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Prosecuting Civil Tort Claims In Context Of Family Proceedings Following Ahluwalia Appeal: Part Two
Courts are recognizing psychological harm caused by intimate partner violence in civil tort claims. Erika Tower & Madeleine Cleland discuss how to limit effects of trauma & myths around IPV on credibility of survivors in family law trials, in part two of their @Law360Ca series.
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.
Since the Ontario Court of Appeal decision in Ahluwalia v. Ahluwalia , 2023 ONCA 476, (Ahluwalia), in which the creation of a new tort of family violence was rejected as unnecessary because existing torts are sufficient, there has been some uncertainty about how civil claims arising from intimate partner violence (IPV) and abuse should be dealt with in the context of family law proceedings.
This is not the last word on the tort of family violence, as the Supreme Court of Canada has granted leave to appeal the Ontario Court of Appeal decision. Regardless of the final outcome in Ahluwalia, issues surrounding how to most effectively and efficiently prosecute civil tort claims in the context of family proceedings will remain a live issue.
In the recent decision of Barreto v. Salema, 2024 ONSC 4972 (Barreto), Justice Susan Vella of the Ontario Superior Court of Justice provides useful guidance and valuable insight into how these cases will be viewed and assessed by the Court, (see part one), where with respect to Barreto, we examine the factual background and preliminary considerations and framework, provide a liability analysis, and discuss damages. In part two, we offer more takeaways from this decision.
Other key takeaways
The following are other key takeaways from Justice Vella’s lengthy and comprehensive decision in Barreto:
1. The importance of expert evidence regarding harms to achieve higher general damages awards:
Although it is not necessary to lead expert evidence of a psychiatric disorder to prove psychological harm, expert evidence will make it much easier to establish a higher general damages award. Liesl Ana Barreto (the wife) called an expert psychologist to confirm her diagnosis of post-traumatic stress disorder (PTSD) because of the alleged intimate partner violence (IPV) and abuse by Savio Salema (the husband) and to provide his opinion that, in absence of other life-threatening events, this harm could only be attributable to the abusive conduct of the husband.
Justice Vella’s damages award in Barreto was $150,000, compared to the $100,000 award in Ahluwalia, which Justice Vella explains is distinguishable based on the fact that in Ahluwalia “no expert medical or psychological evidence was led to support the spouse’s claim for damages.”
2. Limitations Act defences can be overcome in the context of civil claims arising from IPV and abuse:
Claimants can rely on the discoverability principle for claims of intentional infliction of emotional distress and the exception in 16(1)(h.2) of the Limitations Act for claims relating to physical assault and battery, which states that there is no limitation period for assault claims if, at the time of the assault, the claimant and the person who committed the assault had “an intimate relationship.”
3. In order for any tort claim to be considered by the court, the torts themselves and their requisite elements must be pleaded:
Justice Vella declined to consider sexual assaults alleged by the wife at trial, as they were not referenced in her pleading. However, as the requisite elements of the torts of assault and battery were pleaded, an order was made replacing the initially pleaded non-existent tort of family violence, with the proper existing torts of assault and battery. (Barreto, para. 156)
Additional issues to consider:
Many family lawyers oppose or are critical of joining or hearing together civil tort claims for damages arising from IPV and abuse within family law proceedings. This is likely largely because the family law framework has much less arduous discovery obligations than civil proceedings and has systems in place to ensure that family law claims move forward as quickly as possible.
There is also a strong movement towards a more collaborative approach to family law claims. Civil claims, in contrast, which come with much broader documentary and oral discovery obligations imposed by the Rules of Civil Procedure, tend to move along more slowly and are often highly adversarial by nature.
In our experience so far working on cases where civil tort claims and family law issues are being joined or heard together, the advantages outweigh the disadvantages. The most significant benefit is the ability for civil damages to be paid out of the family property and assets. For example, in Barreto, Justice Vella ordered that the payment of damages would be deducted from the husband’s share of the net sale proceeds from the matrimonial home.
Typically, the biggest challenge when pursuing civil claims against individuals for torts arising out of IPV and abuse is that there is no easy way to satisfy a judgment for damages. Family court proceedings not only provide for disclosure of assets and property, something one is not entitled to in a civil court proceeding, but also a forum in which a set-off can take place to account for damages and prejudgment interest on these damages when tort claims are found to have merit.
An additional challenge to consider going forward is how to reconcile family law claims for spousal support with civil claims for income loss, as there is obvious overlap, and double recovery must be avoided. In Barreto, Justice Vella made it clear that the “income replacement component” of the wife’s claim was “adequately compensated by virtue of the spousal support claim awarded” (Barreto, para. 444).
What’s next?
Family and civil lawyers alike who act for survivors of IPV, as well as those who defend these claims, anxiously await the outcome of the appeal of Ahluwalia to the Supreme Court of Canada. Given that the Court has now set out in Barreto how to practically apply the existing torts to these cases, we expect that the Supreme Court will likely uphold the Ontario Court of Appeal’s decision to reverse the trial judge’s decision creating a new tort of family violence.
Regardless of whether the Supreme Court of Canada decides there is or is not a separate tort of family violence, lawyers and the courts need to be prepared to deal with the “epidemic” of IPV in our society. There is a need for informed discussion about the many legal issues that this problem presents, and we call for continuing legal education on the issues that bring together family and civil lawyers and judges, so these issues can be better and more efficiently and consistently navigated.
There is similarly an overlap between criminal and civil court proceedings when dealing with sexual and physical forms of abuse and harassment, which has already been extensively considered and addressed by courts and lawyers alike . Now it is time — if not overdue — for the same dialogue to take place between the family and civil bars and benches.
Authors’ notes: See part one of this two-part series for a refresher on the Ontario Court of Appeal decision ahead of next year’s Supreme Court of Canada hearing in Ahluwalia, tentatively set to be heard the week of Feb. 10, 2025.
Our civil sexual abuse and assault team frequently consults with and assists family lawyers and survivors of IPV in navigating civil tort claims arising from IPV and abuse in the context of family law proceedings. Please feel free to reach out for a consultation if you would like more information.
Contact Lerners Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today, and let us help you and your family.
Prosecuting civil tort claims in context of family proceedings following Ahluwalia appeal
Courts are recognizing psychological harm caused by intimate partner violence in civil tort claims. Erika Tower & Madeleine Cleland discuss how to limit effects of trauma & myths around IPV on credibility of survivors in family law trials, in part one of their @Law360Ca series.
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.
Since the Ontario Court of Appeal decision in Ahluwalia v. Ahluwalia , 2023 ONCA 476, (Ahluwalia), in which the creation of a new tort of family violence was rejected as unnecessary because existing torts are sufficient, there has been some uncertainty about how civil claims arising from intimate partner violence (IPV) and abuse should be dealt with in the context of family law proceedings.
This is not the last word on the tort of family violence, as the Supreme Court of Canada has granted leave to appeal the Ontario Court of Appeal decision. Regardless of the final outcome in Ahluwalia, issues surrounding how to most effectively and efficiently prosecute civil tort claims in the context of family proceedings will remain a live issue. As the Ontario Court of Appeal stated in paragraph 1 of Ahluwalia:
“Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.”
It is clear, based on the pervasiveness of IPV and the developing law in response, that we will continue to see an increase in the number of civil tort claims being pursued by survivors of IPV, particularly once the relationship ends and family law proceedings are initiated.
In the recent decision of Barreto v. Salema, 2024 ONSC 4972 (Barreto), Justice Susan Vella of the Ontario Superior Court of Justice provides useful guidance on how these cases should be approached and valuable insight into how they will be viewed and assessed by the court.
Factual background in Barreto
Liesl Ana Barreto (the wife) and Savio Salema (the husband) were married in 2003 and separated in 2020, with no children of the marriage. A nine-day hybrid trial of the family law and tort matters proceeded before Justice Vella in January and February 2024. The family law issues to be decided included divorce, spousal support, and disposition of the matrimonial home. Also at issue were tort claims raised by the wife, which included intentional infliction of emotional distress, breach of public disclosure of private facts and confidence, and assault and battery.
The term “gaslighting” was used by the wife to describe the husband’s pattern of behaviour, which included secretly communicating to her family in India that she was violent, abusive, mentally ill, and suicidal. The husband also had a pattern of telling the wife that she was the one who abused him, and that he used force against her only to protect himself from her physical abuse of him and to stop her from self-harming. Justice Vella adopted the “gaslighting” terminology as a descriptive term only.
Preliminary considerations and framework
In setting out the framework for her decision, Justice Vella confirmed, as in Ahluwalia, that where family and civil proceedings are heard together, the trial judge should start with a determination of the financial claims arising from the marriage, specifically beginning with any of those arising from statute, before assessing damages for the tort claims. This sequence considers that statutory entitlements may inform the damages arising from the IPV-related tort damages assessment.
Justice Vella accordingly began by considering the family law claims raised by both the wife and the husband, the findings of which are largely irrelevant to the purpose of this article. Turning next to the civil claims, Justice Vella first provided guidance on how to approach credibility assessments in claims involving IPV and then addressed a number of dangerous myths about IPV that must be dispelled.
Regarding the credibility assessment, Justice Vella adopted “the framework outlined in Faryna v. Chorny, [1952] 2 D.L.R. 354 ... and developed in subsequent cases, recognizing that trauma can impact one’s ability to recount the traumatic incidents” (Barreto, para. 161). Justice Vella also highlighted the importance of corroborating evidence from witnesses and contemporaneous documentary evidence.
The myths about IPV that Justice Vella said must be dispelled include:
1. the partner did not leave the relationship until now and, therefore, there was no abuse or mistreatment;
2. the partner must have consented to the offensive treatment because she/he/they did not leave the intimate relationship;
3. the partner did not complain to anyone in authority, his/her/their family, or others of the offensive treatment or abuse and, therefore, it did not happen; and
4. the partner did not behave in a certain manner in response to the alleged abuse or mistreatment and therefore cannot be believed. (Barreto, para. 166)
Liability analysis
With these considerations in mind, Justice Vella assessed the evidence presented by both sides and found the wife’s version of events to be more believable than the husband’s. The wife called witnesses who corroborated her version of events (family members, friends, therapist) and produced contemporaneous documentary evidence to support her claims (texts, emails, etc.).
The trial judge did not find the husband to be a credible or believable witness — his versions of events were vague and inconsistent. The trial judge also drew an adverse inference against the husband because he failed to call numerous witnesses whom he claimed supported his version of events and his defence of the wife’s claims.
Ultimately, Justice Vella found that the wife satisfied the elements of the tort of assault, battery, and intentional infliction of emotional distress. However, her claim for public disclosure of private facts was dismissed because the allegations under this tort were better addressed by intentional infliction of emotional distress.
Damages
Justice Vella began her damages assessment by reviewing the function of general and aggravated damages and the factors to be considered in determining the appropriate quantum. (Barreto, paras. 432–434)
It is acknowledged that damages arising from claims of IPV have been historically low, but “the courts’ recognition of the insidious harms by IPV is evolving much like it did with respect to civil sexual assault claims, which were originally very modest but have evolved considerably” (Barreto, paras. 436–437). Accordingly, Justice Vella stated that reference to civil sexual assault damages awards is helpful as a guide because in both types of cases, “the dominant harms experienced generally tend to be psychological and accompanied by a betrayal of trust” (Barreto, para. 440).
Justice Vella cited the range of non-pecuniary/general damages for adult-on-adult sexual assault set out in Zando v. Ali, 2018 ONCA 680 of $144,000 to $290,000 in 2017 dollars, “which provides a useful general framework for how to assess psychological impacts committed within a betrayal of trust.” (Barreto, paras. 440–441) With inflation adjusted for 2024 dollars, the range is $177,357.80 to $357,178.90.
Applying this range to the case at bar, Justice Vella concluded the appropriate general damages award in the case before her was $150,000, $50,000 of which she attributed to aggravated damages in recognizing the “pattern of psychological manipulation perpetrated over a lengthy time by a spouse resulting in a profound betrayal of trust” (Barreto, para. 448).
Also of note is the finding that, although the wife admitted to abuse by her mother in childhood, the wife “showed her resilience to any adverse impacts that mistreatment may have had by excelling in university and her job as a psychologist prior to her marriage” (Barreto, para. 429). In terms of damages causation, Justice Vella found that the harms established by the wife were solely the result of the husband’s abusive conduct.
A punitive damages award was made against the husband in the amount of $10,000, having regard to “the compensation awarded, the reprehensible nature of the misconduct perpetrated, the prevalence of IPV […], the lack of remorse, and the means of Mr. Salema” (Barreto, para. 452). Notably, this award for punitive damages incorporates the principle of deterrence by accounting for the “prevalence of IPV” in general.
We note that in Zunnurain v. Chowdhury, 2024 ONSC 5552, another decision involving civil tort claims in the context of family law proceedings that was released shortly after Barreto, Justice Ranjan Agarwal awarded $200,000 in damages to the wife for assault, battery, and intentional infliction of mental suffering, $175,000 of which was for compensatory and aggravated damages and $25,000 for punitive damages. This award is in line with Justice Vella’s comments about the appropriate range of damages in these cases.
This is part one of a two-part series. Part two will discuss other key takeaways of Barreto v. Salema.
Contact Lerners Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today, and let us help you and your family.