PHOTO: Kevin Caspersz is a senior lawyer at Shulman & Partners and Nainesh Kotak is principal at Kotak Law
In a ground-breaking decision, a superior court judge has ordered a man to pay his former wife $150,000 in damages due to physical and psychological abuse over their 16-year marriage, separate from payments imposed to support the family’s financial situation.
Justice Renu Mandhane established a new tort of family violence that addresses the aggregate impact of an abusive marriage despite the Divorce Act no-fault rules that a judge cannot consider misconduct when deciding spousal support. Instead, Justice Mandhane ruled that judges may consider a pattern of abuse in unusual cases and award damages where appropriate.
While recent amendments to the Divorce Act explicitly recognize the devastating, life-long impact of family violence on children and families, Justice Mandhane noted that the legislation does not consider all the legal problems raised by a family violence claim.
“I see this as opening the floodgates for a lot of litigation and parties attempting to use this, whether to seek more damages or leverage as part of the litigation to seek a more favourable out-of-court settlement.”
“I won’t be surprised to see an increase in cases related to this claim and won’t be surprised to see it being perceived as being abused.”
Justice Mandhane highlights that a pattern of abuse goes beyond simply bold allegations or assertions, and it will be the court’s job to determine early if the litigant’s claims are valid, Caspersz says.
“That’s her safeguard that she’s hoping will prevent the tort from being brought improperly, but that’s certainly going to burden the courts or the judges that handle matters early in determining whether the claim is valid based on the facts pled.”
As more cases begin to deal with this tort, perhaps it will be more fleshed out with more parameters and requirements to ensure it adequately qualifies as part of any hearing, he says.
Nainesh Kotak, a personal injury lawyer at Kotak Law, says the decision is ground-breaking and will have broad implications. “It is probably one of the most significant decisions that one will see in the next five years.”
While there is a peripheral risk of increasing the burden on courts, Kotak says the decision is necessary considering the access to justice issue.
“Allowing a family law litigant to pursue damages for family violence is a matter of access to justice” and “it is unrealistic to expect a survivor to file both family and civil claims to receive different forms of financial relief after the end of a violent relationship,” she wrote.
“In unusual cases like this one, where there is a long-term pattern of violence, coercion, and control, only an award in tort can properly compensate for the true harms and financial barriers associated with family violence. The no-fault nature of family law must give way where there are serious allegations of family violence that create independent and actionable harms that cannot be compensated through an award of spousal support.”
Following the abusive episodes, she often endured long periods of silent treatment from him, ending only after complying with his sexual demands.
“The general pattern was that the father would become irrationally jealous, drink, engage in verbal arguments, and then beat the mother,” Justice Mandhane wrote.