Our day in court

Almost exactly a year ago, I wrote here about a groundbreaking family court decision, in which Justice Mandhane of the Ontario Superior Court of Justice recognized a new family law tort of family violence and awarded the wife in the case $150,000 in damages for the pattern of coercive controlling abuse, interspersed with occasional physical violence, to which she had been subjected by her husband. The carefully written and well analyzed decision reflected what many of us hoped the relatively new family violence provisions in the Divorce Act would lead to: a nuanced understanding of family violence and its long-term impact on survivors.

Justice Mandhane recognized that she was pushing the envelope in her decision, writing that it was “well outside the normal boundaries of family law.” Those of us who work with survivors celebrated her courage.

Not surprisingly, the husband in the case decided to appeal the decision. Fortunately, the mother – who had been unrepresented at trial – was able to find lawyers to represent her for the appeal. Two feminist organizations – Luke’s Place, where I am the Advocacy Director, and the Barbra Schlifer Commemorative Clinic – made the decision to jointly intervene in the appeal to raise public interest issues related to women’s equality and gender-based violence in the family.

How an intervention works

The first step in this process was to ask for permission (otherwise known as seeking leave to intervene), which we were granted. As intervenors, our role was not to take one side or the other – although, obviously, our interests aligned more with the wife’s than with the husband’s – but to raise issues of public interest.

Our organizations each retained lawyers with family and civil law expertise to represent us: Frankie Wood, Kirsten Mercer, Archana Medhekar, Anna Matas and Samantha Eisen. In effect, Luke’s Place and the Schlifer Clinic were the clients of these wonderful and dedicated lawyers, who did all their work on a pro bono basis.  Without their expertise and skills offered to us at no cost, our intervention would not have been possible, and we thank them from the bottom of our hearts.

This meant there were a lot of lawyer heads involved: five lawyers representing our two organizations, and two lawyers on each of the organization’s staff teams. Sometimes, that felt like a few too many lawyers, as we all have strong opinions that we are happy to voice assertively but, ultimately, it meant our case was thoroughly thought through and our materials were well prepared and exhaustively reviewed.

The Court of Appeal sets strict limits on the length of written documents. In our case, our two organizations together had only 15 pages and 15 minutes to persuade the judges of the merits of our position. Meeting these limits was a big challenge for us: we had a lot we wanted to share with the court.

Our case

The arguments we presented when the Court of Appeal heard the husband’s appeal on March 23^rd were based on our expertise gained through long histories of working with survivors of intimate partner violence, many of whom engage with the family law system. We identified the need for a distinct tort of family violence to recognize that family violence, including coercive control, is a pattern of behaviour and not a series of single discrete incidents or, in the words of our factum “the inter-operativity of these forms of wrongdoing.”

Only such a tort, we argued, could begin to adequately address the complex and long-lasting impacts on a survivor, many of which affect her ability to move ahead meaningfully to the next phase of her and her children’s lives:

“The harms experienced by survivors of FV cannot be addressed through a patchwork of established torts which fail to address (and thus cannot adequately remedy) the prolonged and compounding systemic abuse within a relationship of trust and confidence.”

We  also made arguments to support the awarding of damages once a tort of FV had been established:

“Due to the cyclical and systemic nature of FV, in many cases FV compounds the harms suffered by survivors over several years of discrete incidents of violence. Damage awards for discrete torts need to adequately compensate survivors for the complex, compounding and systemic nature of the true harm of FV: a cycle that strips survivors of their autonomy and dignity, and submits them to domination by the perpetrator . . . .

“. . . the law should help (not hinder) those who want to seek redress in an effort to repair the harm they have suffered and sanction this anti-social conduct through significant damages awards. Damages for the tort of FV would also help survivors to secure a place of safety for themselves and their children, to re-establish their lives and to begin rebuilding all that was taken from them. This holistic approach allows judges to fully capture the damages and harms before them. . . “

And now we wait, with the hope that the Court of Appeal will uphold Justice Mandhane’s decision, which read, in part:

“this is one of those rare circumstances where the common law should recognize a new foundation for liability for family violence.”