The world of family law peers behind closed doors and reveals the most intimate of details. Most often, courts decide issues of custody and access, spousal support and property. These issues require a recitation of the private details of a couple’s life together: who managed the household, who went to the children’s doctor’s and dentist’s appointments, who looked after the finances and what the family’s spending pattern was.
The evidence required to determine support and property issues, however, pales by comparison to the gut-wrenching evidence necessary to prove a claim for damages for spousal assault.
Periodically, in a family law case, one spouse may seek damages in addition to her or his claims for support and for property. When a spouse does so, she or he may seek special damages, general damages, aggravated or punitive damages.
While special damages compensate a claimant for a quantifiable monetary loss, such as lost earnings or medical bills, general damages are for hard-to-quantify, non-monetary losses such as damages for pain and suffering and disfigurement.
Aggravated damages compensate a claimant for intangible damages such as humiliation or distress, and punitive damages punish a wrong-doer for purposefully harsh, vindictive or malicious behaviour.
It is often assumed that if there is spousal abuse, the involvement of the judicial system is limited to criminal charges. It is, however, becoming more common for people involved in family law litigation to make claims for monetary damages as compensation for the harm suffered arising from assaults, which occurred during the relationship.
For many years when claims for damages were added to the usual family law claims, the damages awarded were modest. In Belanger v. Belanger, a 1995 Ontario case, the husband stabbed the wife five times, resulting in the wife’s hospitalization for three days. The husband received a seven-year prison sentence for his actions, but the wife received only $5,000 in damages: $4,000 in general damages, and $1,000 in punitive damages.
In Wandich v. Viele, a 2002 Ontario case, over the course of seven to nine incidents, the husband threatened his common-law wife with a knife, choked her, punched her, caused a bloody nose, and poked her in the eye. The husband was criminally convicted, but there was no award of punitive damages made: the judge found that the stigma of a guilty verdict in criminal court was an adequate penalty and deterrent.
In Marchese v. Marchese, a 1999 case in which the wife alleged repeated assaults throughout their more than 50-year marriage, as the wife had not received medical treatment for any of the assaults and the assaults were minor, the wife was awarded general damages of $7,500. The judge held that all assaults before 1975 had been barred because the previous family law legislation, the Married Woman’s Property Act, precluded spouses from suing each other in tort.
However, at long last, the winds of change have begun to blow.
In Montgomery v. Kenwell, a 2017 Ontario case, the wife and mother of the parties’ two children provided detailed evidence at trial about her husband’s alcohol-fuelled rages. He would push or slap the wife, pull her hair, and if he felt he was being ignored, he would kick the family’s dogs with steel-toed boots to get attention. He sexually abused her repeatedly. He threatened to “hunt her down” if she ever left him and called her derogatory names in front of the children. He was criminally convicted four times. One conviction arose from an incident when the wife was holding their baby daughter. The husband pushed the wife to the ground so hard he broke her eardrum, resulting in permanent hearing loss.
The children also felt bullied and intimidated by their father. During an argument with his daughter over cleaning her room, he allegedly threw her on the floor by her neck after destroying her stereo. While riding on an ATV with his son, the husband’s conduct resulted in the son being in a coma. The son was permanently injured.
In Montgomery, the trial judge recognized that the abuse of a spouse is a flagrant breach of trust, as trust is central to a marital relationship. Justice Healey went on to say that, “The trust inherent in a domestic relationship, when breached by one partner deliberately harming the other, should be… recognized in tort law through an elevated aggravated damage award.” Other factors which he found should increase an aggravated award included humiliation, degradation, violence, oppression, inability to complain, reckless conduct displaying a disregard of the victim and post-incident conduct which aggravates the victim’s harm.
Justice Healey found that in addition to the wife’s permanent hearing loss, the wife had low self-esteem, social withdrawal, sleep deprivation and symptoms of depression and anxiety. His Honour also took into account the son’s near-death accident and continuing impairment, which continued to contribute to the wife’s ongoing symptoms.
Justice Healey then decided that, “an award of $75,000 (was) well warranted in order to provide a reasonable amount of (general) damages to the (wife).”
Higher damage awards for spousal assault are long overdue.
Laurie H. Pawlitza is a senior partner in the family law group at Torkin Manes LLP in Toronto.