Suing for Family Violence in a Family Law Claim

From Clicklaw Wikibooks

Civil claims for family violence

The terms civil claims and tort claims are used interchangeably here. While most family law claims (e.g. claims for divorce, spousal support, division of property, etc.) are family law issues that are governed by legislation like the Divorce Act or the Family Law Act, the right to sue someone for inflicting violence is its own claim in law. Claims for assault and battery are civil claims/tort claims, and exist outside of the Family Law Act.

Certainly, tort claims for abuse and violence can overlap with family law issues, but it helps to know that tort claims for abuse and violence arise independently from the Family Law Act and its treatment of family violence. The Family Law Act has its own definition of family violence (including non-physical forms), emphasizes its impact on decisions around the care of children, and provides specific mechanisms like protection orders that are discussed in the section of on Family Violence and the Family Law Act in this chapter.

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 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) have 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.

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 the person 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,
  • past wages lost because of 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 costs, and
  • 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.

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. Assault and battery can include sexual assault, and a spouse can make a tort claim against their former spouse for sexual assault.

Starting a civil claim

A tort claim must be made 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 Form F3 Notice of Family Claim or Form F5 Counterclaim. Although a tort claim can be made on its own, without claims for things like divorce, parenting arrangements, and so forth, 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.

Tort claims can only be heard by the Supreme Court. The Provincial Court does not have the jurisdiction to deal with 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 is 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.

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 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.

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.

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 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 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

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.

There is not likely any limitation period that applies to violence between spouses or parents and children.

Under (s. 3 (1)) of the provincial 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)).

Awards

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 A.M. v. S.O., 2014 BCSC 4 physical assault in the form of an open-handed blow to the head resulted in $20,000 for general damages.
  • In Bird v. Kohl, 2012 BCSC 1424 the serious shoulder fracture, concussion, lacerations and scarring that resulted from repeated strikes with a shovel handle amounted to $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages and $25,000 for lost earning capacity.
  • In Constantini v. Constantini, 2013 ONSC 1626 verbal abuse during the relationship and pre-meditated break-in and aggressive assault post-separation did not produce permanent disability but it did result in post-traumatic stress disorder. $15,000 was awarded for general and aggravated damages.
  • In D.G. v. R.M., 2012 SKQB 296 a single instance of “horrific” sexual assault including striking, kicking and biting. $35,000 was awarded for general damages.
  • In Gould v. Sandau 2005 BCCA 190, the trial judge awarded $2,500 for an assault that broke a hand.
  • In Megeval v. Megeval, 1997 CanLII 3721 (BCSC) assault causing permanent disability resulted in $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.
  • In N.C. v. W.R.B. [1999] O.J. No. 3633 (Ont. S.C.J.) multiple instances of sexual, physical verbal and emotional abuse that caused post-traumatic stress disorder was awarded $65,000 for general damages and $25,000 for aggravated damages.
  • In Shaw v. Brunelle, 2012 ONSC 590 a serious wrist fracture resulting from physical ejection from the home resulted in $65,000 for general and aggravated damages, $25,000 for lost earning capacity, and an unspecified amount for cost of future care.

These cases have been included only to give you 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.

Resources and links

Legislation

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Gayle Raphanel and Samantha Simpson, August 8, 2017.


Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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