Damages for Tort Claims Related to Domestic Violence
In a previous blog post, we reviewed the types of tort claims that may be raised in family court by survivors of domestic violence. Once liability for the torts of assault, battery, or intentional infliction of emotional distress is established in family court, a judge must determine the amount of damages.
The court will assess general damages to compensate the victim for intangible losses that cannot be precisely calculated, such as pain and suffering. When quantifying general damages, the court will consider any aggravating factors. The court in Shaw v. Shaw, 2012 ONSC 590 stated the following can be aggravating factors that increase damages:
- humiliation,
- degradation,
- violence,
- oppression,
- inability to complain,
- reckless conduct which displays a disregard of the victim, and
- post-incident conduct which aggravates the harm to the victim.
When violence is perpetrated in the context of an intimate relationship, the breach of trust inherent in that relationship should be recognized through an elevated damage award (Montgomery v. Kenwell, 2017 ONSC 3107).
Awards for general damages in past cases are somewhat uneven, making it difficult to assess what an individual could seek in family court. General damages for battery, assault, and/or intentional infliction of emotional distress range from awards as low as $7,500.00 to awards over $150,000.00. The range has trended upwards significantly in recent years.
For example, at the lower end of the range, the court awarded the wife $7,500.00 in damages for assaults on her by the husband during a four-year marriage in Rezel v. Rezel, 2007 CanLII 12716, [2007] O.J. No. 1460 (S.C.J.). The court found that there were incidents of physical violence by the husband, including slapping, kicking, and throwing a chair at the wife. Without a longer history of violence or lasting injury, the amount awarded for damages was relatively low.
In Montgomery v. Kenwell, 2017 ONSC 3107, the wife was subjected to family violence throughout the 14-year relationship. The violence included pushing, slapping, pulling hair, threats, and derogatory name-calling. The wife suffered a range of injuries, including symptoms of depression and anxiety, loss of hearing in one ear, sleep deprivation, and social problems. The court awarded general damages of $75,000.00. In its decision, the court offered a survey of past damages awards in similar cases, concluding that damages are slowly evolving in this area from nominal to more substantial amounts.
In Ahluwalia v. Ahluwalia, 2023 ONCA 476, the Court of Appeal upheld an award of $100,000.00 for compensatory and aggravated damages. The compensatory damages were awarded due to the wife’s depression and anxiety caused by the husband’s abuse. The $50,000 in aggravated damages related to the “overall pattern of coercion and control and the clear breach of trust”. The court confirmed that the amount awarded, while higher than some past cases, “reflects an emerging understanding of the evils of intimate partner violence and its harms” (paras. 126-128).
This suggests a rise in general damages over time as the courts and the public enhance their understanding of domestic violence and its effects. In the wake of the Ahluwahlia decision in 2023, there have been a few family court judgments that awarded even higher damages for assault, battery, and intentional infliction of emotional distress during a long-term intimate relationship. See Zunnurain v Chowdhury, 2024 ONSC 5552 (CanLII), where the court awarded $175,000.00 in compensatory and aggravated damages; and Barreto v. Salema, 2024 ONSC 4972 (CanLII), where the court awarded $150,000 in general, non-pecuniary and aggravated damages.
Victims can also seek special damages, if the conduct of the other party forced the victim to incur specific expenses. For example, the family court has awarded special damages for expenses to seek shelter at hotels or other living arrangements when fleeing domestic violence, or the cost of obtaining medical reports.
Family court judges have, on occasion, ordered punitive damages in addition to general or special damages. The purpose of punitive damages is not to compensate the plaintiff; instead, they are awarded to denounce egregious behaviour and deter similar conduct by others. The Court of Appeal in Ahluwalia cautioned that before awarding punitive damages, the court must determine whether the general and aggravated damages are insufficient to achieve the goals of denunciation and deterrence (see para. 132). In family law cases where punitive damages have been ordered, it is a small fraction of the total damages awarded.
It is hoped that the Supreme Court of Canada’s upcoming decision in Ahluwalia v. Ahluwalia will offer clear guidance on the amounts and types of damages to be awarded in domestic violence cases.
This blog post was written by Rachel Reid, a member of the Family Law team. Rachel can be reached at 613-566-2055 or at rachel.reidmannlawyers.com.
