Marriage and domestic violence Civil liability interferes with family law

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

Published on March 28th

Louise Leduc

Louise Leduc
The press

No, the term “no fault divorce” does not cover everything. But the line between behavior that is part of the classic marital tear and the excesses to be punished can be hard 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 compensation for the 16 years of physical abuse, coercion and control he subjected his family to. Among other things, the man who left his wife and children in 2016 continued to be the only one in control of their bank accounts, leaving his family in distress as he left.

In divorce case, one avoids finding a culprit or apportioning guilt, but that 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,” the judge insists.

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

In the media in English Canada, it was seen as a new way of acknowledging the injustices committed against victims of domestic violence.

Also in Quebec

In Quebec, in our civil justice system, law professors are Mand Dominique Goubau and M.and Alain Roy notes that although it is not uncommon, such damages are awarded in divorce judgments at repeated intervals.

Until 1985, divorce sanctioned the person responsible for the failed marriage, M. recalls.and Dominique Goubau, law professor at Laval University. “Infidelity or violence was marital error, which could have financial or material consequences in the course of the settlement of the divorce, or even in the custody of the children.”


PHOTO FROM LAVAL UNIVERSITY WEBSITE

Mand Dominique Goubau, Professor of Law

In 1985 became Divorce Act has done away with the concept of guilt and replaced it with the notion of the breakdown of marriage. The Ontario ruling “is not a way to reintroduce the concept of guilt to one or the other of the spouses,” Dominique Goubau clarifies.

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

In addition to overt physical violence

Étienne Bernier reviewed the case law on civil liability in families as part of her master’s thesis in law.

As early as 1982, he recalls, a judge had awarded $ 42,000 to a victim in his divorce settlement. A miserable affair, a stabbing.

“When the facts are so serious, the judges do not hesitate,” said Mr Bernier, who identified about thirty convictions in which compensation of up to $ 290,000 was awarded for physical violence.

Judges have also begun sanctioning parental alienation and the spread of intimate images on the internet – called ‘revenge porn’. It is not a heavy trend, but civil liability is really starting to interfere in family law. »

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


PHOTO MARCO CAMPANOZZI, PRESS ARCHIVE

Etienne Bernier

Judges in family law – as in labor law – are becoming more sensitive to psychological violence, but it must be very obvious, points out Mr Bernier, who leads us to certain excerpts of revealing judgments.

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

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

“It is the very essence of relationships that they begin and unfortunately sometimes end. “Apart from very specific situations, bad relationships and marital blame in connection with normal life do not constitute errors that can lead to responsibility”, Judge Richard P. Daoust remarked in 2009.

Compensation in case of infidelity?

For his part, M.and Alain Roy, author of the report of the Advisory Committee on Family Law, wonders whether judges in this movement will not skip even more over family law and will not one day go so far as to 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 that precludes physical cruelty and mental cruelty, but they are also bound by a duty of fidelity that precludes infidelity. »


PHOTO HUGO-SEBASTIEN AUBERT, LA PRESSE ARKIV

Mand Alain Roy, Professor of Law

All of these breaches lead to divorce, but only damages caused by violence currently give rise to compensation. “Why? If a spouse’s infidelity causes depression, work stoppage, etc., then why could it not be compensated with compensation? Why do we agree to apply the principles of civil liability for certain marital offenses but not for others? Violence is a social nuisance that challenges us, but in relation to civil liability, a fault is a fault and an individual damage is an individual damage. that infidelity not only constitutes a default leading to divorce but also a civil guilt which may give rise to compensatory interests. ”

If we went there, it is certain that the marriages would be even fewer, we say.

“It can actually be scary, because that was exactly what we wanted to avoid in 1985. We were trying to avoid legalizing and sharpening attitudes, and that would be a hard blow to the goals we set for ourselves.”

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