One of the significant amendments to the Divorce Act in 2021 was the recognition of and reference to the tort of family violence. Unfortunately, family violence has devastating and lasting impacts on people nationwide. In relationships where family violence has already occurred, a separation or divorce may only exacerbate the risk of violence.
This blog post will provide an overview of the amendments to the Divorce Act pertaining to family violence and how the courts have considered the newly recognized tort of family violence. It will also summarize what a plaintiff must prove to be successful in their claim for damages resulting from family violence.
Section 2 of the Divorce Act broadly defines family violence as any conduct by one family member to another which is violent, threatening, or shows a pattern of coercive control and causes a family member to fear for their own safety or the safety of someone else, along with the direct or indirect exposure of a child to such conduct, including:
“(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.”
In some circumstances, a separation or divorce may worsen coercive control patterns. Therefore, it is essential to ensure that anyone who has experienced family violence, or believes it may be imminent, contacts the authorities and works with a trusted family lawyer for comprehensive advice on their options and guidance to additional resources as needed.
In the case of Aluwhalia v. Aluwhalia, the applicant father and respondent mother were married for 17 years and had two children together before they separated in 2016. At trial, the parties sought a determination on child support, spousal support, property division and the mother’s claim for damages resulting from the tort of family violence.
In support of the mother’s claim for damages resulting from family violence, she provided evidence that the father belittled her from the beginning of the marriage and negatively commented on her appearance and difficulties conceiving. He later threatened to leave her and the children without money, gave the mother the “silent treatment” for months, and demanded sexual intercourse. The mother stated she was scared of the father and continued to comply with many of his requests. Her counsel noted that before the tort of family violence, no legal cause of action captured the true nature and resulting harm arising from patterns of abusive behaviour by an intimate partner.
The Court found sufficient evidence to support a finding of a pattern of coercive and controlling violence by the father to the mother, which included physical, emotional, psychological and financial abuse. The Court recognized the new common law tort of family violence and ordered the father to pay the mother damages of $150,000.
The father has recently appealed the decision to the Court of Appeal, asking the Court set aside the recognition of the tort of family violence and thereby reduce the order for plaintiff damages.
In Aluwhalia v. Aluwhalia, the Court noted that to determine whether family violence has occurred, a plaintiff must establish that there has been conduct by one family member towards another family member that:
- is violent or threatening; or
- constitutes a pattern of coercive and controlling behaviour; or
- causes the plaintiff to fear for their own safety or that of another person.
The Court acknowledged an overlap between the tort of family violence and existing torts (legal claims). However, the critical distinction is between an isolated incident versus a subtle and cyclical pattern of harm that may occur in intimate-partner relationships.
To prove on the balance of probabilities that a family member has engaged in a pattern of coercive and controlling behaviour towards a plaintiff, they must prove that the conduct has occurred on more than one occasion by proving evidence of specific examples.
If liability is established, additional factors, such as the extent, duration and specific harm, will become relevant for the court’s analysis when assessing damages. Punitive damages may be awarded based on the social harm caused by family violence. Further, aggravated damages may be awarded based on a breach of fiduciary duty, betrayal of trust, and post-incident conduct on the abuser’s part.
Due to the newness and complexity of this new tort and the emotions involved with a claim for damages resulting from family violence, plaintiffs must be prepared to recall particular details from their relationship. However, for a survivor of family violence, pursuing a claim for compensation can be an important step on their path to move forward and address some of the financial barriers caused by the violence.
Family violence can have harmful physical and psychological impacts not just the parties involved but also on the children of the relationship. Since the amendments to the Divorce Act have come into force, Canadian courts are now required to consider the potential impact of family violence when making decisions about the children, such as parenting time.
When making an order for parenting time, the court must consider all relevant circumstances in light of the paramount principle, that is, whether it is in the child’s best interests, per section 16 of the Divorce Act.
According to Statistics Canada, 114,132 individuals, 80% of which were women and girls, reported intimate-partner violence to the police in 2021. However, experts believe that many more incidents have gone unreported. Unfortunately, many survivors of family violence experience physical abuse to their head, neck and face, and it is estimated that up to 75% of abused women suffer a concussion or other brain injury due to intimate-partner violence.
A recent study published in the Journal of Law and the Biosciences found that while family lawyers can use a brain injury as evidence of family violence, the alleged violent intimate partner may use the diagnosis to argue that the injury has diminished their partner’s ability to parent their children. This can create a risk of negatively impacting the partner’s parenting time and decision-making responsibility.
The study recommended that trauma-informed medical professionals should be involved in family cases to provide evidence relating to the impact of such injury on the individual. However, experts have noted that financial barriers may prevent a survivor of intimate-partner or family violence from being able to afford a lawyer. Further, not all lawyers and medical professionals are well-educated in the context of family violence. Therefore, it is essential for a claimant to work with an experienced family lawyer who can carefully assess the potential benefits and risks associated with a potential claim.
Contact the Family Lawyers at Bortolussi Family Law in Vaughan for Trusted Advice on Family Violence
The compassionate family and divorce lawyers at Bortolussi Family Law understand the importance of acting quickly to ensure protection in intimate-partner or family violence situations. We work closely with our clients to determine the best way for them to move forward and help them assess whether they may be entitled to compensation resulting from family violence.
From our office in Vaughan, Bortolussi Family Law helps simplify the complexities of family law matters for clients across the Greater Toronto Area, including Mississauga, Brampton, Caledon, Whitchurch-Stouffville, Woodbridge, Kleinburg, Concord, Bolton, Nobleton, Markham, and Etobicoke. To schedule a confidential consultation with one of our skilled family and divorce lawyers, please call us at 416-987-3300 or contact us online.