Civil Claims and Family Violence

Civil claims for family violence

Typically in British Columbia, family law means claims for divorce, spousal support, parenting arrangements, child support, and property division. These are claims that are brought using the Divorce Act or the Family Law Act and under the Supreme Court Family Rules or the Provincial Court Family Rules.

There are some legal claims that may involve your ex-partner which are not family law claims. One type of related claim may be a tort claim against your spouse for an injury they caused to you. These claims are typically called civil claims, and they are not covered by the Divorce Act or the Family Law Act. The terms civil claims and tort claims are used interchangeably in this chapter.

Tort claims for abuse and violence can overlap with family law issues, but 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 on Family Violence and the Family Law Act in this chapter. However, the Family Law Act does not typically offer direct financial compensation for family violence. In contrast, the purpose of a tort claim is to compensate a victim for wrongful acts by another person.

Introduction to tort law claims

The word tort comes from the Latin word for wrong. 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. Not all harmful actions are torts; it is important to consult with a lawyer to find out whether a harm done to you would meet the standard for a civil claim.

These sorts of tort claims aren't spelled out in written laws the way that the rules against robbery or assault are set out in the Criminal Code. Most tort claims are part of the common law, also known as case law, the law that the courts (as opposed to the legislature) have created and maintained through written decisions over many years.

Tort claims are normally brought as civil proceedings, but they can be brought as part of a family law case. 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 family case.

Damages

Tort claims are not like criminal charges where the court can punish the wrong-doer with jail or a criminal record. Instead, the result of a successful tort claim 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 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 (sometimes referred to as lost earning capacity)
• rehabilitation and job retraining costs
• past and future medical care expenses related to the injuries suffered from the violence

Damages can also be claimed as aggravated damages or punitive damages.

Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances or when the wrongful act was particularly horrendous. Damages in the context of a spousal relationship will often qualify as aggravated damages because of the nature of the relationship between spouses. 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.

Specific tort claims

Tort claims are separated into distinct torts which each have their own definition and requirements. The most common tort claims in situations of family violence are assault and battery. In tort law, assault means wrongfully threatening to harm someone (note that assault is defined differently in criminal law). 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.

There are many other torts that may apply in family violence cases, for example intentional infliction of mental suffering, public disclosure of private fact, or false imprisonment. Torts have their own specialized language: what you consider mental suffering may have a different meaning from how that term is used in tort law. Torts are a developing area of law. It is important to be cautious and seek legal advice before using torts because of these changes. A recent change in tort law is the potential new tort of family violence which was first used in the case Ahluwalia v. Ahluwalia, 2022 ONSC 1303. Though this is an interesting development of law, the case is currently under appeal and the tort has yet to be successfully used in a reported decision in British Columbia (see DN v. BN, 2022 BCSC 2029).

There are also torts that people have tried to bring to court, but that have not been successful. One area where tort claims have largely not been successful is where one parent claims the other has interfered with their relationship with their children. For example, in the case Frame v. Smith, [1987 2 SCR 99], the court found that a father could not bring the tort of intentional infliction of mental suffering or the tort of conspiracy where his ex-spouse had interfered with his access to their children because the Family Law Act or cause harm to a person, it is not necessarily a tort.

Starting a civil claim

A tort claim must be made by the person who has suffered the family violence. A tort claim about an incident that happened within a domestic relationship can be made within a family law claim or as a standalone claim in a general civil proceeding.

To bring a tort claim as part of a family law claim, you use the British Columbia Supreme Court and the Supreme Court Family Rules. You are unable to bring a tort claim in provincial family court. If you bring the tort claim as a stand-alone civil claim, you would likely be bringing it under the Supreme Court Civil Rules, but in some circumstances, you may choose to bring the claim in Small Claims (Provincial Court) for matters under $35,000 or the Civil Resolution Tribunal for matters under $5000.

Because the different courts have different rules, where you choose to bring your tort claim can have a big impact on how the case goes forward. It is important to speak to a lawyer about which process may be best for your case.

In family law proceedings, tort claims are usually included as other relief in the forms used to start or respond to a claim under the family court rules.

Another consideration when starting a tort claim is timing. It is very important that you bring the claim within the proper limitation period [see section below]. If you do not file your claim in time, you will not be able to bring your claim. Once a claim has been started, sometimes parties will wait to take next court steps. For example, if there is an ongoing criminal trial related to the tort, you may wait until the criminal trial is complete to move forward with the civil process. However, you must still have initiated the civil matter before the limitation date passed.

The challenges of tort claims

This discussion is not meant to discourage persons who have suffered family violence from making tort claims. It is meant to bring the reader's attention to the difficulties that can sometimes accompany tort claims relating to family violence. In spite of these difficulties, it can be empowering for a spouse to hold an abusive spouse accountable for family violence through the civil process. 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 to determine whether your case is likely to succeed.

Costs

The first drawback of a tort claim is that they are often expensive to bring. You will likely have to hire a lawyer if you want to make a tort claim against your spouse. The law governing tort claims is not set out in a statute, like the Family Law Act. Rather, it is mostly based on the common law (case law). In order to succeed in your claim, you will have to prove that the tort took place, and that your injuries resulted from the wrongful act. It is often quite complicated to prove injuries, especially where they are mainly psychological or emotional. A related issue is that you may need to hire experts who can help assign a financial value to your injuries. For example, if you are claiming the costs of future medical care, you will likely need a medical expert to tell the court what kind of treatment you will need, and for how long.

Recoverability

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.

One potential benefit of bringing your tort claim with your family law claim is that courts have generally factored damages for assault and battery into the calculation of who gets what when it comes to division of assets. This can make recoverability easier. 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 the wife $139,150 in damages for injuries resulting from battery. This amount was paid from the husband's share of the family property.

Personal impact

You will have to testify about the family violence and the effect it had on you in a very open, honest, and personal manner. The opposing party or their lawyer will ask you questions about the tort and its effect on you in open court. Before a trial you will also have to disclose your medical and counselling records, if any, to the opposing party and their lawyer, and participate in a discovery process that requires you to share relevant information with the other side. You may also have to submit to medical and psychological examinations. These are normal parts of the civil law process, but many people bringing tort claims find them exceptionally invasive.

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 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 combine your tort claim with other family law claims, it is important to include all these claims in one proceeding. Failing to do this means you might not be allowed to bring the tort claim separately at a later date.

Tort claims can be brought together with family law claims in the Supreme Court. Because the procedures in Provincial Court are much different for torts claims versus family law claims, you cannot bring a tort claim to be heard alongside family law claim in the Provincial Court.

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 the reader's attention the difficulties that can sometimes accompany tort claims relating to family violence. In spite of 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 at the end of the matter 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 also have to disclose your medical and counselling records, if any. You may also have to submit to medical and psychological examinations.

Limitation periods

A limitation period is a deadline by which a claim must be made and a court action commenced. If there is an applicable limitation period for a claim, and if it has expired, you cannot make that claim anymore. For assaults involving people whose relationship is not personal or one of dependency, the limitation period is generally two years after the incident.

Under section 3(1) of the provincial Limitation Act, there is no limitation period for a number of claims, including:

• claims relating to sexual assault (for anyone),
• claims relating to assault, battery or misconduct of a sexual nature while the claimant was a minor,
• claims relating to assault or battery while the claimant was an adult living in an intimate and personal relationship (or had a relationship of financial, emotional, physical, or other dependency) with a person who performed, contributed to, consented to, or acquiesced in the assault or battery.

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, the facts involved 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 general damages, $20,150 for past wage loss, $66,500 for future wage loss, $2,500 for future care, and $5,000 for 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 resulted in an award of $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 a figure for costs of future care (to be assessed by an actuary).

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

• Limitation Act

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Fiona Beveridge and Samantha Simpson, April 30, 2019.

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.