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The Ontario Superior Court building in Toronto on Jan. 29, 2020.Colin Perkel/The Canadian Press

An Ontario judge has created a new legal claim of “family violence” in divorce cases, opening the door to large financial awards and bitter litigation despite the no-fault rules in place across Canada in family disputes.

Under the federal Divorce Act’s no-fault rules, judges cannot consider spousal misconduct when determining such matters as child or spousal support and division of property. But Ontario Superior Court Justice Renu Mandhane – a former chief commissioner of the province’s human-rights commission – ruled that in unusual cases, judges may take into account a history of abuse, and award damages where appropriate.

The ruling opens the possibility that a pattern of spousal abuse can be compensated in divorce cases, without abused spouses needing to file a separate claim in civil court. But it could add to the conflict when separating couples attempt to settle their finances in court.

“The no-fault nature of family law must give way where there are serious allegations of family violence” that are not compensated by spousal support, Justice Mandhane wrote in her ruling on Feb. 28.

She ordered the ex-husband in the case, A.A., to pay his ex-wife, K.A., $150,000 for a 16-year pattern of physical abuse, coercion and control. That amount is separate from support payments ordered based on the family’s financial situation.

Family-violence claims require compensation for the pattern, not for individual incidents, the judge said. The damages award allows K.A. to keep A.A.’s half of the proceeds of the sale of their home, which had been held in trust.

The Globe and Mail is not identifying the family by name to protect the children.

Frances Wood, editor of the Ontario Family Law Reporter, said she believes this is the first time a Canadian court has recognized the civil wrong, or tort, of family violence. The ruling applies only in Ontario, but could be influential in other provinces.

She praised the ruling, but said lawyers and judges will need to be careful to ensure it doesn’t lead to massive amounts in unscrupulous, costly claims. “It’s groundbreaking, it’s huge. I think it’s a great step.” But she added: “We don’t want all sorts of family-law litigants to use this kind of claim in a way that it’s not intended – to increase litigation costs, to almost weaponize it, to use it in a way that it almost becomes abusive.”

Kavita Bhagat, a lawyer in Brampton, Ont., said she receives many referrals from social-service agencies of women who have experienced abuse, and her clients often ask if they can claim additional relief in family court because of that. Now, she can tell them that they can.

“It’s going to open the floodgates for sure,” she said. “I compare this even to the residential-school issue. I know it’s a stretch, but at the end of the day, if there is systemic abuse, you need that additional financial assistance to enable you to move forward with your life.”

Family lawyer Shannon Beddoe said the ruling could fundamentally shift the no-fault premise of family law.

“You can imagine the unwieldiness of our already overburdened courts having to wade into the mud and analyze who did what to whom, whether conduct is tortious [legally wrong], and whether monetary damages are appropriate in every family law case. That is why we have a no-fault system.”

A.A. and K.A. were introduced by their parents in India and married soon after. They moved to Canada in 2000, and although well-educated, had difficulty establishing themselves in well-paying jobs. They have two children, who have been estranged from their father since 2017. The couple split in 2016. The father denied the abuse, and said his wife fabricated the allegations because he left her. Justice Mandhane believed the mother, and said her credibility did not suffer because she stayed in the marriage.

“I accept that the father used physical violence at the beginning of the marriage to condition the mother to obey him, that the mother became more vulnerable and the father more violent after immigrating to Canada, that the mother did not leave the relationship at first because of family expectations and later because of the children, and that she was generally socially and financially dependent on the father.”

The ruling builds on case law in the United States in which women have successfully sued their intimate partners for damages over “battered-women’s syndrome.” The ruling also relies on a new emphasis in the federal Divorce Act, as of last year, on the harms caused by family violence. That law, though, does not allow for a history of family violence to be considered in assessing spousal support.

It has always been possible to sue an intimate partner for assault outside of divorce cases. Such awards have tended to be small, Justice Mandhane said, citing several Ontario cases, but added that large awards are “on the horizon.” She pointed to a British Columbia ruling from the fall in which a woman was awarded $795,000 for a single episode of violence. That award was not, however, in the context of a divorce case.

Requiring someone to sue separately from their divorce case is unrealistic after a violent relationship ends, and would deny people with worthy claims access to justice, Justice Mandhane said.

Given that spousal violence causes physical and psychological harm, including depression and anxiety, and low career advancement, Justice Mandhane said, creating a new civil wrong, or tort, of family violence will help “to remove the economic barriers facing survivors that try to leave violent relationships and access justice.”

She said that while judges need to be careful about creating new foundations for liability, “there is scope to do so where the interests are worthy of protection and the development is necessary to stay abreast of social change.”

The mother, who was unrepresented by counsel, could not be reached for comment. The Globe received no response to messages left by e-mail and telephone for the father’s lawyer.

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