Suing for Family Violence in a Family Law Claim

From Clicklaw Wikibooks

Civil claims for family violence

The terms civil claims and tort claims are used interchangeably here. While most family law claims (e.g. claims for divorce, spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship., division of propertySomething which can be owned. See "chattels" and "real property.", etc.) are family law issues that are governed by legislationAn act; a statute; a written law made by a government. See "regulations." like the Divorce Act or the Family Law Act, the right to sue someone for inflicting violence is its own claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. in law. Claims for assault and battery are civil claims/tort claims, and exist outside of the Family Law Act.

Certainly, tort claims for abuse and violence can overlap with family law issues, but it helps to know that tort claims for abuse and violence arise independently from the Family Law Act and its treatment of family violence. The Family Law Act has its own definition of family violence (including non-physical forms), emphasizes its impact on decisions around the care of children, and provides specific mechanisms like protection orders that are discussed in the section of on Family Violence and the Family Law Act in this chapter.

Introduction to tort law claims

The word tort comes from the Latin word for wrong, and tort law deals with things like personal injuries, motor vehicle accidents, negligenceFailing to do something that a reasonable person would do, or doing something that a reasonable person would not do, which results in harm to someone else., assault and battery, trespass, etc. The legal definition of a tort is a breach of a duty owed by someone to someone else which gives rise to a cause of actionThe behaviour of a person that gives rise to a claim for relief. For example, a spouse's adultery gives rise to the other spouse's right to claim a divorce. The adulterous act is the cause of action for the divorce claim., like a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole in your lawn that someone might fall into. Generally speaking, these sort of tort claims aren't spelled out in laws the way that the rules against robbery or assault are set out in the Criminal Code. Tort claims are part of the common lawThe legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts; the system of justice used in non-criminal cases in all provinces and territories except Quebec., the law that the courts (as opposed to the legislature) have created and maintained for hundreds of years.

If a claim for assault and battery is made in a family law claim, it will be treated by a judgeA person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal. as a tort law claim, and bring common law principles and rules into the caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.".

Tort claims are not like criminal charges where the court can punish the wrong-doer with jail or a criminal record. The remedy for a victim of family violence is primarily restorative or compensatory. They would ask for an awardA mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration" and "family law arbitrator." of damagesAn award of money payable by one party to a court proceeding to another, usually as compensation for loss or harm suffered as a result of the other party’s actions or omissions. In family law, damages are usually awarded to one party in compensation for breach of contract or spousal abuse. See "breach of contract" and "tort." to make good the harm the person suffered and its consequences. Damages are money payments and may be awarded for, among other things:

  • pain and suffering resulting from the violence, sometimes just called general damages,
  • loss of enjoyment of life as a result of the impact of the violence,
  • past wages lost because of the violence,
  • future wages lost because of some inability, illness or other impairment resulting from the violence (this is sometimes referred to as lost earning capacity),
  • rehabilitation and job retraining costs, and
  • past and future medical care expenses related to the injuries suffered from the violence.

Damages can also be claimed as punitive damages or aggravated damages.

Aggravated damages are awarded when the wrongful actActs or omissions that are contrary to legislation, the common law or that are immoral or unethical even if not necessarily contrary to a legal principle. See "lawful." took place in humiliating or undignified circumstances or when the wrongful act was particularly horrendous. By law, aggravated damages are to be combined with general damages. Punitive damages are not intended as compensation to the victim, but rather are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature." They are an effort by the court to deter others from committing similar acts.

The most common tort claim in situations of family violence is a claim based on assault and battery. Assault technically means wrongfully threatening to harm someone. Battery means wrongfully attacking and harming someone. Assault and battery can include sexual assault, and a spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." can make a tort claim against their former spouse for sexual assault.

Starting a civil claim

A tort claim must be made by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the other reliefIn law, an order sought by a party to a court proceeding or application, usually as described in their pleadings. Where more than one order or type of order is sought, each order sought is called a "head of relief." See "action," "application" and "pleadings." asked for in the Form F3 Notice of Family Claim or Form F5 Counterclaim. Although a tort claim can be made on its own, without claims for things like divorce, parenting arrangementsA term under the ''Family Law Act'' which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time.", and so forth, if you want to make a claim in tort as well as other family law claims, it is very important to include all your claims in one proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." because otherwise you might not be permitted to bring the tort claim separately at a later date.

Tort claims can only be heard by the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.". The Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction." does not have the jurisdictionWith respect to courts, the authority of the court to hear an action and make orders; the limits of the authority of a particular judicial official; the geographic location of a court; the territorial limits of a court's authority. With respect to governments, the authority of a government to make legislation as determined by the constitution; the limits of authority of a particular government agents. See “constitution." to deal with tort claims.

The challenges of tort claims

This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence. It is only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence. Notwithstanding these difficulties, it can be empowering and liberating for a victimized spouse to hold an abusive spouse accountable for family violence and see justice done. If you have been sexually and/or physically assaulted, you should talk to a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." who is experienced in handling such claims and seek advice.

The first drawback of a tort claim is that you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your spouse. The law governing tort claims is not set out in a statuteAn act, legislation; a written law made by a government., like the Family Law Act or the Negligence Act, it's mostly based on the common law. In orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." to succeed in your claim, you will have to prove that the assault or sexual assault took place, and that injuries resulted. It is often quite complicated to prove injuries, especially where they are mainly psychological or emotional.

Lawyers, of course, are expensive. While you may get some of your legal costsA calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account, "bill of costs," "certificate of costs," and "lawyer's fees." awarded to you if you're successful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Lawyers who practise family law do not work on a contingency basis where they get paid out of the client's award. They charge by the hour.

Secondly, even if you're successful, your spouse must have some money or other assets from which they can pay your damages if you win. It's no good to spend tens of thousands of dollars on legal fees and win only to find that your spouse has no way to pay your award. This is called a dry judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final judgment.".

Note, however, that courts have factored damages for assault and battery into the calculation of who gets what when it comes to division of assets. In Megeval v. Megeval, 1997 CanLII 3721 (BCSC), a tort claim was made in the same proceeding as a division of property claim. The court divided the family propertyA term under the ''Family Law Act'' referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property." equally between the parties, but awarded Mrs. Megeval $139,150 in damages for injuries resulting from assault. This amount was paid from Mr. Megeval’s share of the family property.

A third drawback to making a tort claim is you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have to disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes by an independent expert appointed by your ex-partner.

Limitation periods

A limitation periodA time period after which someone may not make a claim because the right to do so has expired. The time for making a claim is set by legislation, and limitation periods will differ depending on the type of claim or the relationship between people making and defending the claim. is a deadline by which a claim must be made and an actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order. started. If there is an applicable limitation period, once it is expired you cannot make the claim. For assaults involving people whose relationship is not personal or one of dependency, the limitation period is generally two years after the incident.

There is not likely any limitation period that applies to violence between spouses or parents and children.

Under (s. 3 (1)) of the provincial Limitation Act there is no limitation period to claims based on sexual misconduct.

Similarly, there is no limitation period on claims relating to non-sexual assault if the claimantThe person who starts a court proceeding seeking an order for specific remedy or relief against another person, the respondent. See "action" and "respondent." was a minorA person who is younger than the legal age of majority, 19 in British Columbia. Not to be confused with "miner." See "age of majority." or living in a personal or dependency relationship (s. 3 (i) (k)).

Awards

The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. It is important to get legal advice to decide whether or not making such a claim is economically worthwhile in your particular circumstances. The range of outcomes is very wide and many factors go into a judge’s assessment of the appropriate award but here are some awards that the courts have made for assault and battery in a family context:

  • In A.M. v. S.O., 2014 BCSC 4 physical assault in the form of an open-handed blow to the head resulted in $20,000 for general damages.
  • In Bird v. Kohl, 2012 BCSC 1424 the serious shoulder fracture, concussion, lacerations and scarring that resulted from repeated strikes with a shovel handle amounted to $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages and $25,000 for lost earning capacity.
  • In Constantini v. Constantini, 2013 ONSC 1626 verbal abuse during the relationship and pre-meditated break-in and aggressive assault post-separation did not produce permanent disabilityIn law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority." but it did result in post-traumatic stress disorder. $15,000 was awarded for general and aggravated damages.
  • In D.G. v. R.M., 2012 SKQB 296 a single instance of “horrific” sexual assault including striking, kicking and biting. $35,000 was awarded for general damages.
  • In Gould v. Sandau 2005 BCCA 190, the trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." judge awarded $2,500 for an assault that broke a hand.
  • In Megeval v. Megeval, 1997 CanLII 3721 (BCSC) assault causing permanent disability resulted in $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.
  • In N.C. v. W.R.B. [1999] O.J. No. 3633 (Ont. S.C.J.) multiple instances of sexual, physical verbal and emotional abuse that caused post-traumatic stress disorder was awarded $65,000 for general damages and $25,000 for aggravated damages.
  • In Shaw v. Brunelle, 2012 ONSC 590 a serious wrist fracture resulting from physical ejection from the home resulted in $65,000 for general and aggravated damages, $25,000 for lost earning capacity, and an unspecified amount for cost of future care.

These cases have been included only to give you a general idea of how the courts have treated tort claims based on family violence in the past. You should not rely on these cases to fix a dollar amount to your claim – seek legal advice from a lawyer with experience in this area.

Resources and links

Legislation

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