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Difference between revisions of "Civil Claims and Family Violence"
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Civil Claims and Family Violence (view source)
Revision as of 17:08, 13 August 2017
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==Introduction to tort law claims== | ==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, negligence, assault and battery, trespass, etc. The legal definition of a tort is | The word ''tort'' comes from the Latin word for ''wrong'', and tort law deals with things like personal injuries, motor vehicle accidents, negligence, 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 action," 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 law'', the law that the courts (as opposed to the legislature) has 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 judge as a ''tort law'' claim, and bring ''common law'' principles and rules into the case. | If a claim for assault and battery is made in a family law claim, it will be treated by a judge as a ''tort law'' claim, and bring ''common law'' principles and rules into the case. | ||
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 award of ''damages'' to make good the harm | 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 award of ''damages'' to make good the harm he or she 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, | *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, | *loss of enjoyment of life as a result of the impact of the violence, | ||
*past wages lost because 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 | *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 <span class="noglossary">costs</span>, and | *rehabilitation and job retraining <span class="noglossary">costs</span>, and | ||
*past and future medical care expenses related to the injuries suffered from the violence. | *past and future medical care expenses related to the injuries suffered from the violence. | ||
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Lawyers, of course, are expensive. While you may get some of your legal costs 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. | Lawyers, of course, are expensive. While you may get some of your legal costs 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 | Secondly, even if you're successful, your spouse must have some money or other assets from which he or she 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 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 ''[http://canlii.ca/t/1f56v 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 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. | 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 ''[http://canlii.ca/t/1f56v 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 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. | ||
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==Limitation periods== | ==Limitation periods== | ||
There is not likely any limitation period that applies to violence between spouses or parents and children. | |||
A ''limitation period'' is a deadline by which a claim must be made and an action 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 | A ''limitation period'' is a deadline by which a claim must be made and an action 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. | ||
Under (s. 3 (1)) of the provincial ''[http://canlii.ca/t/8qx3 Limitation Act]'' there is no limitation period to claims based on sexual misconduct. | Under (s. 3 (1)) of the provincial ''[http://canlii.ca/t/8qx3 Limitation Act]'' there is no limitation period to claims based on sexual misconduct. | ||
