Making new law

I don’t often read a family court decision that makes me jump for joy, but a recent decision by Justice Renu Mandhane of the Ontario Superior Court of Justice did just that.

In this case, Justice Mandhane recognizes a new tort of family violence and awards the wife $150,000 in damages for the pattern of physical and coercive controlling abuse she was subjected to by her husband over their 16-year marriage. As far as I know, this is the first time this has happened in Canada, and it opens an important door for survivors of intimate partner violence (IPV).

The decision is noteworthy in many ways, but let’s start with a brief explanation about the law itself.

What’s law got to do with it?

Tort is the legal term for an act committed by one person that causes harm to another. Assault and battery are two examples of torts. Acts intended to cause emotional distress are also torts. Civil law, as I wrote here a few weeks ago, is the avenue through which someone who has been harmed by the tortious actions of another can sue for damages.

Family law, of course, is the law used by people who are ending their relationships to resolve any issues on which they do not agree: parenting arrangements for children, child and spousal support, division of property and, in cases involving  IPV, restraining orders and orders for exclusive possession of the matrimonial home.

What Justice Mandhane has done in this case is to bring tort law into a family law case, thus saving the wife from having to bring a separate court case to make a claim for damages. This is important because few women have the financial or emotional resources to pursue a civil claim for damages after managing to get through a lengthy and difficult family law case:

“Allowing a family law litigant to pursue damages for family violence is a matter of access to justice. It is unrealistic to expect a survivor to file both family and civil claims to receive different forms of financial relief after the end of a violent relationship.” (emphasis added)

For IPV survivors, the possibility of receiving a damages award as part of their family law case is a life-changer; it will give legal validation to what has been done to them; hold the abuser accountable for his actions, and, not least of all, put some money in their pockets so they can move on with their lives.

Seeing the pattern

One of the most important elements of Justice Mandhane’s decision is her recognition – consistent with the definition of family violence in both the federal Divorce Act and Ontario’s Children’s Law Reform Act — that family violence is a pattern of behaviour, not just a series of random and discrete individual incidents.

Too often, in both criminal and family court proceedings, the unique toxicity of and harm caused by a relationship riddled with ongoing abuse of various kinds is not understood because of a focus on individual incidents.

When those incidents are not strung together into a pattern, the insidiousness of family violence is made invisible, as is the long-term impact of that abuse.

Justice Mandhane carefully details the history of coercive control exerted by the father over the mother, as well as three specific episodes of physical violence, finding that the marriage was “not just ‘unhappy’ or ‘dysfunctional;’ it was violent,” and requires an outcome that reflects that:

“[E]xisting torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lies at the heart of family violence cases and which creates the conditions of fear and helplessness.”

The decision moves away from what she calls “a surgical focus on the mechanical elements of the physical assaults:”

“In family relationships, the conditions of terror, fear, coercion and control are often created through years of psychological abuse punctuated with relatively few acts of serious physical violence. In practice, a perpetrator need only administer one hard beating at the beginning of a marriage to create an imminent threat of daily violence.”

No fault?

Canada’s divorce and family laws are based largely on the principle of no fault. People can get a divorce without having to prove that their spouse did something wrong. The amount of spousal support to be paid and how property is to be divided up does not include a consideration of bad behaviour. Even decisions about parenting are not allowed to reflect past conduct, unless it is conduct that would be harmful to the children.

There are good reasons for this, but the no-fault concept can give an easy out to an abuser. This decision challenges the notion of no fault in cases involving long-term, entrenched abuse:

“In unusual cases like this one, where there is a long-term pattern of violence, coercion and control, only an award in tort can properly compensate for the true harms and financial barriers associated with family violence. The no-fault nature of family law must give way where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support.” (emphasis added.)

Debunking myths

Justice Mandhane’s decision acknowledges the dangers in judicial speculation about “the proper comportment and behaviour of survivors;” in particular, about why a survivor “would stay in an abusive relationship or fail to complain to the police,” when assessing a survivor’s credibility.

Women have had to battle these myths for years. There are many good reasons to remain with an abusive partner. For some women, staying is the safest option, as the abuse follows a pattern they can manage. When they leave, the abuse continues and escalates: the time of separation is when a woman is at the greatest risk of being killed by her partner. For others, often because of a lack of systemic supports, staying is the only option.

Likewise, there are good reasons for not calling the police, as the response may serve only to escalate the abuse.

Justice Mandhane acknowledges that her decision is “well outside the normal boundaries of family law.” She may be right, but this is exactly the kind of judicial creativity and courage needed if family law is to offer meaningful access to justice for survivors of IPV and their children.

Kudos to Justice Mandhane – and may many judges follow in her footsteps.