Family law courts address impact of intimate partner violence in divorce cases

As the legal landscape evolves, there is growing recognition of the complex and enduring effects of intimate partner violence.

Throughout Canada, judges are being asked to address the impact of intimate partner violence in a separation and divorce. One such pivotal case is the Supreme Court of Canada’s ongoing review of Ahluwalia v. Ahluwalia. In this landmark appeal, the court was asked to determine whether a new tort of family violence should be recognized. If established, this tort would allow a former spouse to seek monetary damages for the enduring physical, financial, and psychological consequences of abuse within the family unit.

While the Supreme Court’s decision in Ahluwalia is still pending, lower courts continue to confront divorce cases involving intimate partner violence. Emerging from those decisions is a clear judicial intention to ensure the impact of family violence is fully addressed in a separation. As in Ahluwalia, courts are crafting important and meaningful remedies.

That was the case in a recent decision of the Court of Appeal for Ontario involving a couple who began living together in 2001 and married in 2003. Throughout the relationship, the husband was the primary income earner. After being employed in minimum wage jobs, the wife left the workforce altogether in 2011. The couple had a child in 2018 and separated shortly thereafter.

During an 11-day trial before Justice Andrew Pinto of the Superior Court of Justice, the wife recounted how she was physically, verbally and mentally abused by her husband. She gave evidence that her husband threatened to kill her. According to the wife, the abuse caused PTSD and situational depression, intensified her pre-existing OCD symptoms and contributed to her inability to work.

Justice Pinto accepted the wife’s evidence that the husband was abusive. According to the judge, the husband beat the wife “over the course of many years” and the wife’s “experience as a victim of family violence made it challenging for her to find employment.”

Despite that finding, the judge was critical of the wife’s failure to find a job after separation. Justice Pinto concluded the wife “languished in underemployment” and that her “complete failure to earn an income is not justified.” In the result, the judge imputed to the wife an annual income of $31,000. On that basis, the husband was not required to pay spousal support.

The wife appealed, and on Mar 13 the Court of Appeal released its important decision. The court found that the trial judge’s imputation of income to the wife was flawed, as it failed to fully consider the impact of the pattern of abuse on the wife’s ability to work. The court emphasized that Justice Pinto had not properly accounted for the consequences of family violence when making his assessment.

The decision challenges the interpretation of the federal Divorce Act. That legislation, which applies across the country to divorcing spouses, makes clear that a judge shall not take into consideration any misconduct of a spouse in relation to the marriage when making an order for spousal support. However, the Court of Appeal made an important distinction between the misconduct and its impact.

Writing for the Court of Appeal, Justices Steve A. Coroza and Lorne Sossin explained that while the trial judge acknowledged the underlying facts of family violence and their impact, he erred by failing to consider the significance of these findings when imputing income to the wife. Specifically, the trial judge “failed to grapple with the potential relevance of family violence to the wife’s ability to work.”

In support of their decision, Justices Coroza and Sossin pointed to Leskun v. Leskun, a 2006 decision of the Supreme Court of Canada, which highlights the “distinction between the emotional consequences of misconduct and the misconduct itself.” Given that important distinction, the Divorce Act cannot, and does not, operate in a way that prevents a judge from considering the consequences of a spouse’s misconduct, including violence. That must be the case since the policy of the Divorce Act is to “focus on the consequences of the spousal misconduct not the attribution of fault.”

The Court of Appeal reversed the trial judge’s decision and substituted a finding that no income should be imputed to the wife. The husband was ordered to pay spousal support to the wife in the amount of $1,453 per month for an indefinite period.

This decision marks a significant step in ensuring that family violence is properly addressed in divorce and separation. By acknowledging the long-lasting impact of abuse on a spouse’s ability to support themselves, the Court of Appeal has reinforced the principle that the consequences of family violence must be factored into the determination of spousal support. As the legal landscape continues to evolve, there is a growing recognition of the complex and enduring effects of intimate partner violence.

This article was originally published in the Financial Post.