Allowing abuse damages in divorce would prompt flood of high-conflict cases, appeal court hears

Allowing ex-spouses to claim damages in family court for physical abuse would create an onslaught of high-conflict cases that would harm children and swamp overburdened judges, a lawyer for a Toronto-area man told the Ontario Court of Appeal on Thursday.

Under the federal Divorce Act’s no-fault rules, judges cannot consider spousal misconduct when determining child or spousal support and division of property.

But Ontario’s highest court is considering whether to endorse a lower-court ruling establishing for the first time in Canada that a pattern of family violence during a marriage can be compensated in family court.

The amounts at stake in the damages award are vastly larger than the now-settled support amounts that had been at issue in the lower court. The ex-husband, A.A., owed his ex-wife, K.A., under $10,000 in property equalization, and just over $800 a month in child support. (The Globe and Mail is not using their full names to protect the children’s privacy.)

But Ontario Superior Court Justice Renu Mandhane ruled he owed $150,000 in damages for a pattern of abuse over a 16-year marriage.

The larger question before the Ontario Court of Appeal – as framed by Geoffrey Carpenter, lawyer for A.A. – is whether allowing such claims runs counter to 40 years of efforts to reduce courtroom conflict and steer people away from litigation.

“The change you are being asked to consider today is the most significant one that has ever come before the courts,” Mr. Carpenter told Justice Mary Lou Benotto, Justice Benjamin Zarnett and Justice Gary Trotter. (He was referring to family-law cases.)

He said courts and governments have stressed “finality, certainty and predictability” as a way of encouraging people to settle without fighting it out in court.

Justice Zarnett asked Mr. Carpenter whether cases of family violence should be treated differently from cases that do not involve it. Mr. Carpenter said abuse tends to happen “in the shadows,” and Justice Mandhane’s approach would produce large numbers of unmanageable, “hesaid, she-said” conflicts that would not be in children’s best interests.

But lawyers for the mother argued that the courts have the authority to address what they called an epidemic of abuse.

Brooke MacKenzie said Mr. Carpenter’s warning of large numbers of cases amounts to: “Family violence is such a big problem we should do nothing about it.”

Justice Mandhane, the province’s former chief human-rights commissioner, said allowing for family-violence awards in divorce cases (as opposed to filing a separate lawsuit for damages) would reduce financial barriers to leaving abusive relationships.

Ms. MacKenzie said she and her co-counsel Julie Hannaford did not object to Justice Mandhane’s approach, but added that it still leaves a gap in the law, by not recognizing patterns of behaviour that may or may not be physically abusive, but that are designed to control and terrorize.

They offered the court what they called a narrower alternative: Let spouses seek damages in family court for a pattern of “coercion and control” – including such things as a spouse restricting the other’s spending to ensure financial dependence, limiting communications with family and friends, insulting or belittling, or threatening to reveal intimate images or report to immigration authorities.

“One helpful analogy to that is ‘death by a thousand cuts,’ ” Ms. MacKenzie told the judges, “but one that I prefer is an analogy to flowing water slowly eroding a rock over time.”

Courts have allowed certain damage claims – known as torts, or civil wrongs – in divorce cases. Spouses can seek damages for harassment on the internet, or intentional infliction of mental distress.

But Ms. MacKenzie said emotional-distress cases are few in family court, because of legal hurdles, including a need to show flagrant and outrageous behaviour, and visible, provable harm.

Ontario’s highest court is considering whether to endorse a lower-court ruling establishing for the first time in Canada that a pattern of family violence during a marriage can be compensated in family court.

Those requirements, she said, would not be needed to show coercion and control.

Mr. Carpenter said the court should steer clear of that idea.

“Our family system will be in chaos if people are able to advance a tort claim and not have to show any particular harm – just to say my partner engaged in inappropriate conduct,” he said.

Justice Mandhane’s ruling built on case law in the United States in which women have successfully sued their intimate partners for damages over “battered woman syndrome.” The federal Divorce Act, since 2021, has said family violence can be taken into account in court decisions on parenting roles.

Mr. Carpenter argued that dramatic changes to family law should be made by legislators, not judges.

The 2021 changes to the Divorce Act stressed the reduction of conflict and attempted to steer people toward alternative forms of dispute resolution, he said.

If legislators had wanted to create a way to compensate battered spouses for their abuse, they could have, he said, by allowing an unequal division of property in cases of family violence, or by allowing the parties’ conduct to affect spousal support.

The appeal court reserved judgment.