Tort actions for spousal violence have become more commonplace in Canada
during the past 30 years, at least in part because of increased public awareness
and universal condemnation of such behaviour. But given the continuing
prevalence of domestic violence in the community, only a tiny fraction of
potential tort claims are ever advanced:
a. Many litigants may be unaware the tort option exists.
b. Some lawyers and clients may be reluctant to pursue such a claim fearing
it will aggravate an already difficult situation.
c. Family finances are often so limited there is little point in adding yet
another potential monetary claim to the mix.
d. There may even be systemic discouragement. Over the years the family
court system has worked hard to get away from blame and recrimination – by
discouraging “inflammatory” affidavits in favour of case management; by telling
conflicted parents to focus more on the future than the past; and by promoting
conciliation and collaborative dispute resolution. This is by no means a bad
During family law proceedings, spouses may claim damages for tortious
behaviour that took place during the relationship. Indeed, it is preferable that all
potential claims arising from the breakdown of a relationship, including tort
claims, be dealt with at the same time. A consolidated action has the advantage
of saving litigation costs and court time; ensuring consistency in the outcomes;
and allowing a tort judgment to be factored into the overall financial result.
However, the conduct in question must rise to the level of tort and may not
simply be evidence of a dysfunctional relationship. Tort claims based on
physical violence perpetrated by a spouse will almost invariably include a mental
health or “emotional impact” component. Claims based solely on “intentional
infliction of mental suffering” have been less prevalent – and less successful –
perhaps a reflection that mental suffering is hardly a unique circumstance
among separating spouses.
The short answer, then, is that if there were no physical injuries associated with
the tort, it is probably not worth pursuing. Further, even if there were physical
injuries, but they were not objectively serious or isolated, it is still probably not
worth pursuing. When damages are awarded, which is more the exception than
the rule, they are modest, and often not worth the costs and its interference with
resolution of the other issues. In other words, if one wishes to pursue a tort, as
part of his or her family case, it should be serious; the moving party should have
the finances to litigate it; and he or she had better hope the spouse has the
money to pay any award.
By Charles Baker