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You can claim civil damages for torts, harm and loss between spouses in Ontario family law.

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You can claim civil damages for torts, harm and loss between spouses in Ontario family law.

Introduction: Requesting Compensation for Spousal Harm

More often than not, divorcing spouses tend to inflict harm on each other in one way or another. When a spouse especially chooses to divorce due to cruelty, as a family lawyer, I often receive questions from clients such as “can I be compensated for all the economic, physical or emotional harm that I suffered?”. Although it seems that divorce lawyers and family lawyers give contradictory answers in Ontario, my legal research points to the brief answer of: yes, it is possible. Intersecting practice areas is nothing new to family law. Domestic violence for example often “drags” the criminal justice system into family court cases. But when you are entitled to civil losses in Toronto civil courts, can you unify the civil and family claims in one case? What is the legal procedure for that?

The reason behind the doubt in family lawyers is that “civil” compensation is not governed by Ontario family laws. The area of family law has a multitude of legislations, regulations and case law. For example, there are the family law rules, which essentially replace the civil rules of procedures in civil court and govern procedures in family court. There is also the Family Law Act which governs property issues between spouses. Then there is the Children’s Law Reform Act which governs rights with respect to Children for common-law couples. There is also the Divorce Act which not only governs divorces across Canada, but also extends to rights with respect to children and corollary relief including child support, spousal support etc. More specifically, there are the Child Support Guidelines which are rules/guidelines governing the amount of child support a party is entitled to.

As you can see, there are many statutes and regulations for family laws. Unfortunately, none of them include provisions for losses that spouses cause to each other.

The next step would be to review case law. Case law usually sets precedents that judges are likely to (and should usually) follow. They are a predictor of the direction that a judge should take. In other words, if a judge in the past allowed claims, a judge in the future is likely to follow the same tradition, until a higher court disallows it or narrows down the precedent.

Case Law: Family Law precedence provides that harm and loss inflicted by a spouse onto another may be compensated by civil damages in Ontario family court & in one family law case

According to case law, judges in Ontario have awarded civil claims to spouses in family court on multiple occasions.

In Yenovkian v. Gulian, 2019 ONSC 7279, the judge has assessed, in paragraph 43, whether they should award damages for torts between family parties in family case (see question 9 at para 45). Paragraphs 160 and 161 indicate that when civil claims are started by either family party against the other, it is likely that civil trials will order that they are heard together with the family claims (in family court). In the same family case, the judge applied legal tests for civil torts (which is a civil claim as opposed to a family claim) and concluded that damages should be awarded.

In Montgomery v. Kenwell, 2017 ONSC 3107, it appears that, starting at paragraph 33, the family law applicant sought damages for inter-spousal assault in his family application and presented a list of precedents establishing amounts of damages awarded for similar cases of inter-spousal assaults. The judge awarded $75,000.00 in damages, citing that a particularly important factor in increasing the damages is the breach of trust between spouses in a marital context.

In McLean v. Danicic, 2009 ONSC, the applicant similarly requested in her family application damages for pain and suffering, and the judge has considered the family history and the application as whole when awarding 15,000$ to compensate her for intentional mental distress caused to the applicant.

Conclusion: Family Law Procedure to Ask for Civil Compensation for Financial, Emotional and Physical Loss Between Spouses

As a conclusion, (ex)spouses typically have two ways to pursue civil damages for loss: a spouse may either start a separate civil claim in parallel to a family application, in which case the civil judge is likely to order that the civil claim be tried together with the family application; or, a spouse may directly request compensation in their family law application, while providing a set of cases listing examples of monetary awards in similar cases for inspiration.

Contact Us – A Toronto Family Lawyer

If you are suffering from loss because of your spouse and would like to request for civil damages while making a family claim, it is advisable to seek the services of a reputable family lawyer who will pay attention to the details of your case and structure it to ensure that you receive the highest awards possible. Our family law firm is located in Markham and we serve families across the Greater Toronto Area. We are more than happy to assist you with your case and represent you in court. Call us at 647 806 9184 to book an appointment or email us at contact@ranacharif.ca.

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