William M. Leahey is the Canadian family law lawyer who is working in this field since 1980.
An abuser's estate fair game-judge; Ruling allows woman to sue alleged perpetrator even after death…..
A lawsuit claiming damages for childhood sexual abuse can be pursued even after the alleged perpetrator's death, a Nova Scotia judge has ruled. In a decision that extends the deadline for launching such actions Justice William Kelly of the Supreme Court has allowed an Ontario woman to sue the estate of her brother, who died in 1998.
The woman claims her brother, who was seven years older, physically and sexually abused her 45 years ago, during their childhood in a village near Halifax. The judge, in interim ruling made public Wednesday, acknowledge it will be difficult for those administering the estate, valued at about $215,000, to mount a defence.
But to strike out the claim on the basis of this prejudice alone one would almost have to conclude that in the circumstances of the death of a defendant no similar action against an estate could survive, "Justice Kelly wrote. To so conclude would not advance respect for the administration of justice and would be an unjust comment on the capacity of a trial court to ensure a fair trail. Family members can testify to compensate for the loss of the main as a witness, he added. And the delay in bringing the case to trial will have an impact on the memory of witnesses on both sides.
The Woman's lawyer, Bill Leahey says the case is the first to test limitation periods, introduced in the mid-1990s, on launching lawsuits based on sexual abuse. This is going to have wild ranging impact, he said Wednesday. The limitation period defence has been removed for practical purposes in sexual abuse cases. The judge allowed the claim to proceed even though the woman alleges she was abused in the late 1940s and early 1950s, when she was between age 10 and 16..
The law allows actions to be filed within four years of an alleged victim becoming old enough to sue, or up to four years after the person becomes aware though therapy or other treatment that abuse occurred.
The woman launched the action in 1999, after her brother's death but within two years of starting therapy that linked her depression troubled relationships and medical problems such as stomach pains to the alleged abuse. The ruling also establishes that a claim for damages for breach of "fiduciary" duty - a person's duty to protect a more vulnerable person - can survive the limitation deadline. Mr. Leahey says that has implications for people who claim they were abused by a parent, older sibling, teacher, doctor or other authority figure.
People who are out there who were abused in their childhood and are now adults and think they can't sue now have the right to sue. Mr. Leahey expects judges will want accusers to account for failure to launch action while alleged abuser was alive.