Learn How to Claim Damages in a Family Law Proceeding

Woman who can Claim Damages from ex for assault

If you have been hit by your spouse you can ask the court to order that your spouse pay you damages out of the equalization of matrimonial property or that it be paid on a monthly basis and enforced by FRO.

What are Assault and Battery?

An assault is different from a battery. Assault is a fear of being hit. The battery is actually being hit. In either case, you can claim “damages” against your abuser to compensate you. However, the number of damages you can claim for an assault will likely be significantly less than those that you can recover for a battery. The battery is easier to prove than an assault as you will likely have medical evidence to show the court that you were in fact injured and you will likely have evidence of police laying charges.

Can You Claim Damages for Mental Suffering In Family Law?

If an assault or battery has occurred, then the court must assess the number of damages to award to you. If the abuser’s conduct was particularly humiliating to you, oppressive, malicious, degrading, causing you increased suffering during and after the incident, then the damage award will be higher. You should keep all receipts for any costs associated with the injury.  If you had to go to a hotel to escape the abuse, take taxies, pay for parking at medical buildings, pay for medical reports, all of these costs can be reimbursed to you.

What are the Costs of Spousal Abuse and Damages?

The quantum of damages awarded in spousal abuse cases varies depending on the facts. In Montgomery v Kenwell, a 2017 decision of the Ontario Superior Court of Justice, Barrie, Ontario, the wife was awarded $75,000. The criminal law has statutorily recognized the concept of breach of marital trust, in s. 718.2 of the Criminal Code of Canada, by requiring the sentencing judge to consider an increase in a sentence where, as an aggravating circumstance, the offender abused his spouse or common-law partner when committing the offence. The family court judge stated in the Montgomery case that the trust inherent in a domestic relationship, when breached by one partner deliberately harming the other, should be likewise recognized in family law through an elevated aggravated damage award.

You do not need to wait for criminal court proceedings to be determined before bringing an Application in family court seeking damages against your abuser for injuries you sustained.  Even if your abuser is found not guilty in criminal court where the onus of proof is beyond a reasonable doubt, you still may succeed on your claim for damages in a family law application where the onus of proof is on a balance of probabilities. It appears that the courts are now beginning to recognize in family law that domestic violence should keep step with criminal law in imposing sanctions that contribute to a “just, peaceful, and safe society”.

We Can Help You Claim Damages

Are you a victim of spousal abuse or mental suffering? Depending on the uniqueness of your case you could claim damages in a family law proceeding. The first step is booking a consultation with Lynn Kirwin, she will help discuss strategies moving forward and offer you choices.

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Lynn Kirwin

Lynn Kirwin has been practicing law for 28 years. She specializes in high conflict family law cases with a focus on resolving them in an expedient and results-oriented manner. She believes in saving the client costs. She offers the option of limited scope retainers. As well, coaches many clients through the process of family court including assisting them with self-representation at trial. Her wide breadth of knowledge has lead her to have published several books on family law as well as other areas of law. She has expertise in child abuse cases having worked as in-house counsel at a Children’s Aid Society and having represented parents in court on child protection cases. She also is a panel member for the Office of the Children’s Lawyer, providing representation for children in court. She volunteers her time as the Chair of a Board for a women’s shelter and as President of the Orillia Law Association. She has two daughters who attend university. She enjoys spending her free time travelling with her husband, road cycling and taking long walks with her two beagles.

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