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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 22:29, 19 July 2019
, 22:29, 19 July 2019→The challenges of tort claims
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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 statute, like the ''[[Family Law Act]]'' or the ''[http://canlii.ca/t/8487 Negligence Act]'', it's mostly based on the common law. In order 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. | 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 statute, like the ''[[Family Law Act]]'' or the ''[http://canlii.ca/t/8487 Negligence Act]'', it's mostly based on the common law. In order 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 costs awarded to you if you're successful, that only happens at the end of the | 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 at the end of the matter 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 judgment''. | 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 judgment''. | ||
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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. | ||
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 also have to disclose your medical and counselling records, if | 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 also have to disclose your medical and counselling records, if any. You may also have to submit to medical and psychological examinations. | ||
==Limitation periods== | ==Limitation periods== | ||
