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Damages for Assault in the Context of Divorce

Melody Roger

Montgomery v Kenwell, 2017 ONSC 3107 is a very interesting decision by Healy J. of the Ontario Supreme Court. Among other issues, it deals with the wife’s application for an award of damages from the husband in relation to the domestic violence she suffered during the relationship.

The circumstances of this case are very sad. The parties were together for a total of 14 year and married for 10. They had two children, aged 19 and 15. The parties’ 15 year old son had suffered a serious brain injury while riding an ATV and would likely require care for the rest of his lifetime. The wife had been providing such care with no assistance from the husband. The husband had subjected the wife and daughter to serious domestic violence during the marriage. The husband had been criminally convicted four times during the marriage, two of which were for assaulting the wife and two of which were for threatening the wife or damaging her property.

The wife brought an application for child support, spousal support, a permanent restraining order and damages for assault and battery by the husband during the marriage.

The first issue Healey J. dealt with was the husband’s lack of financial disclosure. The husband’s pleadings were struck for lack of financial disclosure, making the trial “uncontested.” The wife put forward evidence of what income should be imputed to the husband. Healey J. described the husband’s disclosure as “scant” and “wholly inadequate.” Further, the husband was employed by his father and received numerous benefits through his employment (such as rent-free accommodation, a free vehicle and other personal expenses) which added to his income for the purposes of determining child support. Healey J. agreed with the wife’s estimation that the husband earned $80,000 per year. In this writer’s estimation, the father was rather fortunate in this regard as there was evidence that could have led to a much higher estimation of the father’s income. A retroactive and ongoing child support order was issued.

At the time of trial, the wife had decided not to pursue an award of spousal support. Nonetheless, Healey J. found that justice would not be done if he were not to grant an award of spousal support given the wife’s “ample” entitlement and the husband’s non-disclosure. He ordered the husband to pay $1.00 per month in spousal support and noted that the award could be varied in the future pursuant to s.17 of the Divorce Act.

Next, Healey J. described his reasons for granting the wife’s application a permanent restraining order against the husband. Suffice it to say that the children and the wife gave evidence that more than met the test for a restraining order in the Ontario Family Law Act based on the husband’s conduct.

Lastly, Healey J. dealt with the issues of damages for domestic assault. As part of his reasons, Healey J. noted that aggravated damages are intended to compensate the personal suffering of the victim and a particularly egregious factor which was relevant in this case was the “flagrant breach of trust that is central to a marital relationship” (para.35.) Healey J. stated that the “trust inherent in a domestic relationship, when breached by one partner deliberately harming the other, should be likewise recognized in tort law through an elevated aggravated damage award. There is no reason why the civil law should not keep step with the criminal law in imposing sanctions that contribute to a ‘just, peaceful and safe society’… “ (para.35.) Healey J. found that the wife’s “pain and suffering, past and ongoing, caused directly by the [husband’s] treatment is in and of itself deserving of a significant award of damages.” (para.37) Damages of $75,000 were awarded to the wife.

Finally, the wife was awarded costs. Healey J. noted that the wife had had to make very difficult decisions in the course of the litigation, including abandoning her claim to the equalization of the parties’ matrimonial property, in order to bring the matter to a close. As she was successful in all of her claims, she was awarded costs in the amount of $45,664 on a “full indemnity” basis.

Attached as Schedule “A” to the case is a chart of cases where damages were award by the court for inter-spousal assault which was provided by counsel for the wife. This chart (and case) will no doubt be helpful to counsel hoping to advance such a claim on behalf of their clients.

2018-08-08T09:24:40-06:00August 14th, 2018|

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