Civil Claims and Family Violence: Difference between revisions
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==Introduction to the law of torts== | ==Introduction to the law of torts== | ||
The word "tort" comes from the Latin word for "wrong" or "injustice." ''Tort law'' | The word "tort" comes from the Latin word for "wrong" or "injustice." ''Tort law'' is essentially a set of legal tools that developed to compensate people who have been harmed by someone else’s wrongful act or omission. A tort is a breach of a duty someone owes to someone else, such as a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole someone might fall into. However, not all actions that cause harm are torts. It's crucial to talk with a lawyer to see if harm done to you is a tort. | ||
Most tort claims come from the ''common law'', which means | Most tort claims come from the ''common law'', which means they developed and evolved over the course of decades, and even centuries, as courts recognized new kinds of legal claims to address different problems in society. As a result, tort claims are not created by legislation the way that family law claims are based on legislation like the ''Family Law Act'', ''Divorce Act'' and the Child Support Guidelines. That said, some torts are "statutory torts" that are written into legislation. One example is claims for violation of privacy under the provincial ''Privacy Act'', which defines specifically what the tort of violation of privacy is. | ||
===Damages=== | ===Damages=== | ||
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===Specific tort claims=== | ===Specific tort claims=== | ||
Canadian law students learn about tort law in their first year of study. | Canadian law students learn about tort law in their first year of study. It's a major part of the Canadian legal system and can be thought of as a set of legal tools judges have developed to address wrongdoing and compensate people who have suffered harm. Tort claims are divided into distinct torts, each with its own requirements. The most frequent tort claims in family violence cases are the torts of ''assault'', ''battery'', and ''intentional infliction of emotional distress''. In tort law, "assault" means wrongfully threatening someone, and "battery" means wrongfully applying force without the victim's consent. The tort of ''intentional infliction of mental distress'' holds someone legally responsible when their outrageous, deliberate behavior causes another person serious, provable mental harm. Assault and battery can include sexual assault. | ||
Other possible torts in family violence cases include | Other possible torts in family violence cases include ''public disclosure of private fact'', and ''false imprisonment''. Note that tort law uses specialized language, so your understanding of what "mental distress" is might differ from how tort law defines it. | ||
Torts are | Torts are always developing, although changes tend to be gradual and in response to broader changes within society as a whole. As family violence, and society's concerns about it, has gained more attention, the Canadian courts have been asked to consider expanding tort law to address the harms of family violence in new ways. In 2022, the Ontario Superior Court recognized a new, stand-alone ''tort of family violence'' in the trial decision of ''[https://canlii.ca/t/jmpnf Ahluwalia v. Ahluwalia]'', 2022 ONSC 1303. The Ontario Court of Appeal overturned that finding in ''[https://canlii.ca/t/jz277 Ahluwalia v. Ahluwalia]'', 2023 ONCA 476, concluding that existing torts (like battery, assault, and intentional infliction of emotional distress) are sufficient to address the problems of family violence. In February 2025, the Supreme Court of Canada heard arguments to determine if such a new tort should be recognized across Canada. A decision is expected in 2025, and it could influence the way courts handle family violence claims in the future. It is important to seek legal advice before relying on any specific tort, as the law in this area may change significantly depending on the Supreme Court of Canada's ruling. | ||
===Starting a civil claim=== | ===Starting a civil claim=== | ||
A tort claim | A tort claim is a ''civil claim'' and must be made by the person who has suffered the harm. A tort claim about an incident or series of events that happened within a domestic relationship can be made alongside a family law claim in a family law proceeding, or as a stand-alone tort claim in a general civil proceeding. | ||
To | To include a tort claim in a family law proceeding, you must start your case in the Supreme Court of British Columbia by filing a Notice of Family Claim. The family court division of the Provincial Court cannot hear tort claims, so any family violence–related tort claims need to be added to a Supreme Court case. | ||
If you wish to bring a tort claim on its own, you will likely file a Notice of Civil Claim in Supreme Court. Although certain tort claims can be brought in the Provincial Court’s small claims division, that court’s monetary jurisdiction is limited to $35,000. The Civil Resolution Tribunal can also hear some small claims matters, but it is limited to awards of $5,000 or less. | |||
Because different courts or tribunals have different rules, procedures, and monetary limits, it's wise to get legal advice to figure out which court is most appropriate for your tort claim. | |||
Another consideration when starting a tort claim is ''timing''. It is crucial that you bring the claim within the proper limitation period. (We'll talk about limitation periods a bit later.) If you do not file your claim in time, you will miss your opportunity to bring your claim at all. Again, it is important to speak to a lawyer to understand the limitation period that applies to your case. | Another consideration when starting a tort claim is ''timing''. It is crucial that you bring the claim within the proper limitation period. (We'll talk about limitation periods a bit later.) If you do not file your claim in time, you will miss your opportunity to bring your claim at all. Again, it is important to speak to a lawyer to understand the limitation period that applies to your case. | ||
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===The challenges of tort claims=== | ===The challenges of tort claims=== | ||
This discussion is not meant to discourage individuals who have suffered family violence from making tort claims. It is meant to raise some of the difficulties that can accompany tort claims relating to family violence. Despite these challenges, it can be empowering to hold an abusive | This discussion is not meant to discourage individuals who have suffered family violence from making tort claims. It is meant to raise some of the difficulties that can accompany tort claims relating to family violence. Despite these challenges, it can be empowering to hold an abusive person accountable for their behaviour. If you have been sexually or physically assaulted, you should talk to a lawyer experienced in handling such claims and seek advice to determine whether your case is likely to succeed. | ||
====Costs==== | ====Costs==== | ||