13. In an action by or against the heirs, next-of-kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

See also Schnurr B.A., "Estate Litigation - Requirement of Corroboration", 5 E.T.Q. 42.

Due to the evidentiary difficulties of these types of claims, one of the first steps that a claimant should consider taking is to obtain an expert's opinion.

The expert's opinion should contain evidence for the Court to consider with respect to such things as the recollections of the claimant, the details of abuse over the years and the results of both the mental and physical ramifications of that abuse.

To further assist, every effort should be made to obtain supporting corroborative evidence from family, friends and neighbours. In my view, anyone who has even a brief recollection of instances, such as the police showing up at the house for no apparent reason, episodes of yelling and screaming, or witnessing the actual physical attacks, can make or break a case.

 It seems to me that, given the frailties of the evidence that must be led, one really must obtain a comprehensive and supportive expert's opinion, at a minimum.

Another precautionary consideration that should be reviewed with any child who is considering pursuing a claim for breach of fiduciary duty of parental obligations, is the nature of the evidence that must be led. In order to succeed, the child must be prepared to give full and frank disclosure of his/her physical and mental condition - and in many cases, this won't be easy.

All the best, Ian and Suzana.

For example, if a child who has been treated unequally grew up in a home where he or she suffered through instances of physical violence, as between the parents and him or herself, this may be the type of fact situation to consider when looking to pursue a claim for breach of fiduciary duty of parental obligations. Similarly, if the unequally treated child lived in a home that was constantly in turmoil, as a result of a chronically alcoholic parent, this situation should also be considered in the context of the fiduciary obligations of a parent.

In our view, one must find several compelling supporting facts to bolster any claim of breach of fiduciary duty or breach of parental obligation. Such facts should also be combined with a clear and identifiable estrangement as between parent and child.

Parental Obligations

In the decision of M. (K.) v. M. (H), the Supreme Court of Canada considered the whole concept of what is meant by the term "parental obligation".

The Court considered this issue in the context of a particularly gruesome and egregious set of facts.

In M.(K.) v. M.(H.), the Supreme Court of Canada examined the parent-child relationship in the circumstances of long-standing allegations of incest and abuse by a parent to a child.

At the trial, the child retained a psychiatrist who testified that while the child had briefly dealt with the issues of incest in her early adulthood, she did not have an emotional awareness of the situation and was not able to assess her situation rationally.

The child sued her father for damages arising from the incest or, in the alternative, for the infliction of mental distress. Further damages were claimed for breach of parent's fiduciary duty to care for and minister to his child.

Counsel for the child argued that the incest constituted not only the tort of assault and battery but also a breach of fiduciary relationship between parent and child.

In a future blog, we will address the question of the fiduciary duty between a parent and a child, and discuss what the Court held in this important case.

All the best, Suzana and Ian. --------