When they are young, children may find it difficult to control their actions and think about the potential consequences of their actions. However, they can sometimes cause damage to a third party, resulting in an obligation to repair the harm that will be imposed on his parents or guardians.
In what cases will parents be held responsible for the wrongful act committed by their child? What defences can they put forward to the Court? And from what age does a child become responsible for his own actions?
Mr. Lambert explains what the law provides for in such cases.
Parental responsibility
First of all, it is necessary to target who is legally responsible for the fault of the minor, that is, the persons who hold parental authority according to the Civil Code of Quebec. This authority is exercised by both parents together; they have an obligation, among other things, to supervise, educate and maintain the child.
Even if the child does not live under the same roof and even if the parent does not have custody of the child, he remains responsible for it, unless he has lost parental authority (deprivation of parental authority).
A presumption provided for by law
If a fault has been committed by a minor, the holders of parental authority are presumed to be at fault. Indeed, the law considers that if the child had received a good education and had been well supervised, he would not have committed the fault that caused the damage.
This presumption can be challenged by demonstrating that the parents’ conduct with respect to the custody, supervision and upbringing of the child does not demonstrate fault. They can provide evidence such as report cards and testimonials from people who know the family.
On the other hand, if, for example, parents let their children play with dangerous objects unsupervised, it will be difficult to challenge the presumption. Similarly, if the child has behaved in this way several times before and the parents have done nothing to show him that he is doing badly, the presumption will also be hard to identify.
The judge will make his decision by analyzing how the parents keep, supervise and educate the child in question, while taking into account the age, character and power of discernment of the child, the activity practiced at the time of the event and finally, the predictability of the minor’s conduct.
For example, a child with a difficult temperament and who is normally disobedient must receive a stricter degree of supervision than a child called a “model”. On the other hand, if the child who is calm and still doing well suddenly decides to throw a stone at one of his friends and injures him, the judge will be able to determine that the behavior was unpredictable.
The responsibility of the caretaker, supervisor and educator
According to the law, parental authority may be delegated temporarily, leaving the child under the responsibility of a school or daycare, a sports coach, a facilitator in a summer camp or a babysitter, for example. When in their custody, these persons have the right of control over the child and are responsible for his or her well-being; they act
in loco parentis
, i.e. they temporarily take the place of the parents.
To defend himself in the event of harm caused by a minor in his custody, the guardian, supervisor or educator must demonstrate that he has behaved responsibly, taking necessary and reasonable precautions. He may also show that the child was no longer in his custody at the time he committed the fault or that the act was unforeseeable.
On the other hand, even if the child is no longer under supervision, if he has been poorly educated by the guardian, supervisor or educator, the latter may still be held responsible for the act complained of.
As an example, let’s take the case of a martial arts instructor who shows a child how to hurt someone, but without explaining that what they do in class with protective equipment should not be done at the schoolyard on their friends.
Finally, in the case of a person who is not paid or who receives only pocket money, such as a babysitter, the law is less strict. It will have to be proved that this person improperly kept, supervised or educated the child and there is no presumption provided for by law.
The fault of the minor
The closer he comes of age, the more the minor is presumed to be endowed with reason, thus being able to hold himself responsible for the fault he has committed. The age of seven is normally recognized as the age from which the child develops the power of discernment. However, the Court will look at various factors specific to the child in question to determine whether he or she is endowed with reason and may even have recourse to experts in education or psychology.
The child can thus also be responsible for his actions, in whole or in part. For example, if the child and his parents are all sued, the judge will analyze the participation of each in the event.
Compensation for misconduct committed by a minor
As in any civil liability case, to win your case, you will have to prove the existence of fault and damage, as well as a causal link between the two. You will also have to establish the minority of the person who committed the fault and parental authority (or his delegation, express or tacit).
Keep in mind that the facts and circumstances of each case can greatly vary your chances of success in a civil lawsuit and that a lawyer can help you maximize them. Contact our office now so that we can analyze your file.
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