A judge in Canada has caused controversy by awarding a large financial sum to a wife subjected to systemic family violence by a husband. The sum is different to any adjustment in a property settlement based on the fact that violence has affected a party’s ability to make contributions. Such adjustments are a remedy already available both in Canada and Australia (here, when claims are successfully made under the “Kennon rule”). However, those adjustments are typically quite small, such as a 5% adjustment in a victim’s favour. By contrast, in this case, the damages award was in the sum of $150,000, representing half the value of the marital home.
[Should family courts award damages for family violence in property settlements? Continued]
In the Canadian case:
“[The Canadian judge] ordered the ex-husband in the case, A.A., to pay his ex-wife…$150,000 for a 16-year pattern of physical abuse, coercion and control. That amount is separate from support payments ordered based on the family’s financial situation.”
Canada has the same no-fault divorce system as Australia does. This means that spousal misconduct is not supposed to be considered in property settlements or spousal support claims. The Ontario judge is therefore argued to have “created a new legal claim of ‘family violence’ in divorce cases”, which is believed to be likely to open the floodgates to similar claims.
As family violence has become more of a salient topic in our society in recent decades, courts around the world have struggled to work out how to factor it into property and parenting cases. In Australia, keeping up with social change has meant that family violence has been incorporated into the Family Law Act 1975 with amendments relating to parenting issues. When family violence is accepted by the Judge, the presumption of equal shared parental responsibility can be rebutted. However, it’s still rare for property settlements to be adjusted due to allegations of family violence.
Paving the way
Before a historic decision in 1997, Kennon & Kennon, Australian courts were reluctant to factor family violence into a property settlement. But in Kennon & Kennon the argument was successfully made that family violence perpetrated by one party had a “significant adverse impact” on the other party’s contributions, making them more “arduous” and justifying an adjustment. It was the first major decision of the Full Court where violence was regarded as being relevant to property proceedings.
In reality, it has been quite hard to succeed with a “Kennon argument”. That’s because it’s quite hard to prove not only the occurrence of the alleged incidents of family violence, but the effect and also, crucially, how the courts can quantify the effect the violence had on a party’s capacity to make contributions in a marriage. There is a key need to satisfy the court of a causal link between the violence and the victim’s contributions being affected.
Spouses who have suffered abuse can make claims in criminal courts but have typically not been able to do so via the family courts. This necessitates separate court action which can be difficult for victims. Further, civil awards for intimate partner assault tend to be small.
The Ontario judge’s decisions being hailed as ground-breaking, being the “first time a Canadian court has recognised the civil wrong, or tort, of family violence.”
Critics fear that unscrupulous claims will be made, and point to the danger of fundamentally changing the no-fault divorce system. However, the Canadian judge says such damages awards should only be made in “unusual” cases and that it would only be used in cases where there is a pattern of systemic abuse, not an individual incident of family violence. Here, the Kennon argument only applies to “exceptional” cases and courts are mindful that it mustn’t be used for tactical or strategic reasons.
So should family violence be better compensated in property settlements? As family courts focus increasingly on the damage—both physical and psychological—caused by family violence, this may be the way of the future. Family violence has been shown to create economic barriers for victims, affecting their career and ability to move forward in their life. This could validate the argument that extra financial assistance, such as substantial damages awards, is necessary for victims of abuse.
Source: The Globe and Mail
For assistance with a property settlement or other family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.