Civil Claims and Family Violence

Civil claims for family violence

In British Columbia, typically, family law means claims for divorce, spousal support, parenting arrangements, child support, and property division. These are claims 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 involving your ex-partner that aren't family law claims. One might be a tort claim against your spouse for an injury they caused you. These claims are often called civil claims, and they aren't 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 definition of family violence (including non-physical forms), emphasizes its impact on decisions about children, and offers specific mechanisms like protection orders discussed in the section on Family Violence and the Family Law Act in this chapter. Yet, the Family Law Act doesn't usually give direct financial compensation for family violence. In contrast, a tort claim aims to compensate a victim for wrongful acts by another.

Introduction to tort law claims

The word tort comes from the Latin word for wrong. Tort law covers things like personal injuries, motor vehicle accidents, negligence, assault and battery, trespass, and more. A tort is a breach of a duty someone owes to another, leading to a cause of action, 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. Not all harmful actions are torts. It's crucial to talk with a lawyer to see if harm done to you meets the civil claim standard.

These tort claims aren't outlined in written laws like the rules against robbery or assault in the Criminal Code. Most tort claims are part of the common law, or case law, law that courts (rather than legislatures) have developed through decisions over many years.

Tort claims are usually brought as civil proceedings, but they can be part of a family law case. If a claim for assault and battery is made in a family law claim, a judge will treat it as a tort law claim and apply common law principles and rules to the family case.

Damages

Tort claims differ from criminal charges. Courts can't punish the offender with jail or a criminal record. Instead, a successful tort claim for a family violence victim is primarily restorative or compensatory. They ask for damages to compensate for the harm and its consequences. Damages are monetary payments and can cover:

• pain and suffering from the violence, sometimes just called general damages
• loss of life enjoyment due to the violence
• past wages lost due to the violence
• future wages lost from an inability, illness, or other impairment from the violence, sometimes called lost earning capacity
• rehabilitation and job retraining costs
• past and future medical care expenses tied to the violence injuries

Damages can also include aggravated damages and punitive damages.

Aggravated damages are given when the wrongful act happened in humiliating or undignified circumstances or was especially terrible. In a spousal relationship context, damages often qualify as aggravated damages due to the spouse relationship nature. By law, you must combine aggravated damages with general damages.

Punitive damages don't compensate the victim. Courts award them when the wrongful act needs more punishment because it was particularly malicious. They help deter others from similar acts.

Specific tort claims

Tort claims are divided into distinct torts, each with its definition and requirements. The most frequent tort claims in family violence cases are assault and battery. In tort law, assault is wrongfully threatening someone (assault has a different criminal law definition). Battery is wrongfully attacking and harming someone. Assault and battery can include sexual assault, and a spouse can make a tort claim against their ex for sexual assault.

Other possible torts in family violence cases include intentional infliction of mental suffering, public disclosure of private fact, or false imprisonment. Torts have specialized language: your understanding of ‘mental suffering’ might differ from its tort law meaning.

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 stand-alone 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 different courts have different rules, where you choose to bring your tort claim can have a significant impact on how the case proceeds. 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 crucial 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 the 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 individuals who have suffered family violence from making tort claims. It is meant to bring to the reader's attention the difficulties that can sometimes accompany tort claims relating to family violence. Despite these challenges, 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 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 need 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. Instead, it is mostly based on common law (case law). To succeed in your claim, you will have to prove that the tort occurred, and that your injuries resulted from the wrongful act. Proving injuries, especially when they are mainly psychological or emotional, can be complex. A related issue is that you might need to hire experts to assign a financial value to your injuries. For instance, if you are claiming the costs of future medical care, you will likely need a medical expert to inform the court about the type of treatment you will require and for how long.

Recoverability

Even if you're successful, your spouse must have some assets from which they can pay your damages if you win. It's disadvantageous to spend tens of thousands of dollars on legal fees and win, only to discover that your spouse cannot 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 asset division. This can make recoverability more straightforward. 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 need to testify about the family violence and its effect on you openly, honestly, and personally. The opposing party or their lawyer will question you about the tort and its impact on you in open court. Before a trial, you will also need to disclose your medical and counseling records, if any, to the opposing party and their lawyer, and participate in a discovery process that requires sharing relevant information. You might also have to undergo medical and psychological evaluations. These are standard parts of the civil law process, but many individuals find them exceptionally invasive.

Limitation periods

A limitation period is a deadline by which a claim must be made and a court action started. If a limitation period applies to your claim, and it has expired, you cannot make that claim anymore. For assaults involving people whose relationship is not personal or one of dependency, and many torts, 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.

The tort of family violence (currently under appeal, Ahluwalia v. Ahluwalia, 2022 ONSC 1303) uses a different approach to limitation periods: if a single event, in a pattern of family violence, is within the limitation period, then the claim can be brought and the court can consider the entire chain of events.

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 Ahluwalia v. Ahluwalia, 2022 ONSC 1303, the judge created the new tort of ‘family violence’ to address a 16-year pattern of coercive control and violence. The wife received a total of $150,000 from the tort portion of the claim brought within a family action.
• In Schuetze v. Pyper, 2021 BCSC 2209, the wife was awarded a total of $695,000 following an exceptionally violent battery. In this case the wife brought the claim as a separate civil action and had expert evidence. This case is under appeal.
• In Olds College v. Huxley, 2019 BCSC 2111, the plaintiff received $5,000 in damages as a result of statements made in emails, Facebook or YouTube, by his former spouse through the tort of defamation.
• In TKL v. TMP, 2016 BCSC 789, the step-daughter was awarded a total of $93,850 following her step-father spying and recording her while and after she showered. This case was brought using the statutory tort of privacy through the Privacy Act.
• 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. Damage awards in family violence cases involving assault and battery have changed and appear to be increasing at a rate higher than inflation. 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.

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.