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Difference between revisions of "Family Violence"
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*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 the 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'', both of which are in fact intended to punish the 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." | ||
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. | ||
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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. | ||
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. 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 | 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. | ||
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 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, | 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. | ||
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 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 | 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. | ||
===Limitation periods=== | ===Limitation periods=== | ||