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Civil Claims and Family Violence

1,125 bytes removed, 01:22, 28 November 2023
→‎Introduction to the law of torts
* past and future medical care expenses tied to injuries caused by the violence.
General and pecuniary damages, are all both forms of ''compensatory damages'' because awarding them is meant , as they are awarded to compensate the victimfor 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.
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.)
STOPPED HEREOther 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.
Other possible torts in family violence cases include ''intentional infliction of mental suffering'', ''public disclosure of private fact'', or ''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 ''[https://canlii.ca/t/jz277 Ahluwalia v. Ahluwalia]'', 2023 ONCA 476, clarified that existing torts like battery, assault, and intentional infliction of emotional distress were are sufficient to address the alleged harms. While not a BC case, this appeal decision resulting from an influential Canadian court is significant because it rejected the creation of a specific "family violence" tort. Nonetheless, the Ontario Court of Appeal case confirms that tort claims, in general, have their place in a family law proceeding. Combining established tort claims (such as assault and battery) and family law claims can make the legal process more efficient, since dealing with tort and family law claims together avoids the duplication of effort compared to starting separate ''family law'' and ''civil'' (i.e. tort law) cases. Making the different claims together in one family law proceeding also allows a detailed disclosure of assets and income to happen at once.
===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 of 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 A tort claim part of , such as for assault and battery, is a ''family law proceedingcivil claim'', you will use and must be made by the BC Supreme Court and person who has suffered the [https://canlii.ca/t/8mcr Supreme Court Family Rules]harm from family violence. That's because a A tort claim cannot about an incident that happened within a domestic relationship can either be heard in made alongside a Provincial Court family law proceeding. To bring the tort claim in a stand-alone ''civil family law proceeding'', many survivors of family violence also choose to use the BC Supreme Court. That's because general civil claims (which includes tort claims) filed at BC Provincial Court are heard by the Small Claims Division of the BC Provincial Court. Small claims awards in BC are limited to $35,000 or less. The other option for as a stand-alone tort claim is to file with the Civil Resolution Tribunal, which is limited to matters under $5,000in a general civil proceeding.
Because different courts have different rulesTo make a tort claim part of a family law proceeding, where you choose to 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 your the tort claim can have in a significant impact on how stand-alone civil proceeding, you will likely also start your claim in the case proceedsSupreme Court by filing a Notice of Civil Claim. It (While tort claims can be heard in the small claims division of the Provincial Court, that court is important limited to speak to a lawyermaking 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 fully understand which court is best for your caseless.)
In family law proceedingsBecause different courts have different rules, where you choose to bring your tort claims claim can be included as ''other'' relief in have a significant impact on how the forms used case proceeds. It is important to start or respond speak to a claim under the Supreme Court Family Ruleslawyer 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. If you do not file your claim in time, you will miss your opportunity to bring your claim at all. Once a claim has been started, parties will sometimes wait before taking the next court steps. For exampleAgain, if there it is an ongoing criminal trial related important to the tort, you may wait until the criminal trial is complete speak to a lawyer to move forward with the civil process. However, you must still start the civil claim before understand the limitation date passedperiod 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 bring to the reader's attention raise some of 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 personal accountable for family violence through the civil processtheir behaviour. 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 claims is that they are often expensive to bringto 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 not 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 complexcomplicated. A related issue is that you might 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 inform 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 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''.
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 calculation division of asset divisionproperty. This can make recoverability more straightforwardrecovering your damages award much easier. In ''[https://canlii.ca/t/1f0tm Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC), a tort claim was made in the same proceeding as a claim for the 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 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==
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