Court File and Parties

COURT FILE NO.: CV-21-79 DATE: 2023/04/17

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Shauntal Campeau-Proulx Shauntal Campeau-Proulx as Estate Trustee of the Estate of Maci Bancroft Shauntal Campeau-Proulx as Litigation Guardian for the Infant Zayden Bancroft Plaintiffs

– and –

Nicholas Bancroft Sarah Bercier Defendants

Counsel: Lister Beaupre, Counsel for the Plaintiffs (James Stevenson – Counsel) Unrepresented (for Nicholas Bancroft and Sarah Bercier)

HEARD: March 17, 2023

Ruling on motion for judgment

Leroy, J.

Introduction

[1] Maci Bancroft was born January 4, 2017. Tragically, she drowned in a bathtub on June 15, 2019, while in the care of her father Nicholas Bancroft, during the inaugural unsupervised weekend access visit. The Plaintiffs are Maci’s mother, Shauntal Campeau-Proulx, older sibling, Zayden Bancroft, and Maci’s estate. The parents are estranged. The defendant Sarah Bercier was present in the father’s home at the time of the drowning. Zayden was there for access as well.

[2] The statement of claim was served on July 27, 2021. The defendants confirmed through counsel they would not defend the claim, citing inability to fund counsel and their intention to make assignments in bankruptcy once damages were assessed. The defendants were noted in default on September 15, 2021.

[3] This attendance is a motion under Rule 19.05 in respect to the claim for findings of liability and unliquidated damages which; notwithstanding the defendants’ default, need to be proven.

Issues

[4] The issues for this motion are liability, damages and costs. Notice of the motion to the defendants is not required.

[5] Shauntal Campeau-Proulx seeks damages of $150,000 for her loss of care, guidance and companionship resulting from Maci’s death. On behalf of Zayden, she seeks damages of $40,000 for the same losses. The estate of Maci Bancroft, by Shauntal Campeau-Proulx, seeks damages of $7,500 pursuant to subsection 38(1) of the Trustee Act, RSO 1990, c. T.23 for pain and suffering that Maci suffered between the negligent event and her death. The plaintiffs are seeking pre-judgment interest at the rate of 5% from June 15, 2019 together with costs in the amount of $10,000 all inclusive.

[6] Ms. Campeau-Proulx’s claim for punitive damages was withdrawn with prejudice by counsel by correspondence directed to my attention on April 4, 2023.

[7] The plaintiffs seek language in the judgment specifically declaring that the liability resulting from this action not be discharged in a bankruptcy proceeding. They rely on subparagraph 178(1)(a.1)(ii) of the Bankruptcy and Insolvency Act.

[8] I will discuss these issues in order as follows:

i. Subparagraph 178(1)(a.1)(ii) of the Bankruptcy and Insolvency Act; ii. Liability of the defendants to the plaintiffs for damages for the loss of care, guidance and companionship resulting from Maci’s death; iii. Entitlement of Maci’s estate pursuant to s. 38 of the Trustee Act for damages for pain and suffering that Maci suffered between the negligent event and her death; iv. Assessment of damages; and v. Costs and pre-judgment interest.

Subparagraph 178(1)(a.1)(ii) of the Bankruptcy and Insolvency Act

[9] That paragraph provides that an order of discharge does not release the bankrupt from an award of damages by a court in civil proceedings in respect to bodily harm or wrongful death intentionally inflicted or for sexual assault.

[10] The coroner concluded Maci’s death was accidental.

[11] The submission in the factum is that damages for wrongful death are not to be discharged in bankruptcy proceeding whether there was an intentional infliction of harm or not. Plaintiffs concede there is no evidence of intention to cause harm. It was reported by the OCL social worker that Mr. Bancroft reported the same feelings of grief, sorrow, guilt and mental anguish as would any parent in these circumstances.

[12] Counsel in submissions acknowledged that damages assessed in this matter are not protected from discharge under subparagraph 178(1)(a.1)(ii) of the Bankruptcy and Insolvency Act. This claim is dismissed. Whether the judgment for payment in this ruling is discharged in the bankruptcy proceeding will rest with the purposes and principles of the Bankruptcy and Insolvency Act and the ruling of that court.

Liability of the defendants to the plaintiffs for damages for the loss of care, guidance and companionship resulting from Maci’s death

[13] The OCL report after thorough investigation concluded that Maci’s parents both struggled with mental health and substance use through much of their youths. Their life experiences, though different from one another, created developmental gaps that derailed their ability to cope with the level of chronic stress they experienced as children. They each sought independence when they were very young and experienced emotional dysregulation in the absence of supportive adult relationships. Their relationship with one another was fraught with conflict.

[14] The evidence marshalled by state investigation is uncontroversial. Most of the applicant’s narrative derives from the defendants.

[15] When Maci passed, Ms. Campeau-Proulx had primary care of the children. The weekend of her death was during Mr. Bancroft’s inaugural unsupervised access time. Sarah Bercier met Mr. Bancroft’s children approximately 7 months before Maci’s passing. On the morning of June 15, 2019, Mr. Bancroft was bathing Maci in the upstairs bathroom. There were approximately six centimeters of water in the tub. Ms. Bercier was in an adjacent bedroom with Maci’s older brother, Zayden. Mr. Bancroft left Maci sitting in the tub unattended while he went to the basement to do laundry. Mr. Bancroft said that as he passed the room occupied by Ms. Bercier, he asked her to listen for the baby. It is unclear which of them discovered Maci prone and unresponsive in the water minutes later. Tragically, Maci drowned.

[16] The CHEO records suggest that although Maci was capable of sitting without support, she was unable to achieve a sitting position on her own and in cases when she fell from a sitting position, she did not put her hands out to protect herself; rather her head broke falls.

[17] In concluding that Maci’s passing was accidental, the coroner speculated that the incident could have been seizure related.

[18] A cause of action for negligence arises if the following elements are present:

• The claimant must suffer some damage;
• The damage suffered must be in fact caused by the conduct of the defendant;
• The defendant’s conduct must be negligent, that is, in breach of the standard of care set by the law;
• There must be a duty recognized by law to avoid this damage;
• The conduct of the defendant must be a proximate cause of the loss; and
• The plaintiff must not be contributorily negligent and must not have voluntarily assumed the risk.

[19] The issue vis-à-vis Mr. Bancroft is assessment of damages.

[20] Given Maci’s age and challenges the court has no difficulty in concluding that liability in negligence is made out against Nicholas Bancroft. He knew of Maci’s special needs and impairments. He knew of the diagnosis of global developmental delay and the symptoms. As the parent, he had a special relationship of control and with it an affirmative duty of care for Maci’s safety. Although he will carry the guilt through his life, he chose an inopportune time to abandon his supervisory function during an infant’s bath-time to perform tasks related to laundry. If he had foregone the laundry and stayed in the bathroom, Maci would not have drowned.

[21] The same cannot be said for Ms. Bercier. The plaintiffs’ claims against Ms. Bercier are dismissed. A cause of action in negligence in these circumstances and on the evidence presented is not made out. Her status is no more than Samaritan. That she cohabited with Mr. Bancroft and had known the two children for about 7 months does not presume a voluntary assumption of responsibility to the children or the parents. While Mr. Bancroft may have asked her on the way by to keep a listen for Maci, we don’t know if she heard and even if she did, at most her non response amounts to nonfeasance for which there is no liability. Mr. Bancroft could not download his duty of care without Ms. Bercier’s undertaking. There is no evidence that Ms. Bercier undertook a duty of care to the plaintiffs, or indeed that the plaintiffs expected one. In many of such conflicted domestic situations for many reasons the biological parent resents involvement by the “new” partner.

Entitlement of Maci’s estate pursuant to s. 38 of the Trustee Act RSO1990 c. T23 to damages for pain and suffering that Maci suffered between the negligent event and her death.

[22] This claim is dismissed.

[23] This section permits the estate trustee of Maci’s estate to maintain an action for damages for pain and suffering Maci suffered as result of her father’s negligence up to her death, the same as Maci would have been entitled to if living. In the circumstances at bar, that would include general damages for pain, suffering, inconvenience and loss of amenities of life she endured from the moment she was injured to the moment of her death. The law restricts the allowance under this heading of damages to the period Maci survived after the time she fell into the water until she expired.

[24] The burden of proof to prove damages is on the plaintiff.

[25] While the court is sensitive to the fact that Maci died by drowning, in view of the fact Maci’s death was almost instantaneous and evidence of suffering was not presented, damages cannot be proven to any standard under this heading.

[26] Counsel acknowledged in submissions that the evidentiary basis for this claim was not make out.

Assessment of damages

[27] Mr. Bancroft was fully at fault. The plaintiffs are to prove their damages to a reasonable balance of probability. Finders of fact are not expected to determine with mathematical precision the exact loss each has suffered by reason of Maci’s death.

[28] The FLA, s. 61 contemplates recovery of damages flowing directly from the death of a child under two headings. In this file, we are concerned only with compensatory general damages for loss of care, guidance and companionship the plaintiffs might reasonably have expected to receive from Maci had she not died.

[29] Other than in exceptional circumstances none of which before the court in this case, our law does not compensate plaintiffs for grief, sorrow or mental anguish suffered as result of Maci’s death, nor is there any inference that this process somehow places a value on Maci’s life.

[30] The law has always been cautious in allowing damages for mental suffering, for the reason that such damages are more sentimental than substantial, depending largely upon temperament and physical and nervous condition. The suffering of one under precisely the same circumstances would be no test of the suffering of another, and there being no possible standard by which such an injury can be even approximately measured, they are subject to many, if not most, of the objections to speculative damages. Easily stimulated and impossible to disprove they are said to fall within all the objections of speculative damages, which are universally excluded because of their uncertain character. This perspective was approved by the court of appeal in Fiddler v. Chiavetti, 2010 ONCA 210 at paragraphs 52-56.

[31] Although the words care, guidance and companionship signify different qualitative supports, they are not siloed. The benefits of care and guidance will weigh on the quality of relational companionship, just as valued companionship will enhance or detract from expectations for relational care and guidance. They are generally interdependent supports that supplement one another.

[32] Conceptually, the damages flowing from the loss of care, guidance and companionship entail evolving mutuality. What begins as a flow of benefit from parent to child overtime evens out and then transforms into benefit flowing from child to parent.

[33] While the Court acknowledges the plaintiffs’ grief and sorrow consequent to Maci’s death, Maci’s circumstances do not attract damages for loss of care and guidance. Maci was diagnosed, after Ms. Campeau-Proulx observed symptoms consistent with what was established post-mortem as Mowat-Wilson Syndrome, with Global Development Delay. Her mother, as a responsible parent pursued mitigating assistance including OT and advice from CHEO.

[34] Mowat-Wilson syndrome is associated with cognitive impairment and with multiple health defects caused by genetic mutation or deletion of the ZEB2 gene. Major signs of this rare genetic disorder include distinctive facial features, intellectual disability, delayed development, intestinal disorders, constipation, incontinence, seizures, congenital heart disease, spasticity, hypotonia and major language difficulty. Most individuals with Mowat-Wilson syndrome are non-verbal. Speech is absent or severely impaired. Many with this condition can understand others’ speech and some use sign language to communicate. They will have delayed development of motor skills such as sitting, standing and walking. Although not every individual with this condition experiences all symptoms, Maci was symptomatic. Individuals with Mowat-Wilson Syndrome typically have friendly and happy personalities but need intense medical attention and personal care through their lives.

[35] As to whether the genetic anomaly directly affects life expectancy, the evidence is unclear. There is a report of a male with the syndrome alive at the age of 61. It is accordingly possible for a person with this syndrome to live through to middle age; however, such individuals are persistently susceptible to collateral complications including pneumonia, bowel blockage, bladder infection and the medical implications associated with physical inactivity and chronic incontinence. There is no way to know what Maci’s life span or circumstances might have been.

[36] Maci would have never provided guidance to the plaintiffs. Guidance is one’s source of direction in life. It includes advice, assistance, education, training or discipline training that helps one interpret what is happening around us, essentially establishing standards to live by. It usually begins with benefit from parent to child. Not infrequently as children develop, they will acquire skills and knowledge they can pass to their parents. Think technology, social media and progression housing. Children are important to their parents as teachers as well as the other way around. Where the evidence supports it, an award can include a sum for the guidance that a child can give to a parent.

[37] The word care in the ordinary sense means to look after, to provide assistance, generally offering security. The evidence does not support the premise that Maci would have ever provided care to the plaintiffs.

[38] The assessment at bar is limited to valuing the loss of companionship suffered by the mother and Zayden arising from Maci’s death, in the absence of the interdependent losses of care and guidance.

[39] The companionship of a parent and a child is a truly unique pleasure. The joy of sharing experiences with one’s child is hard to surpass, whether it be sports, culture, conversation or play. What could be more marvellous than to hear one’s child laugh, to cuddle before bed or to observe interaction between siblings. Companionship with one’s child is one of the most prized of human experiences. To lose it is one of life’s greatest losses.

[40] Companionship evolves over time. Any new parent knows of the deep life-altering responsibility demanded by the needs of an infant child. It is an all-encompassing full-time task. Single parents carry an enormous burden.

[41] The quality of companionship without the collateral accoutrements of guidance, care and meaningful dialogue is necessarily lessened in value.

[42] It is not an easy task to assess in dollars for the loss of companionship of a child. No amount of money can replace Maci in the affection of her mother and older sibling. The award is intended to be fair and reasonable to both sides, neither oppressive nor extravagant; basically a fair balance.

[43] The assessment involves consideration of uncertainties and contingencies of life. Such contingencies generally work to reduce the total amount of compensation. This usually involves factoring into account such matters as the state of Maci’s health, the possibility of illness or early death, the possibility of estrangement and possibility of premature death of the plaintiffs. By example, the plaintiff Shauntal Campeau-Proulx was involved in a serious motor vehicle accident without seatbelt during Maci’s life.

[44] The plaintiffs have lost Maci’s already developing affectionate demeanour, the ready smile and high fives.

[45] I must also consider the real likelihood of alternate care arrangements for Maci having regard to her future prospects. I take notice of Community Living services in the city. As noted by counsel, residence in Community Living residences does not signify the end of opportunity for continuing companionship; however it does tend to attenuate it.

[46] As to the value of Zayden’s loss of companionship resulting from Maci’s death the same considerations apply. Zayden embraced Maci as his little sister. One would expect in a perfect world that he would have advocated for her through their formative years.

The upper range

[47] Although the loss in the circumstances of this family is not in the upper range, it is incumbent on the Court to identify the upper range for loss of care, guidance and companionship in the jurisprudence.

[48] In Fiddler v. Chiavetti, 2010 ONCA 210 where Amanda Fiddler, age 14 with special needs, including ADHD, died in a motor vehicle accident, the defence strategy was to minimize the plaintiffs’ damages by emphasizing Amanda’s behavioural issues and likely poor prospects for any meaningful contribution to the family in the form of care, guidance and companionship, the parents’ drug and alcohol abuse, that they were variously lazy, deceitful and together they formed a dysfunctional family. The jury’s response was to award the mother damages for the loss of care guidance and companionship from Amanda’s death in the amount of $200,000, nearly double the upper juridical limit. The Court of Appeal accepted that the appropriate range of damages for the mother’s loss in the circumstances of that case was between $40,000 and $125,000 and reduced the damage award accordingly. The Court was unwilling to tamper with the jury’s conclusion that in all the circumstances the mother’s entitlement properly assessed at the highest range for appropriate damages.

[49] At paragraph 76, the Court confirmed that Court’s conclusion in To v. Toronto Board of Education (2001), 55 O.R. (3d) 641 that the “cap” established in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 SCR 229 for non-pecuniary general damages in personal injury cases does not apply to damages for loss of care guidance and companionship.

[50] The Court cited Osbourne A.C.J.O. in To at paragraph 30:

Each case will be given separate consideration to measure the immeasurable and incalculable. Each case is to be considered in light of the evidence and circumstances in light of the particular family relationships in the case.

[51] The Court offered a method by which an amount that reflected the range of damages for guidance care and companionship in past years could be adjusted for a current value – beginning at paragraph 79. In January 2005, the month of Amanda Fiddler’s death, the CPI was 105.3. In June 2019, the CPI was 136.5. That suggests that the high end of the damage range for loss of care, guidance and companionship for a mother in June 2019 is $163,750.

[52] The personal injury compendiums for general damages curated by various writers never seem to produce results one can copy-paste. No two fact situations are identical. As noted, each case is to be considered on a principled basis in light of the evidence and circumstances of the particular family relationships in the case.

Conclusion on general damages for loss of companionship for Mother and Sibling

[53] The Court’s task is to assess the value of the loss of companionship that mother and older sibling suffered as the result of Macy’s death in tragic circumstances. For reasons stated earlier, the Court deliberately avoids attempts at placing a value on Macy’s life or a quantification of the grief, sorrow or mental anguish suffered by the plaintiffs as result of Maci’s death.

[54] While the Court acknowledges the heartbreak caused by Maci’s tragic untimely death, the quality of companionship available to the plaintiffs was necessarily compromised by Macy’s inability to offer reciprocal care and guidance, two aspects one usually associates with companionship. I have also considered the special contingencies regarding compromised life expectancy associated with Maci’s symptoms and the likelihood for institutional placement when she would have qualified.

[55] Accordingly, the general damages for loss of companionship arising from Maci’s death are fixed as follows:

Mother - $60,000 Zayden - $15,000

[56] As noted earlier, the claim by Maci’s estate pursuant to the Trustee Act is dismissed as are the plaintiffs’ claims in this proceeding for relief under the Bankruptcy and Insolvency Act and the claim by the plaintiff Shauntal Campeau-Proulx for punitive damages.

[57] All claims against the defendant Sarah Bercier are dismissed.

[58] Judgment to issue:

i. Shauntal Campeau-Proulx shall have judgment against Nicholas Bancroft in the sum of $60,000 for damages for loss of care guidance and companionship caused by Maci’s death; ii. Zayden Bancroft by his litigation guardian Shauntal Campeau-Proulx shall have judgment against Nicholas Bancroft in the sum of $15,000 for damages for loss of care guidance and companionship caused by Maci’s death; iii. Costs of the claim against Nicholas Bancroft are fixed in the sum of $10,000. iv. The plaintiffs Chantal Campeau-Proulx and Chantal Campeau-Proulx as litigation guardian for the infant Zayden Bancroft shall have pre-judgment interest on the damages awarded as the rate of 2.5 % per annum, commencing July 20, 2021. v. The other claims are dismissed without costs.

The Honourable Mr. Justice Rick Leroy Released: April 17, 2023