• Charles Baker

Can a Spouse Sue His or Her Spouse in Tort?

Tort actions for spousal violence have become more commonplace in Canada during the past 30 years, at least in part because of increased public awareness and universal condemnation of such behaviour. But given the continuing prevalence of domestic violence in the community, only a tiny fraction of potential tort claims are ever advanced: a.      Many litigants may be unaware the tort option exists.  b.      Some lawyers and clients may be reluctant to pursue such a claim fearing it will aggravate an already difficult situation.  c.      Family finances are often so limited there is little point in adding yet another potential monetary claim to the mix.  d.      There may even be systemic discouragement.  Over the years the family court system has worked hard to get away from blame and recrimination – by discouraging “inflammatory” affidavits in favour of case management; by telling conflicted parents to focus more on the future than the past; and by promoting conciliation and collaborative dispute resolution. This is by no means a bad thing. During family law proceedings, spouses may claim damages for tortious behaviour that took place during the relationship. Indeed, it is preferable that all potential claims arising from the breakdown of a relationship, including tort claims, be dealt with at the same time. A consolidated action has the advantage of saving litigation costs and court time; ensuring consistency in the outcomes; and allowing a tort judgment to be factored into the overall financial result.

However, the conduct in question must rise to the level of tort and may not simply be evidence of a dysfunctional relationship. Tort claims based on physical violence perpetrated by a spouse will almost invariably include a mental health or “emotional impact” component. Claims based solely on “intentional infliction of mental suffering” have been less prevalent – and less successful – perhaps a reflection that mental suffering is hardly a unique circumstance among separating spouses.

The short answer, then, is that if there were no physical injuries associated with the tort, it is probably not worth pursuing. Further, even if there were physical injuries, but they were not objectively serious or isolated, it is still probably not worth pursuing. When damages are awarded, which is more the exception than the rule, they are modest, and often not worth the costs and its interference with resolution of the other issues. In other words, if one wishes to pursue a tort, as part of his or her family case, it should be serious; the moving party should have the finances to litigate it; and he or she had better hope the spouse has the money to pay any award.

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