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Judge awards damages for 'family violence', creating new tort, or civil wrong, of 'family violence'

Financial Post: Scammers, grifters, and tort lawyers are licking their chops...

'In a ground-breaking decision, an Ontario court recently ordered a husband to pay his former wife damages of $150,000 on account of the physical and psychological abuse she endured over their 17-year marriage. In making the award, the court gave life to a new tort, or civil wrong, of “family violence” that addresses the cumulative impact of an abusive marriage.

'Despite the changes, Justice Mandhane noted that the legislation did not address all the legal issues raised by an allegation of family violence.

'“At its heart, spousal support is compensatory rather than fault driven. As such, spousal support awards are not meant to censure particularly egregious conduct during the family relationship that calls out for aggravated or punitive damages,” she wrote.

'In fact, the Divorce Act makes clear that a judge must not consider a spouse’s misconduct when making an order for spousal support.

'Justice Mandhane continued by noting the Divorce Act “does not provide a victim/survivor with a direct avenue to obtain reparations for harms that flow directly from family violence and that go well-beyond the economic fallout of the marriage…. (T)he 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.”

'The judge filled in the legislative gap by recognizing the new tort of family violence and went on to set out a test to be applied in assessing if damages ought to be awarded. Specifically, damages may be awarded on account of conduct by a family member in a family relationship, that 1) is violent or threatening, or 2) constitutes a pattern of coercive and controlling behaviour, or 3) causes the family member to fear for their own safety or that of another person.'

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