“That said, in general, I agree with the Father that the Divorce Act creates a complete statutory scheme when it comes to resolving financial issues post-separation, and that Court must be careful not to arm family law litigants to overly complicate the litigation through speculative and spurious tort claims.
However, given the recent reforms to the Divorce Act, the Father’s concern is less persuasive because “family violence” is already relevant to the issue of parenting. For example, here, the Mother pleaded the factual substance of the tort claim in her original 2016 Answer such that the Father was well-aware that her allegations of abuse would be live issues in the family law matter, regardless of the claim for damages: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at paras. 9-12; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 41. Indeed, the Father responded to the allegations in his original Reply back in 2016.
With 2021 reforms to the Divorce Act, Parliament has explicitly recognized the devastating, life-long impact of family violence on children and families: S.S. v. R.S., 2021 ONSC 2137, at paras. 28, 47; J.K. v. R.K., 2021 ONSC 1136, at paras. 34-49. Moreover, the Divorce Act defines “family violence” expansively to include conduct that goes beyond physical assaults:
family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.
Yet, despite this statutory recognition within the Divorce Act, the legislation does not create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence. At its heart, spousal support is compensatory rather than fault driven. As such, spousal support awards are not meant to censure particularly egregious conduct during the family relationship that calls out for aggravated or punitive damages: see, Leskun v. Leskun, [2006] 1 S.C.R. 920, 2006 SCC 25, at paras. 15-24.
Indeed, s.15.2 of the Divorce Act dictates the factors that I must consider when making a spousal support award, and “family violence” is not one of them. The legislation specifically dictates that I must not take into account “misconduct of any spouse in relation to the marriage” when making a support order: s. 15.2(5). The objects of spousal support are narrowly focused on compensation and self-sufficiency in the context of a relationship of economic interdependence and mutual aid: s.15.2(6). On this basis, for example, I refused to allow either party to adduce evidence of alleged extra-marital affairs in the matter before me. To the extent that abuse may be relevant to support, given its compensatory nature, the plaintiff establish that the harms that flowed from the abuse are directly relevant to the economic fallout of the marriage: Leskun.
The Divorce Act does not provide a victim/survivor (“survivor”) with a direct avenue to obtain reparations for harms that flow directly from family violence and that go well-beyond the economic fallout of the marriage: see Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 5. In unusual cases like this one, where there is a long-term pattern of violence, coercion, and control, only an award in tort can properly compensate for the true harms and financial barriers associated with family violence. The no-fault nature of family law must give way where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support: “Intimate relationships and spousal status are not a shield from tort liability. It would be wrong to suggest that the law should allow intimate partners to commit actionable wrongs with impunity,” G. (M.H.) v. B. (R.J.), 2021 ONSC 4308, at paras. 36-42.
Allowing a family law litigant to pursue damages for family violence is a matter of access to justice. It is unrealistic to expect a survivor to file both family and civil claims to receive different forms of financial relief after the end of a violent relationship. That said, I agree with McLeod J. in G. (M.H.) that it is incumbent on case management judges faced with tort claims in a family law context to ensure that the claim is genuine at the pleadings stage, and to find efficiencies, reduce duplication, and make a presumptive order for trial together. Here, all those steps were taken by Price J. in March 2021 at the joint settlement/trial management conference.”