Marriage and domestic violence | Civil liability interferes in family law

In Ontario, a victim of domestic violence has just received $150,000 in damages from her ex-husband in her divorce decree. In Quebec, this is seen occasionally, and judges are also beginning to award damages for harassment or psychological violence, in cases such as parental alienation or the publication on the Internet of intimate photos to take revenge for one’s ex-husband.

Louise Leduc
The Press

No, the concept of “no fault divorce” does not cover everything. But the line between behaviors that are part of the classic marital tear and the excesses to be punished can be difficult to draw.

In early March, Ontario Superior Court Judge Renu Mendhane ordered a man to pay his ex-wife $351,000. This includes $150,000 in damages for the 16 years of physical abuse, coercion and control he put his family through. Among other things, the man, who abandoned his wife and children in 2016, continued to be the only one with control over their bank accounts, leaving his family destitute when he left.

In divorce proceedings, one avoids finding a culprit or apportioning blame, but this does not apply “in the presence of serious allegations of domestic violence”, writes Renu Mendhane. In this case, the relationship “was not just unhappy or dysfunctional. She was violent, ”insists the judge.

“It is important that our law recognizes the harm caused by family violence. This social issue has been criminalized and requires a civil remedy. »

In the media of English Canada, it was seen as a new way of acknowledging the wrongs done to victims of domestic violence.

Also in Quebec

In Quebec, in our civil law system, law professors M^and Dominique Goubau and M.^and Alain Roy note that while not common, such damages in divorce judgments are awarded at repeated intervals.

Until 1985, divorce sanctioned the person responsible for the failure of the marriage, recalls M^and Dominique Goubau, law professor at Laval University. “Adultery or violence were marital faults which could have financial or material consequences in the context of the settlement of the divorce, or even on the custody of the children. »

In 1985, the Divorce law has done away with the notion of fault and replaced it with the notion of the breakdown of the marriage. The Ontario judgment “is not a way of reintroducing the notion of fault to one or the other of the spouses”, specifies Dominique Goubau.

Given “the large sum of the damages awarded and the current social disapproval of domestic violence”, “it is likely that this judgment will make small ones”, foresees M^and Goubau.

Beyond overt physical violence

Étienne Bernier reviewed the case law on intra-family civil liability as part of his master’s thesis in law.

Already, in 1982, he recalls, a judge had awarded $42,000 to a victim in his divorce settlement. A sordid affair, a stabbing case.

“When the facts are so serious, the judges do not hesitate,” said Mr. Bernier, who identified some thirty judgments in which damages of up to $290,000 were awarded due to physical violence.

“Judges have also begun to sanction parental alienation and the dissemination of intimate images on the internet – dubbed ‘revenge porn’. It’s not a big trend, but civil liability is really starting to interfere in family law. »

“For a long time, continues Mr. Bernier, judges took it for granted that certain behaviors were part of the vagaries of married or family life. We thought that a little psychological violence was inherent in the fact of getting married. »

Judges in family law – as in labor law – are becoming more sensitive to psychological violence, but it has to be very obvious, points out Mr. Bernier, directing us to certain extracts from revealing judgments.

“Any marital separation brings its share of frustration and, on both sides, regrettable gestures and words, but in this case, the court does not consider that reasonable limits have been exceeded”, judge Jacques Babin ruled. in 2018.

Very clearly, underlines Mr. Bernier, the judges do not want the ex-spouses and their lawyers “to start producing Excel files asking for $5,000 for such an insult pronounced two years earlier and another $5,000 for another”.

“It is of the very essence of relationships that they begin and unfortunately sometimes end. Apart from very specific situations, bad couple relationships and matrimonial reproaches in the context of normal life do not constitute faults that can lead to liability”, noted Judge Richard P. Daoust in 2009.

Damages in case of infidelity?

For his part, M.^and Alain Roy, who is the author of the report of the Advisory Committee on Family Law, wonders if, in this movement, judges will not jump the fence of family law even more and will not one day go as far as punish infidelity in marriage.

After all, article 392 of the Civil Code is clear, he points out. “Spouses who enter into marriage are not only subject to a duty of respect, which excludes physical cruelty and mental cruelty, but they are also bound by a duty of fidelity, which excludes adultery. »

All of these breaches lead to divorce, but only damages caused by violence currently give rise to damage awards. ” Why ? If a spouse’s adultery causes depression, work stoppage, etc., why couldn’t it be compensated by damages? Why do we agree to apply the principles of civil liability for certain matrimonial breaches, but not for others? Violence is a social scourge that challenges us, but in terms of civil liability, a fault is a fault and an individual injury is an individual injury. Given the duty of fidelity imposed on the spouses, and given the contractual dimension of marriage, it is not illogical to claim that adultery constitutes not only a breach leading to divorce, but also a civil fault that can give rise to damages -interests. »

If we went there, it’s a safe bet that marriages would be even fewer, we submit.

“It can be scary, in fact, because that’s precisely what we wanted to avoid in 1985. We tried to avoid legalization and the hardening of positions, and that would deal a heavy blow to these objectives that we gave ourselves. »