Difference between revisions of "Family Violence"

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==Tort law==
==Tort law==


Unlike criminal matters where the crown handles everything, a claim in tort must be advanced and prosecuted by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the other relief asked for in the Notice of Family Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce, parenting arrangements, and so forth. Tort claims can only be heard by the Supreme Court; the Provincial Court does not have the jurisdiction to deal with tort claims.
Unlike criminal matters where the crown handles everything, a tort claim must be advanced and prosecuted by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the other relief asked for in the Notice of Family Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce, parenting arrangements, and so forth. However, 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 proceeding because otherwise you might not be permitted to bring the tort claim separately at a later date.


Also unlike criminal matters, the remedies that can be sought aren't ''protective'', in the sense of no-contact and no-go orders, or ''punitive'', in the sense of jail time, criminal records and fines. The remedy the person who has suffered the family violence seeks is primarily ''restorative'': he or she would be asking 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:
Tort claims can only be heard by the Supreme Court; the Provincial Court does not have the jurisdiction to deal with tort claims.


*pain and suffering resulting from the violence,
Tort claims are not like criminal charges where the court can punish the wrong-doer with jail or a criminal record.  The remedy the person who has suffered the family violence seeks is primarily ''restorative'': he or she would be asking 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,
*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.


Damages can also be claimed as ''punitive damages'' or ''aggravated damages'', both of which are in fact intended to punish an alleged abuser for his or her conduct rather than to compensate the person who has suffered the family violence for his or her losses. Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances. Punitive damages are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature."
Damages can also be claimed as ''punitive damages'' or ''aggravated damages''.
 
Aggravated damages are awarded when the wrongful act 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.
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 spouse can make a tort claim against their former spouse for sexual assault.


===The drawbacks of 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's only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence.
This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence; it's 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 lawyer who is experienced in handling such claims and seek advice.


Firstly, 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, as a result of which it can be terribly complex to present your case.  
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 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.
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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''.
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''.


On this last point, however, I should mention the 1997 BC Supreme Court case of ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC). In this case, the effect of the court's judgment in the family law part of the case was to divide the family assets equally between the parties. However, the amount awarded to Ms. Megeval for her tort claim took up the whole of Mr. Megeval's one-half share — Ms. Megeval got it all. Sometimes there are ways to be compensated.
However, in the 1997 BC Supreme Court case of ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC), where 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.


Thirdly, 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 at the demand of your partner. All of this can be very trying and sometimes humiliating, for obvious reasons.
Thirdly, 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===
===Limitation periods===
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Under  (s. 3 (1)) of the provincial ''[http://canlii.ca/t/521sn Limitation Act]'' there is no limitation period to claims based on sexual misconduct.
Under  (s. 3 (1)) of the provincial ''[http://canlii.ca/t/521sn 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 claimant was a minor or living in a personal or dependency relationship (s. 3 (i) (k)).
Similarly, there is no limitation period on claims relating to non-sexual assault if the claimant was a minor or living in a personal or dependency relationship (s. 3 (i) (k)). It is unlikely that there is any limitation period that applies to violence between spouses or parents and children.
 


===Awards===
===Awards===


The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. Sometimes the assault is of a <span class="noglossary">minor</span> nature with little resulting harm. Sometimes the abuser can successfully argue that the violence was consented to, that it was situational, or that the violence resulted from self-<span class="noglossary">defence</span>. Sometimes the court will find that the family violence was reciprocal in the relationship, in other words, that it went both ways. Sometimes the amount of damages awarded are low simply because the abuser doesn't have the financial resources to pay anything more.
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 any event, here are some awards that the courts have made for assault and battery in a family context.


*''Bain v. Boulaine'', 1996: Sex without consent, $7,000 for pain and suffering, plus $4,000 in punitive damages.
* A.M. v. S.O. (2014) physical assault – open-handed blow to side of head; $20,000 for general damages.
*''[http://canlii.ca/t/1f1r7 Bellsmith v. Bellsmith]'', 1996 CanLII 448 (BCSC): Multiple assaults, $13,000 for pain and suffering, plus $2,000 in punitive damages and $19,000 for wage loss.
* ''[http://canlii.ca/t/fsxwh Bird v. Kohl]'', 2012 BCSC 1424; serious shoulder fracture, concussion, lacerations and scarring resulting from repeated strikes with a shovel handle; $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages and $25,000 for lost earning capacity;
*''C. v. M.'', 1990: Assault and sex without consent, $40,000 for pain and suffering.
* ''[http://canlii.ca/t/fwktw Constantini v. Constantini,]'' 2013 ONSC 1626; verbal abuse during relationship, pre-meditated break-in and aggressive assault post-separation; no permanent disability but post-traumatic stress disorder; $15,000 for general and aggravated damages.
*''[http://canlii.ca/t/231pn Glendale v. Drozdzik]'', 1993 CanLII 6867 (BCCA): Date rape, $25,000 for pain and suffering plus $10,000 in wage loss.
* ''[http://canlii.ca/t/fs8l9 D.G. v. R.M.]'', 2012 SKQB 296; one instance of “horrific” sexual assault including striking, kicking and biting; $35,000 for general damages.
*''Gould v. Sandau'', 2003: Assault causing broken bone in hand, $2,500.
* ''[http://canlii.ca/t/1k2jm Gould v. Sandau]'' 2005 BCCA 190, Trial judge awarded $2,500 for assault causing broken bone in hand.
*''Harder v. Brown'', 1989: Repeated sexual assaults, $40,000 in general and aggravated damages, plus $10,000 in punitive damages.
* ''[http://canlii.ca/t/1f56v Megeval v. Megeval],'' 1997 CanLII 3721 (BCSC): Assault causing permanent disability, $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.
*''Hurley v. Moore'', 1990: Severe assault resulting in scarring, $3,000 for pain and suffering, $2,000 for the scarring, plus $20,000 in general damages.
* ''N.C. v. W.R.B.'' [1999] O.J. No. 3633 (Ont. S.C.J.); multiple instances of sexual, physical verbal and emotional abuse resulting in post-traumatic stress disorder; $65,000 for general damages, $25,000 for aggravated damages;
*''Kooner v. Kooner'', 1989: Two assaults, $5,000 in general damages plus $2,500 in aggravated damages.
* [http://canlii.ca/t/fps0x ''Shaw v. Brunelle'',] 2012 ONSC 590; Serious fracture to wrist resulting from physical ejection from the home; $65,000 for general and aggravated damages, $25,000 for lost earning capacity and an unspecified amount for cost of future care.
*''[http://canlii.ca/t/1f6w9 Kovacic v. Kovacic]'', 1998 CanLII 1083 (BCSC): Assault, $2,000 for pain and suffering plus $1,000 for aggravated damages.
*''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC): Assault causing permanent disability, $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.
*''Twardowski v. Twardowski'', 1994: Multiple assaults without lasting physical damage, $8,500 for pain and suffering.
*''White v. White'', 2003: Multiple assaults, $10,000 in damages.


These cases have been included to give readers of this website 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 without reading each case to understand the circumstances in which the violence occurred and the award was made, and without doing a fair bit of other research on your own.
These cases have been included only to give readers of this website 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.


==The ''Family Law Act''==
==The ''Family Law Act''==
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