Eight years ago, Diane Evans received word that Peter Kaczmarczyk, the man who had sexually assaulted her multiple times a week when she was between the ages of about five to 12, had died.
Some people might wonder if a survivor experiences a sense of relief when their perpetrator dies, but for Diane, there was only anger. Kaczmarcyk, who had successfully delayed his criminal trial for eight and a half years, had made his final escape from justice.
What's more, Diane learned of Kaczmarcyk's demise through a piercing and taunting email from her stepbrother. He wrote: "Thank you for greatly contributing to the death of my father. May you get your just rewards."
While delays in the criminal courts unjustly robbed Diane of the opportunity to confront her abuser, she still wanted justice. Diane brought a civil claim against Kaczmarcyk's estate and the Catholic Children's Aid Society of Toronto (CCAST), which was involved with Diane's household throughout the period of abuse. After a three-week trial in June 2025 the jury members signalled they believed Diane with a verdict that sent an unequivocal message: society will not tolerate these heinous acts and wants to justly compensate survivors.
Despite the jury's verdict, both defendants brought post-jury motions to escape liability or sharply reduce the jury's award, among other relief. In this blog post, I examine Justice John Callaghan's post-verdict rulings denying the defendant's relief and ruling in Diane's favour. Both the jury and the judge gave Diane the justice that she wanted and deserves.
Even then, this matter is still not over for Diane because there is still time for the defendants to appeal the jury's verdict and the judge's decision. Will they?
Shocking Abuse.
Diane's childhood home was the site of significant familial dysfunction. CCAST became involved in the home due to abuse directed at Diane's older brother and her mother's need for frequent respite due to mental health issues.
Between from 1956-62, Diane was periodically removed from the home to live elsewhere; when she did live at home, she a was sexually assaulted approximately three times a week when she lived at the home by her mother's live-in boyfriend, Peter Kaczmarcyk. The abuse continued for seven years until Diane was courageous enough to tell Kaczmarcyk that she would report the abuse if he did not stop. The sexual abuse did stop, but the physical abuse of the children in the home continued.
Despite being in and out of the home during the years when the sexual assaults took place, there was no evidence the CCAST was aware of this abuse. However, we argued that it had failed to address the dysfunction in the home.
We argued that had CCAST been more attentive and diligent, CCAST would have uncovered the assaults, and the CCAST could have taken steps to protect her and stop the sexual abuse. Further, although Diane disclosed abuse (though not the sexual abuse) that she and her younger brother were experiencing during a meeting with CCAST facilitated by her school guidance counsellor when she was about 16; we argued that the CCAST failed to investigate or take any proper steps to help at that time again.
It is important to note just how horrific the abuse Diane described was. Dr. Philip Klassen, a psychiatrist working with sexual abuse survivors who was retained by the CCAST as its own expert witness, testified the abuse relayed to him by Diane was so disturbing it was "one of the worst cases of child sexual abuse he had ever encountered." This statement demonstrably had resounding effect.
Significant Damages.
After a three-week trial, the jury awarded Diane significant damages. As Justice Callaghan wrote in his post-verdict motion decision, "From the jury's verdict, it can be inferred that the jury accepted the plaintiff's evidence of the repeated years of sexual assaults as a child by Peter Kaczmarczyk and thus Dr. Klassen's opinion."
The jury found both defendants liable to the plaintiff, and awarded $400,000 in general and aggravated damages, past income loss of $940,000, and future counselling of $50,000. At the CCAST's request (and with the agreement of the other parties) the jury apportioned 75 per cent against the Estate and 25 per cent against the CCAST. The jury also awarded $1,000,000 in punitive damages to the estate only.
After the jury rendered its verdict, both defendants brought post-verdict motions; the estate to set aside or reduce the punitive damages award and the CCAST to set aside any liability that it might have given how heinous the abuse by Kaczmarcyk was. All parties made arguments regarding the pre-judgement interest payable.
Setting Aside Punitive Damages.
The Estate sought to have the punitive damages award set aside. It advanced three arguments:
- Kaczmarczyk's death means punitive awards cannot serve as a deterrence and will only punish his heirs.
- Bail conditions set by the criminal court could be seen as punishment which "ought to vitiate the need for an award of punitive damages."
- The amount awarded is out of step with awards for other cases.
Justice Callaghan rejected all three arguments, noting:
- First: The defendant's objection to the function of deterrence is too narrow. Punitive damages serve to not only deter future negative conduct by a defendant, but also to deter egregious conduct by others. Justice Callaghan noted that "these latter objectives still resonate even though Peter Kaczmarczyk is dead."
Further, heirs of an estate are only entitled to the value of an estate once it has settled all its obligations and debts. Of significance, the judge also stated:
"The abuser was never punished, nor did the abuser show any remorse. The Estate never acknowledged the abuse but rather took the position that the allegations were fabricated after the plaintiff learned that Peter Kaczmarczyk won $8 million in a lottery. In my view, there was a clear factual foundation for an award of punitive damages, and the amount is reflective of the jury's acceptance of the severity and duration of the abuse, and the fact there was no punishment or acknowledgement of the abuse." - Second: Even if bail conditions and criminal charges could constitute a penalty or punishment, it was for the jury to weigh and consider. The jury was never asked to consider either and there was scant evidence in the record about either.
- Third: A trial judge can only reject a jury verdict "when she or he considers that there is no evidence to support the findings of the jury," and in his view, there was evidence for the jury's finding that punitive damages were appropriate.
On this final point, Justice Callaghan referred in detail to Hill v. Church of Scientology of Toronto ("Hill"). In Hill, the jury awarded $800,000 to the plaintiff in punitive damages. Justice Callaghan noted that the Hill award, when adjusted for inflation, would be significantly more than the $1 million awarded in this case (approximately $1,500,000). Although the two cases are factually different, on appeal, the Supreme Court of Canada affirmed that large punitive damages awards made in Hill serves a rational purpose.
Specifically, Justice Callaghan quoting from Hill, noted that in cases where "the defendant's conduct is truly outrageous" and where the Defendant's actions demonstrate that "there was such insidious, pernicious and persistent malice" as to be deemed and "exceptional" case, punitive damage awards are "[t]he most effective means of protection" for society, as it will supply "the knowledge that fines in the form of punitive damages may be awarded in cases where the defendant's conduct is truly outrageous."
In Diane's case, the jury clearly accepted our argument that Kaczmarczyk's actions were exceptionally heinous and deserving of a large punitive damage award.
Justice Callaghan suggested that awarding "punitive damages and the amount is reflective of the jury's acceptance of the severity and duration of the abuse, and the fact there was no punishment or acknowledgement of the abuse." He also wrote that even if he felt the award was too high, he would not interfere as "this is the role of the Court of Appeal, not a trial judge."
Joint and Several Awards.
Section 1 of the Negligence Act, provides that concurrent tortfeasors are jointly responsible for the damages to a plaintiff. In practical terms, this means a plaintiff can recover 100 per cent of damages awarded from any of the tortfeasors who are found to be liable, regardless of whether the trier of fact apportions them even just one per cent of the liability.
The CCAST argued that Kaczmarczyk's sexual assaults were so heinous that there should not be any liability for payment put on the CCAST. As an alternative, the CCAST sought an order that the defendants were severally, not jointly, responsible for the loss, and would. As well, the CCAST argued that the Negligence Act applies only to damages arising out of fault or negligence, and that the intentional conduct of Peter Kaczmarczyk was neither.
Justice Callaghan rejected both arguments, clearly stating that the jury found there to be enough evidence to not only find the CCAST liable, but to also apportion 25% of liability to the CCAST. As well, Justice Callaghan rejected the argument that the intentional assault is neither fault nor negligence and that common law in Ontario has accepted that intentional torts fall within the definition of "fault." The CCAST thus remained liable to pay for Diane's damages.
Clarifying Interest Calculations.
In this case, Diane was entitled to pre-judgment interest on the general and aggravated damage award and the loss of past income award. However, the parties could not agree on either the date from which the interest on the awards should start accumulating, nor the applicable interest rate.
On the issue of date, although the abuse took place in the 1950s and 1960s, according to older legislation in effect prior to 1989, written notice of a claim was required to begin the clock on pre-judgment interest.
The current Courts of Justice Act (the "Act") now directs that interest should accrue from the date when the cause of action arose, subject to the discretion of the court as it considers factors under section 130 of that Act. Diane thus was not able to claim interest going back to when the abuse started, though it has been impacting her since then.
Here, Diane argued that pre-judgment interest should start accruing from 1992, (when she sought treatment for the consequences of the sexual abuse while in hospital). The defendants suggested the appropriate date would be 2019 (when the claim was served) or 2010 (when Diane discovered a recent photo of Kaczmarczyk on a lottery website).
Justice Callaghan concurred with the approach taken in L.R. v. S.P., 2019 ONSC 1737, holding: "the appropriate date for assessing when the cause of action arose is when the plaintiff draws a connection between the assaults and the harm caused. This may be inferred from the date when the plaintiff first sought therapeutic assistance." As such, His Honour decided interest should run from June 1992 on both general damages and pecuniary damages.
The question of which interest rate to use was also raised by the defendants. Section 130 of the Act sets the interest rate at five per cent by default for general damages in personal injury lawsuits, and around two percent for past pecuniary losses. Although the Act gives judges latitude to vary that rate, where appropriate, the onus falls on the defendant to provide evidence in favour of an alternative rate, including market interest rates.
In this case, Justice Callaghan concluded the Defendants submitted no evidence of market interest rates, and simply relied on the published prejudgment interest rates, which His Honour held was "insufficient" to give Him cause to vary the presumptive interest rate. The presumptive interest rates were thus confirmed.
In conclusion, the defendants were not successful in any of the arguments they put forward in the post-judgment motion, and on their arguments regarding lowering the interest rate and on when the start of the interest should run. The Judge thus declined to vary the interest rate.
Will a Long Journey to Justice Become Even Longer?
Diane has waited for justice since her abuse began at age five. For many years, while experiencing hardships compounded by this trauma, she believed she may not receive it. A chance discovery of a photo of her abuser gave her hope that he would face criminal charges. Repeated delaying tactics over eight and a half years allowed Kaczmarczyk to evade a criminal trial by the ultimate escape: death.
Diane's civil claim gave her the opportunity to achieve a sense of justice through compensation for what Kaczmarcyk's actions and CCAST's negligence took from her. The jury's decision, and the justice's own post-verdict motions decision ought to be a fitting end to her long battle.
However, even now, well past retirement age, Diane may be forced to wait even longer to close this hellish chapter in her life as the defendants still have a right to appeal for a few more weeks.
It seems wrong that while her abuser has been laid to rest, Diane may not be able to rest in her battle for justice if there is an appeal. And it would be tragic if she herself does not live to see the conclusion of this matter.
I felt honoured and humbled to be Diane's lawyer. Diane is truly a remarkable person.
Despite her childhood, she worked hard to better herself, make a good life for her and her family, and break the cycle of abuse she was in. She showed immense courage and resilience by fighting for justice, without backing down, for years. She deserves the justice the jury and the judge gave her at trial.
I hope the defendants will respect the jury's verdict and the Court's post-verdict rulings so she can begin the next chapter of her life. In particular, I urge CCAST to accept the Court's findings, refrain from an appeal, and do right by Diane.
CCAST failed to protect her when she was a child; it should not fail her now. Its resources would be better devoted to strengthening protections for children currently in care-so they never endure what Diane did-rather than to spend more money on appeal costs.
If you are a survivor of historic sexual abuse or assault, our team of trauma-informed Toronto sexual abuse lawyers are here to help. We will listen to you with compassion and empathy and your initial meeting with us is always a confidential free consultation with no obligation.