in a financial services firm and has been employed in this sector ever since. In December 2016, she moved to London, England, for a job she had been offered there. Unfortunately, after arriving in London she discovered that her employer was engaged in a fraud and the job did not in fact exist. Ilinca found another job as a client service executive in a financial services firm.
Health
[265] The court has not been provided with any records from the Calins’ family physician or from a paediatrician who followed the plaintiffs while they were children. There are no records of any treatment for injuries while Ilinca lived with her father.
[266] The evidence indicates that Ilinca was depressed in high school. In 2004, she wrote a note in which she said: “I feel like I’ve reached the end. I’m at my last resort”. During this period of time, she and Ana were involved with the same boyfriend. She wrote that she had been “used, betrayed and thrown away by both friends and my sister.” Liviu is not mentioned. Asked about this note at trial, Ilinca testified that she has felt suicidal most of her life and struggled with anorexia as a teenager.
[267] Ilinca had recurrent cysts beginning in 2002. A large benign cyst was removed from Ilinca’s right breast in June 2003. Residual fibroadenoma in her right breast was detected in January 2004 and then again in July 2004 in both breasts. In February 2008, Ilinca had abdominal pain and found out she had an ovarian cyst. She underwent laporascopic surgery to remove the cyst in August 2008.
[268] Other medical issues that arose between 2007 and 2011 included anxiety about exposure to STDs by an unfaithful partner and various routine illnesses.
[269] In December 2006, Ilinca sought counselling at the Carleton University’s health clinic for family and personal problems. Ilinca stated that her father had been physically and mentally abusive throughout her childhood and that she had been isolated from family and friends. She filled out a mood survey that indicated she was depressed and anxious. An initial counselling note on December 12, 2006 mentions the death of her mother when she was 14 years old, her father’s abuse and anger and a lack of a close relationship with Ana. Ilinca did not show up for subsequent counselling appointments. Although she continued to attend at the clinic, she did not report any mental health issues or seek any further counselling in 2007 and 2008.
[270] In March 2009, Ilinca attended at the University of Ottawa’s mental health clinic. According to the intake note, she was seeking psychological services for “depressed mood, difficulty concentrating, intense anxiety and traumatic memories”. She described a long history of abuse at the hands of her father as well as conflicts with her sister and her boyfriend. Following several assessment meetings, she was diagnosed with chronic PTSD and a major depressive disorder. This diagnosis was made by a post-graduate student supervised by a registered psychologist. A final report in August 2010 indicated that, after receiving therapy through the clinic, Ilinca was better able to handle her emotions and had successfully completed all of her exams in the past school year.
[271] In February 2010, the Carleton University clinic record likewise indicated that Ilinca was doing “much better managing on her own” and her grandmother was visiting. In December 2010, however, a clinic note says that she was sleeping poorly and showed signs of burn-out. She was prescribed a medication to help her sleep.
[272] There is no record of any further counselling or ongoing treatment for mental health issues in 2011 or 2012.
[273] In May 2013, after dropping out of university, Ilinca sought counselling from Christian Counselling Ottawa, a not-for-profit clinic. The initial assessment form indicates that she had PTSD and had been diagnosed with depression at the age 12 or 13, and again more recently after leaving university. She mentioned that she had started a lawsuit against her father. Ilinca attended six counselling sessions before the clinic moved to a new location that she could not reach by bus.
[274] Ilinca did not seek any further counselling again until August 2017, when she had access to medical services through her employer. In 2017 and 2018, she was treated for various health conditions, including a new ovarian cyst, pericarditis, irritable bowel syndrome and gastrointestinal issues.
Current situation
[275] Ilinca continues to live in London, UK, working for Rothschilds. Her current annual salary is 40,000 pounds sterling, which is about $66,000 CAD. She shares a small flat with three other people.
[276] Since January 2018, Ilinca has seen a psychologist on a regular basis. In August 2018, he referred her to Dr. Nathan Anthony, a London psychiatrist. In his report on August 15, 2018, Dr. Anthony stated that Ilinca had recurrent Generalised Anxiety disorder. She had intermittent symptoms of PTSD in the form of nightmares and hyper-arousal but, in his view, did not meet the full criteria for this disorder. Dr. Anthony prescribed duloxetine, an anti-depressant. Ilinca also continued to get psychotherapy for anxiety.
[277] Ilinca testified at length about how her father’s abuse affected her and continues to affect her. She clearly remains very angry with him, although she also said that “he is still my dad and I still care for him”. She said that she loves her sister but finds it hard to spend time with her, because it reminds her of her childhood. Ilinca does not feel that she fits in and has trouble forming any relationships. She said that she has trust issues, low self-esteem and difficulties with physical intimacy, which in her view stem from the defendant’s abuse.
Ana’s history and current situation
Education
[278] Like Ilinca, Ana interrupted her university studies in 2005 to re-connect with her maternal relatives and to work to fund the rest of her degree. She travelled to Romania and California.
[279] In September 2007, Ana re-enrolled at Carleton in an applied economics program. She obtained an honours bachelor’s degree in 2011. She has since completed some of the requirements to be licensed as a securities advisor.
Social
[280] Ana left the Kurosky house much sooner than Ilinca. She testified that the location was inconvenient. She spent the next few months living with friends until she and Ilinca began to travel later that year. As already mentioned, the plaintiffs shared an apartment until their relationship deteriorated to the point that they no longer wished to live together.
[281] Ana had various romantic relationships after March 2005. Like Ilinca, she testified that her partners were womanizers who cheated on her or had substance abuse problems. She testified that she has trouble trusting men, and described herself as moody and unaffectionate. She met her current partner about three years ago and moved in together in February 2018.
Employment
[282] From 2005 to 2009, Ana worked as an administrative assistant with the federal government and elsewhere. In July 2010, she got a marketing role with a men’s magazine. She also worked as a server in various restaurants.
[283] In February 2012, Ana moved to Vancouver to participate in a reality television show. Later that year, she got a job as a customer service representative at a bank. She could have continued her employment with the bank, but testified that she left to resume working in the hospitality industry because the pay was better. She returned to Ottawa briefly in 2013 and moved in with Ilinca again. Ana testified that this ended when Ilinca gave her a one-way plane ticket back to Vancouver.
[284] In August 2014, Ana obtained a position with a small mining company in Vancouver, where she still works. This position involves a lot of travelling.
Health
[285] There are no records of any treatment provided to Ana for injuries while she lived with her father, or indeed any medical records for her prior to her departure from the house in Kanata.
[286] In January 2007, Ana sought counselling at Carleton University’s health clinic. In the intake form, she wrote that she was depressed and had been for a long time. She said that she had seen a physician previously for this and that she was taking an anti-depressant, but no record of this treatment was produced at trial. Ana completed a mood survey in which she indicated that she was very depressed and angry and somewhat anxious. In her trauma and abuse history, she stated that her mother had died when she was 14 years old, and that until March 2005 she had been physically and psychologically abused by the defendant. She also stated that she had not been allowed to have friends, to speak with family or to leave home unless he was with her.
[287] Ana received psychological counselling in January 2007 but did not follow up again until November 2008. She had further counselling in late 2010 and early 2011 following the break-down of her relationship with her boyfriend at the time.
[288] Between 2007 and 2010, Ana was a patient of an Ottawa medical clinic. There were no significant medical issues identified aside from a benign mass in one of her breasts in 2007.
[289] In April 2012, Ana had a comprehensive medical examination through a private health clinic. She reported that she was taking medication for anxiety and depression. Her physical examination revealed no problems except that she was underweight.
[290] In August 2012, Ana participated in hypnotherapy. In the intake form, she wrote that she had great difficulty with relationships and poor self-esteem. She mentioned abuse by her father and her mother’s death, and told a counsellor that the defendant did not allow her to date. She said that she was taking unspecified anti-depressants. Ana testified that the hypnotherapy was effective but she could not afford further sessions.
[291] Ana tore her left knee in an accident in 2010 and has since received treatment for ongoing pain and weakness in this leg. She had cosmetic surgery in 2010. In January 2013, she was hit by a bus, suffered a concussion and was off work for two months.
[292] In December 2014, Ana returned to the private health clinic she had attended in 2012. She was no longer taking any medication for depression or anxiety but was wondering if she should resume doing so. According to the clinic record, she was functional at work, sleeping well and her weight was stable, although she did not have many friends in Vancouver. She said she was looking for a good psychotherapist. Her physical examination again showed no concerns.
[293] In December 2015, Ana became a patient at a Vancouver medical clinic. The focus of most of her visits were recurrent issues with her left knee and symptoms related to HSV, with occasional complaints of stress and trouble sleeping over work. In October 2016, Ana reported that she had been depressed and had been having panic attacks over the previous two months. She was prescribed an anti-depressant and got acupuncture treatments. In March 2017, she told her doctor that she had stopped taking the anti-depressants because she was able to control her depression and anxiety through counselling, socializing and physical exercise. She was taking Ativan for panic attacks “due to lots of travel for work and some personal life issues”.
Current situation
[294] Ana has been with her partner for three years. In July 2018, they had a baby. Ana is just finishing maternity leave. She said having a child as the “happiest thing” she has ever done. She described herself as a good mother. She described her partner as an honest person who is an excellent father.
[295] Ana testified that she enjoys her job, which she described as “very demanding”. At the same time, she claimed that she had an entry-level position and expressed insecurity about her career. In 2017, she also earned just over $60,000.
[296] Ana stated that she has trouble sleeping and sometimes wakes up in a panic. She has nightmares about her childhood. She is not however taking any medications.
Expert evidence called at trial
[297] Two psychiatric experts testified at trial. Dr. Rakesh Jetly, a senior psychiatrist with the Canadian Armed Forces, testified as an expert witness for the plaintiffs. Dr. Dominique Bourget, a staff psychiatrist at the Royal Ottawa Hospital, was called by the defence. Both Dr. Jetly and Dr. Bourget examined the plaintiffs and provided their opinion about whether they suffered from any psychiatric disorders and, if so, whether the defendant’s abuse caused these disorders.
Dr. Jetly’s opinion
[298] Dr. Jetly has spent most of his career focussing on the treatment of the mental health of military members and veterans, and holds a research chair at the Royal Ottawa in this area. He also has a small practice focussing on female patients who have had traumatic experiences.
[299] Dr. Jetly explained what causes PTSD and how it is diagnosed. A traumatic event involving a serious physical threat occurs and overwhelms a person’s ability to focus on other things. A person with PTSD repeatedly re-experiences the traumatic event in some way. As a result, having PTSD is almost like being in a constant distracted state. Flashbacks or nightmares can affect memory, sleep, concentration and focus. A PTSD patient may also experience hyper-vigilance or hyper-arousal, or avoid situations that they associate with their traumatic experiences. To meet the diagnosis of PTSD, a patient’s symptoms must be present for at least a month and have an impact on their everyday functioning or ability to do their job.
[300] Dr. Jetly testified that trauma and loss could both give rise to both PTSD and depression. He also noted that a person could have many traumatic events in their lives without developing PTSD. He expressed the view that, if a patient has symptoms of PTSD, a psychiatrist may attempt to identify the triggering event by observing whether the symptoms relate thematically to specific experiences.
[301] Dr. Jetly conducted an assessment of both Ana and Ilinca. This assessment involved a review of records provided by their counsel and a two hour meeting with each of them by video conference. He concluded that they both have recurrent depressive disorders and chronic PTSD.
[302] Dr. Jetly was of the view that the plaintiffs suffered from PTSD based on what they told him about the defendant’s abuse and their reported symptoms. The flashbacks they described centered on incidents where Liviu was violent to Doina and or to them. They also avoided certain places and experiences that, in Dr. Jetly’s views, related thematically to their childhood and adolescence with Liviu. For example, Ilinca told him that she avoided the Romanian culture and family parties because they reminded her of her father. I note that Ana did not mention this avoidance, nor some of the other things she related to Dr. Jetly, in her evidence.
[303] In cross-examination, Dr. Jetly admitted that, in the circumstances, Doina’s death could also be a traumatic event sufficient to trigger PTSD. He acknowledged that, when he formed his opinion, he was not aware that the plaintiffs only learned that she would die a day or two before her death. He also accepted that some of the avoidance behaviour reported by Ilinca could be linked to memories of her mother.
Dr. Bourget’s opinion
[304] Dr. Bourget was the program director for the division of forensic psychiatry at the University of Ottawa between 2011 and 2017. During this same period, she was a member of the Specialty Committee in Forensic Psychiatry for the Royal College of Physicians and Surgeons of Canada. She has been a member of the Ontario Review Board since 1997 and a member of the Consent and Capacity Board since 2006.
[305] Dr. Bourget conducted in-person interviews with each of the plaintiffs in September 2018. She also reviewed medical and legal records provided by counsel as well as Dr. Jetly’s reports based on his assessments of Ana and Ilinca.
[306] In Dr. Bourget’s view, Ilinca has a major depressive disorder. When she assessed her in September 2018, she was experiencing a mild episode for which she had been prescribed medication. Dr. Bourget also found that Ilinca has recurrent panic attacks that are consistent with a panic disorder.
[307] Dr. Bourget was of the opinion that Ana meets the diagnostic criteria for an unspecified depressive disorder, a panic disorder and a generalized anxiety disorder. Based on her history, she does not have a major depressive disorder. According to Dr. Bourget, Ana did not exhibit or report any depressive symptoms. Although Ana told Dr. Bourget that she had been diagnosed with severe depression in the past, she produced no medical records that corroborated this diagnosis and had not sought out much counselling. In Dr. Bourget’s view, Ana did not have any difficulty with self-esteem or self-confidence, and she did not believe that her psychological conditions had affected her academic or professional achievements.
[308] Dr. Bourget testified that both Ana and Ilinca would also meet the diagnostic criteria for PTSD, if it could be confirmed that they had been exposed to events where they had been exposed to death or the threat of serious injury as they described. She emphasized that the diagnosis requires exposure to actual or threatened death, serious injury or sexual violence. She stated that it would be impossible to determine that a traumatic event had occurred based only on a patient’s symptomatology.
[309] Dr. Bourget did not express an opinion about the cause of the plaintiffs’ psychiatric disorders. In her view, however, Doina’s death was a major traumatic event in Ilinca’s life and could have been an event sufficient to trigger PTSD for Ana as well. She noted that Ilinca’s psychiatric symptoms started when her mother died. During their interviews, both Ana and Ilinca appeared highly affected by the loss of their mother, in addition to being very upset in recalling their father’s abuse.
[310] Dr. Bourget testified that a threat on the plaintiffs’ lives by their father in March 2005 could have been sufficiently traumatic to trigger PTSD. In her view, however, it was not the usual magnitude of event that would trigger PTSD.
[311] Finally, Dr. Bourget testified Ilinca and Ana likely have a biological predisposition towards depression and anxiety disorders, given that they both suffer from similar psychiatric disorders. She stated that such a predisposition could cause psychiatric conditions even in the absence of trauma that could trigger PTSD. In the absence of a biological predisposition, it would be unlikely that two people would develop the same anxiety disorder based on the same trauma.
Findings on the expert evidence
[312] Not every traumatic experience is sufficiently traumatic to give rise to PTSD. Further to the criteria established by the American Psychiatric Association, a person must have “experienced, witnessed or [been] confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or other” provoking “intense fear, helplessness or horror”. Only a small percentage of people who have such an experience will exhibit the symptoms of PTSD. These symptoms involve re-experiencing, avoidance and/or hyper-arousal in connection with the event for longer than four weeks after its occurrence. These symptoms must cause significant distress or impaired functioning to the person.
[313] Dr. Jetly and Dr. Bourget agree that Ilinca has a major depressive disorder. They disagree about the severity of Ana’s depression and whether she has other psychiatric disorders. They also disagree on whether it is possible to reach a definitive conclusion on a PTSD diagnosis, or to identify the triggering event for PTSD, based simply on their interviews of the plaintiffs and the other information they reviewed.
[314] Dr. Bourget said that she could not reach a definitive diagnosis of PTSD without some corroboration of the plaintiffs’ allegations with respect to the violent incident they allege as a result of their father’s abuse. Dr. Jetly relied on the plaintiffs’ account about the extent and severity of their father’s abuse to conclude that they had experienced a sufficiently traumatic event. He also argued that it was possible to infer the existence of such an event linked to their father based on the re-experiencing, avoidance and hyper-arousal symptoms they described.
[315] In general, I prefer Dr. Bourget’s evidence. She has experience and training as a forensic psychiatrist that Dr. Jetly does not have. Almost all of Dr. Jetly’s patients are members of the armed forces who presumably have been in combat zones. This makes him an expert in treating PTSD but has given him less experience in identifying when a patient might not meet the objective diagnostic criteria for PTSD and in diagnosing other disorders that might give rise to similar symptoms.
[316] I also give Dr. Jetly’s opinion slightly less weight because he did not conduct a face-to-face assessment of the plaintiffs. He testified that the video conference provided him with the means to meaningfully assess the plaintiffs’ psychological state at that time, but conceded that he would have preferred to meet them in person. At one point he denied that a treating psychiatrist would have better insight into a diagnosis than he did. Making this sensible concession would have enhanced my confidence in his opinion.
[317] Since I give Dr. Bourget’s opinion more weight, I accept her conclusion that Ilinca has a major depressive disorder and a panic disorder, and that Ana has an unspecified depressive disorder, a panic disorder and a generalized anxiety disorder.
[318] In terms of a possible PTSD diagnosis, I have serious misgivings about Dr. Jetly’s approach. If I accepted it, I would effectively be allowing him to make a critical determinations of fact – whether the defendant threatened the plaintiffs with death or serious injury, and whether their symptomatology disrupts their current lives significantly – that it is up to this court to make.
[319] In my view, I must make my own determination of these issues, then consider whether, in light of the expert evidence I have heard, I can conclude that either Ana or Ilinca suffer from PTSD.
Conclusions on the plaintiffs’ injuries and their cause
[320] I find that the plaintiffs have consistently exaggerated the extent of their father’s physical and emotional abuse during the trial. They likewise misstated the extent and severity of the abuse in speaking to health care providers and during their interviews with Dr. Jetly and Dr. Bourget. For example, when Ana sought counselling in January 2007, she indicated that, prior to March 2005, she was not allowed to have any friends or to leave home unless she was accompanied by her father. This was not true. Both Ana and Ilinca have also reported that they were subject to severe physical discipline, suggesting a level of violence that would result in some tangible physical injury. There is however no medical record of any injury, or any explanation by the plaintiffs about their failure to produce any such record.
[321] Ana has not consistently sought or received any ongoing psychological counselling or treatment. She has reported to health professionals that she has been diagnosed with depression and was taking anti-depressants as early as 2007, but the only prescription for anti-depressants in evidence was in October 2016, and she told her doctor on the next visit that she had discontinued taking them. At trial, she stated that she has not taken any medication since 2013. While she has occasionally complained of anxiety, depression and problems with sleeping to physicians in the last five years, the reported stressors were her job and relationship issues.
[322] I have already found that Ana has an unspecified depressive disorder, a panic disorder and a generalized anxiety disorder. I cannot however conclude that she currently has or has in the past had a condition that has interfered or continues to significantly interfere with her ability to work, to have social relationships, and to carry out the activities of daily living. If she did, in my view Ana would have sought treatment. This finding by itself precludes a conclusion that she suffers from PTSD.
[323] Ilinca suffers from more serious mental health issues. She feels profoundly isolated, sad and anxious. She has trouble sleeping and concentrating. Ilinca has sought psychological treatment sporadically since late 2006 and consistently in the last two years. In my view, the gaps in her counselling reflect a lack of readiness to confront her past and an inability to pay for treatment. Dr. Jetly and Dr. Bourget agree that Ilinca has a major depressive disorder. She is currently taking medication which apparently control her symptoms.
[324] Ilinca also has other serious health issues. She has had recurrent cysts since adolescence. Although they have been benign, they have had to be surgically removed and monitored given her mother’s fatal cancer. She has ongoing gastro-intestinal issues and IBS worsened by the stress that she has experienced over her employment and living situation in the UK.
[325] Even if I accepted Dr. Jetly’s opinion on how to approach a PTSD diagnosis in a case like this, his evidence does not allow me to conclude that the defendant’s abuse caused the plaintiffs’ psychiatric disorders. Dr. Jetly testified that it was “plausible” that Ana and Ilinca’s PTSD and major depressive disorders were caused by Liviu’s abuse. In cross-examination, he admitted that finding that something is plausible is not the same thing as finding that it is more likely than not. Although, Dr. Jetly stated in re-direct that the defendant’s abuse caused the plaintiffs’ PTSD, I cannot give this weight given his earlier characterization of the potential relationship between the defendant’s conduct and the plaintiffs’ psychiatric conditions.
[326] Dr. Bourget testified that, if the plaintiffs have PTSD, it is impossible to determine whether it was triggered by their mother’s death, their father’s abuse or a biological predisposition. I accept this evidence.
[327] Ilinca testified that she has been depressed and considered suicide from the time she was about 14 years old. In May 2013, she told a counsellor at Christian Counselling Ottawa that she had been diagnosed with depression at the age 12 or 13. This was before the period of her father’s most serious abuse, which I have concluded took place in 2001 and early 2002. During her testimony, I was struck, as was Dr. Bourget during her interview, by how much Ilinca was visibly affected by memories of her mother’s death. In my view, this loss has had as profound an effect on her as her father’s abuse.
[328] In my view, Ilinca likely has PTSD. I am unable to determine on the evidence, however, whether either this condition or her depression was caused by the defendant.
[329] I conclude that the plaintiffs have not proved that the defendant’s actions likely caused their psychiatric disorders. This does not imply that they have not suffered deep emotional scars from his abuse. It does however mean that the defendant is not liable for intentional infliction of mental distress. It will also have an impact on the quantum of damages to which Ana and Ilinca are entitled.
(4) What damages should Ana and Ilinca receive for their injuries?
[330] Ana and Ilinca seek general and punitive damages. They also seek damages for past and future economic loss or, in the alternative, damages for loss of competitive advantage. I will deal with each of these heads of damages in turn.
General damages
[331] Ana and Ilinca each claim $125,000 in general damages.
[332] All but one of the cases they rely on for their general damages claim involve long-term sexual abuse by a family member or caregiver.[^13] There is no allegation of any sexual abuse or impropriety in this action. I accordingly cannot use these cases as a guideline for the appropriate general damages for Ana and Ilinca.
[333] The one case cited by the plaintiffs that did not involve sexual abuse is Cho v. Cho.[^14] Cho dealt with prolonged and horrific emotional and physical abuse by a mother against her two children. The physical abuse happened almost every day from the time the children were very young, and included beating them with wooden utensils; choking them or holding their head under water until they passed out; and pouring scalding water on them. The defendant mother broke her daughter’s leg on one occasion and her nose on another. They were removed from their family by the local children’s aid society when they were 13 or 14 years old, but were left with permanent physical scars as well as PTSD and related disabilities. Molloy J. found that the physical attacks on the children were “sadistic, more like torture than punishment”. She awarded them $100,000 each in general and aggravated damages.
[334] The history in Cho is very different than the case here. Liviu’s abuse was not a daily occurrence nor did it involve anything like the level of violence described in Cho. There is no record of any physical injury to the plaintiffs that required medical attention. There were no visible injuries on either plaintiff following the very worst incidence of physical violence in the Calin house on March 26, 2005, aside from a very small bruise on Ana’s arm. The physical and psychological effects of Liviu’s battery and assault of the plaintiffs were not trivial, but they do not attract the level of general damages awarded in Cho.
[335] The defence argues that I should award only modest general damages to Ana and Ilinca. Three of the cases cited involve a single instance of physical violence between strangers that led to no serious injury.[^15] Like the sexual abuse decisions relied on by the plaintiffs, these decisions do not provide meaningful guidance in this case.
[336] The defence has provided one case with arguable similarity to this one. In Linov v. Williams, over the course of the parties’ marriage, the defendant husband pushed, shoved, kicked and threw objects thrown at the plaintiff wife.[^16] The trial judge concluded that these incidents were “not of a serious nature, although undoubtedly they were extremely upsetting”. The judge found that the wife suffered a decline in her general well-being, but attributed this more to the break-down of the marriage in general than to physical abuse. She awarded general damages of $1,000 to the wife for the battery.[^17]
[337] The injuries suffered by Ana and Ilinca as a result of their father’s assault and battery of them on multiple occasions are more serious than the injuries in Linov. Although I have not concluded that the plaintiffs suffer from PTSD as a result of Liviu’s actions, I do find that they have emotional and psychological scars as a result of his conduct between 2000 and 2005, and in particular his assault and battery on them on March 26, 2005. As a result, they are entitled to more than token or modest general damages.
[338] In Costantini v. Costantini, Pazaratz J. did an extensive review of damages awards in Canadian domestic assault and battery cases.^18 Where the victim suffered serious and permanent physical injuries, general damage awards ranged from approximately $66,000 to $170,000.[^19] In cases where domestic violence did not result in any permanent physical injury, as in this case, far lower damages have typically been awarded. This includes cases where the victim has been battered repeatedly over a long period of time.[^20]
[339] In my view, abuse of a child by a parent over many years should attract more than modest damages, even in the absence of any serious physical injury. Liviu’s conduct was not as serious and prolonged as the abuse in Cho and did not cause any permanent physical injury. The plaintiffs have however suffered pain and fear that a child should never experience, much less at a father’s hands. His abuse caused emotional and psychological scars that Ana and Ilinca will bear their entire lives.
[340] This is particularly true in Ilinca’s case. Although she has not proved that her PTSD and depression were caused by her father’s actions, they unquestionably have had a very negative impact on her ability to engage with others and form meaningful long-term relationships. I accordingly award her $50,000 in general damages.
[341] Ana has also been affected by the defendant’s actions, but fortunately not as much as her sister. I award her $35,000 in general damages.
Loss of income
[342] Ana and Ilinca each claim that, as a result of Liviu’s breaches, they have incurred and will continue to incur a loss of income. Their parents and various maternal relatives were successful professionals. Ana and Ilinca had good marks in high school but did not go on to have the careers to which they aspired. They seek damages to compensate them for the more lucrative careers they think they would have had in the absence of their injuries at their father’s hands.
[343] Ana obtained a bachelor’s degree in 2011. She claims that she would have completed this degree in less time, and gone on to complete a post-graduate degree, had she not been depressed and unmotivated as a result of her father’s abuse. A post-graduate degree would have led to a more lucrative career.
[344] Ilinca says that she dreamed of becoming a doctor. Although she completed seven years of university studies, she did not obtain a degree.
[345] The plaintiffs’ evidence falls short of proving, on a balance of probabilities, that they would have pursued further education and had better careers but for their father’s conduct. In cross-examination, Ilinca admitted that it was her choice to go into biochemstry. She later switched programs because she did not want a job in a lab. She did not go to medical school because, by her own admission, she did not have the money for tuition or the grades to do so. She has not proved that her father’s conduct prevented her from pursuing a career in medicine or prevented her from completing a degree.
[346] I accept Ana’s testimony that Liviu wanted her to pursue a science degree rather than a business degree. Many parents in fact put some pressure on their children to choose one university program over another. Parents may even go so far as to make their financial support conditional on a child choosing the course of study they think is best. This would not be the basis for a legal claim. In any event, Ana did not testify that Liviu coerced or threatened her into enrolling in a science program in university. Furthermore, after returning to university in 2007, Ana did not take any steps to pursue an international business program or law or to pursue post-graduate studies. She testified that she did not want to take on further student debt.
[347] I conclude that Ana’s initial university program may have been heavily influenced by her father’s preference, but her subsequent career is the product of her own choices.
[348] The plaintiffs did not call any evidence from a vocational expert. Their expert psychiatrist, Dr. Jetly, testified that they might have attained their professional goals if they did not have psychological conditions, but admitted that this is impossible to predict. This opinion was echoed by the defendant’s expert psychiatrist Dr. Bourget.
[349] The inherent weakness of the plaintiffs’ loss of income claim is evident from their own approach to the calculation of their damages. Guy Martel calculated the income that Ana and Ilinca could have earned had they attained their respective career goals, and compared it to what they have and likely will earn in their current fields of work. Ana and Ilinca do not however claim the full value of the lost income calculated by Mr. Martel, but rather 40% of it, which they say is the likelihood that they would have had more professional success in the absence of Liviu’s legal breaches. In doing so, they effectively concede that they cannot prove their loss on a balance of probabilities.
[350] As a result, the plaintiffs have not proved any damages for loss of income.
Loss of competitive advantage
[351] If they do not succeed in their loss of income claim, Ana and Ilinca alternatively claim $300,000 for loss of competitive advantage.
[352] In Grottola v. Stanziano, Deputy Judge Marshall explained the difference between damages for loss of competitive advantage and damages for future income loss:[^21]
A loss of future income relates to a probable loss of future earnings. On the other hand, a loss of competitive advantage … relates to a future contingency that could result in probable future income being more contingent than it otherwise would have been.
[353] Any person may be affected by the usual contingencies such as unemployment, illness, accidents and a tough job market. To be entitled to damages for loss of competitive advantage, a claimant must show that they are subject to additional contingencies. In Brown v. Golaiy, a decision of the B.C. Supreme Court, Finch J. identified circumstances that might merit an award for loss of competitive advantage:
The plaintiff has been rendered less capable overall from earning income from all types of employment;
The plaintiff is less marketable or attractive as an employee to potential employers;
The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.[^22]
[354] The plaintiffs have cited various cases where Ontario courts have awarded damages for loss of competitive advantage. As always, however, the burden is on the plaintiffs to prove their damages through evidence at trial. In order to be entitled to more than nominal damages, the plaintiffs must show that the defendant’s acts or omissions caused them to be in a worse position than they would otherwise have been and they must be able to quantify their loss.[^23]
[355] I am unable to find that Ana and Ilinca have lost any competitive advantage as a result of Liviu’s conduct towards them. There is no evidence that they have been less able to get or keep a job, or have lost out on employment opportunities, as a result of the psychological and emotional impact of their experiences with their father.
[356] This case can be contrasted with the circumstances in St. Prix-Alexander v. Home Depot Canada Inc., one of the decisions relied on by the plaintiffs.[^24] In that case, the plaintiff was hit on the head with a box while shopping in a hardware store. As a result, she suffered ongoing shoulder and neck pain and headaches. The trial judge found that, although she had not yet incurred any income loss, she was at a competitive disadvantage for future work because she could no longer work 60 hour weeks or accept any job that was stressful or demanded a lot of concentration.[^25]
[357] There is little evidence that either Ana or Ilinca are less able to work or unable to do certain types of work as a result of any psychological injury caused by Liviu. Ilinca indicated that she avoids high-stress situations. Despite this, she made the decision to move to a new country to take on a new job. When this did not work out, she persisted and found other employment in intensely stressful circumstances that would have defeated many people. She has proven to be remarkably resilient.
[358] In my view, both Ilinca and Ana have understated their professional accomplishments. Ilinca has obtained an investment relations licence in Canada and could do the same in the UK. Ana described a stimulating work environment that brings with it many opportunities for travel and networking.
[359] Ana and Ilinca have obtained good jobs despite academic setbacks, limited financial support during university, and the challenge of pursuing careers in new cities and, in Ilinca’s case, a different country. In doing so, they have overcome feelings of inadequacy, isolation, anxiety and depression. I cannot conclude that they are more vulnerable to future contingencies, or have additional contingencies.
[360] As a result, I cannot award Ana and Ilinca any damages for loss of competitive advantage.
Punitive damages
[361] Punitive damages are awarded against a defendant for “malicious, oppressive and high-handed” misconduct that represents “a marked departure from ordinary standards of decent behaviour”.[^26] Punitive damages are exceptional. Their function is not to compensate the plaintiff for harm or loss suffered. They are assessed to punish the defendant, denounce their conduct, and deter similar behaviour in future.[^27] Punitive damages are only awarded when the compensatory damages awarded are insufficient to accomplish the objectives of punishment, deterrence, and denunciation.[^28]
[362] Liviu subjected his daughters to harsh physical punishments and made them feel terrible about themselves. They have no physical scars but they will carry the emotional scars all of their lives. This conduct deserves sanction beyond general damages. It is a marked departure from the standards we would expect of a parent. A punitive damage award is appropriate to denounce the defendant’s behaviour and signal to others that physical and emotional abuse of children will attract significant sanctions.
[363] In Cho, discussed above, the court awarded the plaintiffs $25,000 each in punitive damages. Ana and Ilinca argue that the same amount should be assessed in this case. As already noted, the situation in this case is very different than the situation in Cho. In that case, the plaintiffs were systematically burnt, beaten and choked on almost a daily basis over many years. They had broken bones and permanent scars.
[364] In the circumstances of this case, I award Ana and Ilinca $10,000 apiece in punitive damages.
Conclusion
[365] The action is granted. Ilinca is awarded $50,000 and Ana is awarded $35,000 for general damages. The defendant must pay them each a further $10,000 for punitive damages.
[366] If the parties are unable to agree on costs, they may submit written cost outlines by no later than June 21, 2019. The cost outlines may not exceed three pages in length exclusive of any attached bill of costs.
Justice Sally Gomery
Released: June 7, 2019
COURT FILE NO.: 12-55682
DATE: June 7, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ilinca Calin and Ana Calin
Plaintiffs
– and –
Liviu Calin
Defendant
REASONS FOR JUDGMENT
Madam Justice S. Gomery
Released: June 7, 2019
[^1]: In this decision, I will take the liberty of referring to the members of the Calin family by their first names.
[^2]: Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226, at p. 246.
[^3]: Linden and Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006) (“Canadian Tort Law”), at p. 44; Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, 124 O.R. (3d) 641, at paras. 142-43.
[^4]: Canadian Tort Law, at pp. 46-47.
[^5]: Canadian Tort Law, at pp. 46-47; Costantini v. Costantini, 2013 ONSC 1626, 28 R.F.L. (7th) 356 (“Costantini”), at para. 30.
[^6]: M.(K.) v. M.(H.), 1992 31 (SCC), [1992] 3 S.C.R. 6 (“M v. M.”), at pp. 62-63.
[^7]: M. v. M., at p. 67.
[^8]: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 13.
[^9]: McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830, 344 O.A.C. 5, at paras. 29-30.
[^10]: Sankreacha v. Cameron J. and Beach Sales Ltd., 2018 ONSC 7216, 51 C.C.E.L. (4th) 264, at para. 233.
[^11]: Mrs. Chira did testify about seeing bruises on Ana’s legs and rear in 1988. This falls outside the allegations in the amended statement of claim.
[^12]: Since Andrea is the plaintiffs’ contemporary, in these reasons I will also refer to her, and any other friends of theirs, by their first name in these reasons.
[^13]: Waters v. Bains, 2008 BCSC 823; J.R.I.G. v. Tyhurst, 2001 BCSC 369; Whitfield v. Whitfield, 2014 ONSC 2745(reversed on liability on appeal); C.D. v. R.D., [2003] O.J. No. 281 (Ont. S.C.); L.R. v. S.P., 2019 ONSC 1737; K.K. v. K.W.G. (2006), 40 C.C.L.T. (3rd) 139 (Ont. S.C.); and C.S. v. Nigro, 2010 ONSC 3204.
[^14]: Cho v. Cho (2003), 2003 2464 (ON SC), 36 R.F.L. (5th) 79 (Ont. S.C.) (“Cho”).
[^15]: Lawrence v. Sugar Daddys, 2017 ONSC 3741 ($10,000 awarded to a plaintiff whose nose was fractured in a bar fight, leaving a permanent facial scar); John v. Kiefer, 2016 ONSC 2461 (the plaintiff sued the defendant for assault after a fist fight, but did not provide any evidence of physical or emotional injury, and was awarded $100 in general damages); and Bridgelall v. Mangar, [2001] O.J. No. 1523 (S.C.) (while sitting in his car in the parking lot of a bar, the plaintiff was attacked by the defendant with a two by four, and was awarded $5000 in general damages).
[^16]: [2007] O.J. No. 907(S.C.) (“Linov”).
[^17]: Linov, at para. 37.
[^19]: Megeval v. Megeval, 1997 3721 (BC SC), [1997] B.C.J. No. 2454 (S.C.); Shaw v. Shaw, 2012 ONSC 590, 9 R.F.L. (7th) 359; Bird v. Kohl, 2012 BCSC 1424, 27 C.P.C. (7th) 157. I have adjusted the amount of the damages awarded in each case to reflect inflation.
[^20]: S. (L.N.) v. K. (W.M.), 1999 ABQB 478, 246 A.R. 60; Wandich v. Viele (2002), 2002 49549 (ON SC), 24 R.F.L. (5th) 427 (Ont. S.C.); Van Dusen v. Van Dusen, 2010 ONSC 220, [2010] O.J. No. 313.
[^21]: 2018 852 (Ont. Sm. Cl. Ct.), at paras. 35-36.
[^22]: 26 B.C.L.R. (3rd) 535, at para. 8.
[^23]: TCF Ventures Corp. v. The Cambie Malone’s Corporation, 2017 BCCA 129, 95 B.C.L.R. (5th) 346, at para. 43.
[^24]: [2008] O.J. No. 25 (S.C.) (“St. Prix-Alexander”).
[^25]: St. Prix-Alexander, at para. 103.
[^26]: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at p. 617.
[^27]: Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, at para. 197.
[^28]: Carr v. Ottawa Police Services Board, 2017 ONSC 4331, at para. 249.