KPA Lawyers - January 6, 2021
There is a popular point of confusion among family law litigants in Ontario, and even some family lawyers, about whether family court in Ontario deals with tort law.
If you don’t know what tort law is, here is a formal definition of the word “tort“. In plain English, it covers a broad range of wrongful behaviour that you can get sued for.
Examples of torts include things like battery (unconsented touching or hitting), intentional infliction of mental suffering, intrusion upon seclusion (i.e. invasion of privacy), defamation, public disclosure of private embarrassing facts, etc.
I am primarily a civil litigation lawyer, but I work with some very bright and hard-working family lawyers at KPA. I am often surprised to see the frequency at which family lawyers across Ontario are unaware of the fact that civil torts, such as allegations of physical or emotional abuse, can be dealt with in family court, and can significantly increase a person’s claim for monetary compensation in family court.
While researching this topic online, I came across an article from one family law firm entitled “No Claims Between Spouses For Tort”. If that article is no longer live, then here is a screenshot. The article was making the point that “no tort actions exist for wrongful interference with access rights as between spouses”, which is true.
However, consistent with the popular misconception that I mentioned a moment ago, the article also says “The question often arises whether there is any relief available from the harm suffered by spouses from the wrongful acts of the other party. This civil area of law is known as Tort Law. The short answer is no.”
That is not true.
There is obviously a genuine public-interest at stake in ensuring that Ontarians have access to accurate legal information, so it is in that spirit that I to write this clarification about this issue. It’s not unusual for reputable and capable lawyers to publish material that is, at times, confusing for people without formal legal training. So, I do not write this article to criticize any specific lawyers or law firms, but I do hope that, for example, victims of abuse in Ontario who find themselves in family court understand that they can claim civil damages for the harm they experienced.
In the Ontario family law case of Yenovkian v. Gulian, 2019 ONSC 7279, Mr. Vem Yenovkian, engaged in years of cyberbullying against Ms. Sonia Gulian on websites, YouTube videos, online petitions and emails. The court made a determination on the issues of “the best interests of the children, a restraining order, child and spousal support, equalization and property issues, and a civil claim for intrusion on seclusion, intentional infliction of mental suffering, invasion of privacy, and punitive damages.”
As I mentioned, “intrusion upon seclusion” and “intentional infliction of mental suffering” are civil torts. In that case, the court stated, at paragraphs 192 and 193, the court awarded $50,000 for intentional infliction of mental suffering and $100,000 for privacy torts (specifically “false light” and “public disclosure of private facts”).
In another Ontario family law case of Montgomery v. Kenwell, 2017 ONSC 3107, the Jesse Archibald Kenwell violently abused the Applicant which left her with “permanent loss of hearing in her left ear… low self-esteem, social withdrawal, sleep deprivation and symptoms of depression and anxiety”.
In that case, in addition to the family court making a determination about child support, restraining order, and a divorce, the court also awarded the Applicant $75,000 in damages for assault and battery during the marriage.
In another Ontario family law case of McLean v. Danicic, 2009 CanLII 28892 (ON SC), a family court judge ordered Darko Danicic to pay $15,000 in civil damages to his spouse after he engaged in bullying and harassment intended to intimidate her into withdrawing her family law claims against him. He engaged in physical threats, made a false report to her insurer, and threatened to send sexually explicit photos of her to family and friends.
In another Ontario family law case of Brisson v. Gagnier, 2011 ONSC 6340 (CanLII), lawyers unsuccessfully tried to argue that the family branch of the Superior Court of Justice did not have jurisdiction to make a court order for the sale of corporate assets under the false understanding that such a dispute would have to be taken to civil court instead. The court had this to say in response: “This argument is without merit. First of all, the Superior Court of Justice whether it hears family matters or corporate matters is the same court. Different statutes and common law principles may apply in different fields but that is the extent of the difference.”