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Trial judge did not err in allowing a tort claim in a family court proceeding;
- Trial judge erred in the creation of a new tort — the torts of battery, assault, and intentional infliction of emotional distress were sufficient to capture the pattern of behaviour which defined the proposed new tort of family violence;
- On appeal, “coercive control” was proposed as a new tort. This was also rejected for similar reasons; and
- $150,000 in damages was awarded at trial (equally divided between compensatory, aggravated, and punitive). Punitive damages were overturned; there was no analysis as to why the other two heads of damages were insufficient, such that punitive damages were warranted.
I don’t think the result is surprising. Justice Benotto speaking for the majority of the Ontario Court of Appeals closes the decision with this statement, helpful if dealing with tort claims in family proceeding:
[140] “I recognize that a tort claim differs from a claim in equity. A claim in equity may go to asset ownership. But the principle of first determining statutory entitlements, including equalization and corollary relief under the Divorce Act, is sound. Child support is a right of the child and cannot be set aside for later. A compensatory support award under the Divorce Act may impact the quantum of damages. If the abuse allegation involves financial abuse, there may be an order for unequal division of net family property.”
[141] “In my view, the court should complete the statutory claims before assessing liability and damages for tort claims.”
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