Civil Claims and Family Violence

Civil claims for family violence

In British Columbia, "family law" typically refers to the law about divorce, spousal support, children's parenting arrangements, child support, and property division. If these issues are addressed in court, they are addressed through claims brought under the Divorce Act or the Family Law Act.

Family law is a kind of civil law. "Civil law" refers to every kind of law other than criminal law. Other branches of the civil law include the law about contracts, the law about property, and the law about something called torts. Tort law is the law that applies when someone does something, or doesn't do something, that causes harm to someone else. Tort law includes claims about a wide range of misbehaviour, such as negligence, defamation and invasion of privacy. Tort law also includes claims about things that are more directly relating to family violence, such as assault, battery, and infliction of emotional harm. Claims like these aren't covered by the Divorce Act or the Family Law Act.

Tort claims for family violence can overlap with family law issues. They can be the subject of a lawsuit on their own, or they can be combined with a lawsuit brought under the Divorce Act or the Family Law Act. While the Divorce Act or the Family Law Act do talk about family violence, in the context of children's parenting arrangements, protection orders and conduct orders, neither act provides financial compensation for the effects family violence. That is what tort claims are for.

Introduction to the law of torts

The word "tort" comes from the Latin word for "wrong" or "injustice." 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 someone else, 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. However, not all actions that cause harm are torts. It's crucial to talk with a lawyer to see if harm done to you is a tort.

Most tort claims come from the common law, which means the vast majority of them developed over the course of decades, and even centuries, as courts have recognized the need for new kinds of legal claims to address different problems in society. As a result, tort claims are not governed by legislation the way family law claims are governed by the Family Law Act, Divorce Act and the Child Support Guidelines, or the way criminal law is governed by the Criminal Code. That said, some torts are "statutory torts" that are written into legislation. One example is claims for violation of privacy under the provincial Privacy Act, which defines specifically what the tort of violation of privacy is.

Damages

When a tort claim is proven, the result will be an order for the payment of financial compensation, or damages, to the victim. The precise dollar value of these damages is based on the concept that every injury or harm, and every consequence suffered by the victim, has a dollar value. Some damages are easier for a court to calculate if it has evidence of direct financial loss to the victim, like lost wages or the cost of medical expenses. These direct financial losses are called pecuniary damages. Other damages, such as pain and suffering, are more difficult to measure because they are more subjective. Damages for pain and suffering are called general damages, or non-pecuniary damages, and the courts tend to look to past cases with similar facts in order to calculate a dollar value.

General damages can be awarded for:

• pain and suffering from the family violence,
• emotional trauma,
• impairment to family or social relationships, and
• loss of life enjoyment due to the lasting impacts of the violence.

Pecuniary damages can be calculated for:

• past wages lost due to the family violence,
• future wages lost from an inability, illness, or other impairment from the violence (sometimes referred to as lost earning capacity),
• rehabilitation and job retraining costs, and
• past and future medical care expenses tied to injuries caused by the violence.

General and pecuniary damages are both forms of compensatory damages, as they are awarded to compensate the victim for their harm and losses.

Aggravated damages are awarded by a judge where the circumstances of the harm are especially humiliating or undignified. The court may separately identify aggravated damage amounts, or award them as part of general damages. The purpose of aggravated damages is to compensate the victim when the circumstances of the harm are humiliating, oppressive, or malicious. In the context of family violence, the circumstances of the harm often qualify for aggravated damages. The unique power dynamics in many intimate relationships, the fact that there is often a significant size and strength difference between the parties, and the wide-ranging negative consequences that arise when family violence is part of someone's daily life, increase the likelihood that aggravated damages will be awarded.

Punitive damages are another form of damages. They are different from other kinds of damages and punitive damages are not about compensating the victim, they're about:

• punishing the defendant, and
• send a strong message to the defendant and to other people, to discourage them from doing similar things.

Punitive damages are only awarded if the combined effect awards for general and aggravated damages is insufficient to achieve the goals of punishment and deterrence.

Specific tort claims

Canadian law students learn about tort law in their first year of study. Tort law is a big part of the Canadian legal system, and it's easiest to think about tort law as a collection of legal tools created by judges to provide compensation to individuals who have been hurt, or whose property has been negatively affected, by a wrongdoer. Tort claims are divided into distinct torts, each with its definition and requirements. The most frequent tort claims in family violence cases are the torts of assault and battery. In tort law, "assault" means wrongfully threatening someone, and "battery" means wrongfully hurting someone. Assault and battery can include sexual assault. (It's important to know that spouses can sue each other for sexual assault.)

Other possible torts in family violence cases include intentional infliction of mental suffering, public disclosure of private fact, and false imprisonment. Note that tort law uses specialized language, so your understanding of what "mental suffering" is might differ from how tort law defines it.

Torts are a developing area of law. It is important to be cautious and seek legal advice before using torts because of these changes. In the context of family violence, the Ontario Court of Appeal in Ahluwalia v. Ahluwalia, 2023 ONCA 476, clarified that existing torts like battery, assault, and intentional infliction of emotional distress are sufficient to address the harms resulting from family violence.

Starting a civil claim

A tort claim, such as for assault and battery, is a civil claim and must be made by the person who has suffered the harm from family violence. A tort claim about an incident that happened within a domestic relationship can either be made alongside a family law claim in a family law proceeding, or as a stand-alone tort claim in a general civil proceeding.

To make a tort claim part of a family law proceeding, you will start your claim in the Supreme Court of British Columbia by filing a Notice of Family Claim. (The family court division of the Provincial Court cannot hear tort claims.) Your tort claims will be described along with your family law claims. To bring the tort claim in a stand-alone civil proceeding, you will likely also start your claim in the Supreme Court by filing a Notice of Civil Claim. (While tort claims can be heard in the small claims division of the Provincial Court, that court is limited to making awards of $35,000 or less. You could also file with the Civil Resolution Tribunal, but it can only make awards of $5,000 or less.)

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 to fully understand which court is best for your case.

Another consideration when starting a tort claim is timing. It is crucial that you bring the claim within the proper limitation period. (We'll talk about limitation periods a bit later.) If you do not file your claim in time, you will miss your opportunity to bring your claim at all. Again, it is important to speak to a lawyer to understand the limitation period that applies to your case.

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 raise some of the difficulties that can accompany tort claims relating to family violence. Despite these challenges, it can be empowering to hold an abusive personal accountable for their behaviour. If you have been sexually 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 tort claims is that they are often expensive to bring to trial. 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 rarely set out in a statute like the Family Law Act. Instead, it is mostly based on the common law, also known as the case law.

To succeed in your claim, you will have to prove that the tort occurred, the nature and extent of your injuries, and that your injuries resulted from the wrongful act. Proving injuries, especially when they are mainly psychological or emotional, can be complicated. You may even 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 tell 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 the damages you are awarded. It likely doesn't make sense 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 division of property. This can make recovering your damages award much easier. In Megeval v. Megeval, 1997 CanLII 3721 (BCSC), a tort claim was made in the same proceeding as a claim for the division of property. 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 counselling 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 a claim, and that period has expired, you cannot make that claim anymore. For many torts, including assaults involving people who are strangers, the limitation period is generally two years after the incident. Where assault involves people in an intimate relationship, or where the victim was in a relationship of dependency with the attacker, there is no limitation period. There is also no limitation period for claims relating to sexual assault, regardless of the relationship between the attacker and the victim.

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

• claims relating to sexual assault,
• claims relating to assault, battery or misconduct of a sexual nature while the claimant was a minor, or
• 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 damages a court may award for tort claims depends on the circumstances. If you can, get legal advice to help decide whether a claim is worthwhile in your particular circumstances. Outcomes vary widely, and many factors go into a judge's assessment of the appropriate award. Here are some examples of awards that the courts have made for tort claims in a family context:

• In Schuetze v. Pyper, 2021 BCSC 2209, the wife was awarded a total of $795,000 following a violent incident for which the husband faced criminal charges. The majority of damages were for past and future diminished earning capacity, but $100,000 were general damages for pain and suffering. The wife's tort claim of battery was made in a separate civil action, not a family law proceeding, and she had expert evidence to prove her physical and psychological injuries.
• In Olds College v. Huxley, 2019 BCSC 2111, the plaintiff received $2,500 in general damages $2,500 in aggravated damages, and $5,000 for punitive damages in a defamation case against his former wife. She made serious and defamatory statements by email, Facebook, and YouTube and tried to reach as many people as possible.
• In T.K.L. v. T.M.P., 2016 BCSC 789, the step-daughter was awarded a total of $93,850 for breach of privacy and breach of fiduciary duty following her step-father spying on and video recording her in the shower. $85,000 was awarded for general damages, which included a $25,000 aggravated damages component. This case features the tort of breach of privacy under 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 if possible.

Resources and links

Legislation

• Limitation Act
• Privacy Act

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kim Hawkins, Vandana Sood, Elizabeth Cameron, and Rosanna Adams, 16 June 2023.

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.