BACKGROUND

The parties were married in 1999 and separated in 2016. There were two children of the marriage, both of whom have been estranged from the father since 2017. The judge noted that this was not a typical marriage, this marriage was full of family violence. In September of 2021 the father was charged with two counts of assault against the mother and one count of uttering death threats, which related to events from during the marriage. However, these criminal charges were outstanding at the time of this trial and did not factor into the judge’s analysis. The mother sought damages for the tort of family violence. Although the father claimed that the tortious conduct was limited to three incidents of battery and specified incidents of emotional abuse, the mother’s evidence demonstrated the family violence was wide-spread throughout the relationship. The general pattern was that the Father would become irrationally jealous, drink, engage in verbal arguments, and then beat the Mother.

ANALYSIS

When deciding whether the court should consider the mother’s tort claim as part of the family law proceedings, the judge noted that the Divorce Act creates a complete statutory scheme when it comes to resolving financial issues post-separation and the court must be careful not to arm family law litigants to overly complicate litigation. However, with recent changes to the Divorce Act, family violence is now relevant to the issue of parenting. Despite the fact that legislators have recognized the impact of family violence in these matters, legislation does not create a regime to address other legal issues which arise from family violence. Spousal support is based on a compensatory, rather than fault driven regime and there is no place for a victim to obtain reparations for harms flowing from family violence. With that being said, the judge noted that allowing a family law litigant to pursue damages for family violence is a matter of access to justice, particularly addressing the fact that someone would be required to bring both a civil and family law case.

A tort arises when there has been a breach of a recognized legal duty, and where the appropriate remedy is a claim for damages. The judge noted that existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control which is at the heart of these cases. Justice Mandhane provides a detailed analysis of how the tort of family violence should be addressed and the thresholds to meet. He noted that this is an exceptional circumstance where common law should recognize a new foundation of liability for family violence. The mother was awarded $150,000.00 in family violence damages.

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