K.M.+v.+H.M.

KM v. HM: LaForest : __ Recovery for Breach of Fiduciary Obligation __ : Delay is no defense of fiduciary action. -Appellant seeks damages for incest occasioned as a result of reoccurring sexual assaults. -Appellant also seeks damages for a breach of fiduciary duty by her father. -At trial, judge did not refer question of fiduciary duty to the jury, so it has come to this court. -Consider //Norberg//, where we see the importance of considering equitable causes of action: McLachlin v. LaForest. McLachlin saw a fiduciary breach, LF did not. -But here, LF says that “ a breach of fiduciary duty cannot be automatically overlooked in favor of concurrent common law claims.” __ Fiduciary Obligations of a Parent: __ Equity imposes fiduciary obligations on parents. Hallmark of fiduciary obligations: on party is at the mercy of the other’s discretion. LF: we cannot identify limited “categories” of fiduciary relationships, because it is the nature of the relationship that is important. -The inherent purpose of family relationships imposes certain obligations on a parent to act in child’s best interests. -Here, fiduciary nature of relationship supports a liberal application of discovery rule.
 * Facts ** : Appellant is victim of incest by her father, rewarded with pop, potato chips and money for cooperation and silence. There were also threats. At age 10 or 11, appellant tried to tell mother and at age 16, told school counselor. Father had her recant to counselor and to lawyer for school board. At age 28, appellant sued father for damages arising from incest for breach of parent’s fiduciary duty. Jury assessed tort damages of $50,000.
 * Issues**: 1. Is incest a separate and distinct tort not subject to a limitation period? 2. Does incest constitute a breach of fiduciary duty by a parent not subject to any limitation period? 3. if a limitation period applies, is it postponed by reasonable discoverability principle?
 * Ratio: ** 1. A fiduciary duty cannot be overlooked in favor of concurrent CML claims, 2. Parent-child relationship meets the Frame test, so there is almost always a fiduciary obligation here.
 * Reasoning ** :
 * Based on Frame test, we see that a parent must owe fiduciary obligations to his/her child.
 * Equity has, in certain contexts, recognized a parental duty to protect economic interests of child; this does not limit range of obligations attaching to other aspects of relationship.
 * Canadian cases have recognized parent-child relationship as head of fiduciary obligation; US law does the same.
 * Delayed discovery: rules: 1. rule is applied where it is difficult for plaintiffs to immediately detect or comprehend the breach, 2. rule is applicable to confidential and fiduciary relationships.
 * Fiduciary obligation has not been raised in previous cases as an independent head of liability.