DOMESTIC AND FAMILY VIOLENCE

DOMESTIC AND FAMILY VIOLENCE IN FAMILY LAW LITIGATION

Since 2022, several legislative amendments have been introduced to better regulate domestic and family violence and strengthen the protection afforded to victims. The Government of Quebec defines domestic violence as including psychological, verbal, physical and sexual abuse, as well as acts of economic domination. Domestic violence does not result from a loss of control; rather, it is a deliberate means of dominating another person and asserting power over them.

Domestic violence occurs between intimate partners, whether they are married, in a civil union, living in a de facto relationship or simply dating. Violence may occur during the relationship or after it ends, in which case it is referred to as post-separation violence. Domestic violence can take many forms. With technological developments, case law has also recognized that violence may be perpetrated through technology.

The Divorce Act, in subsection 2(1), provides a broader definition of family violence. This includes any conduct by a family member toward another family member that is violent, threatening, coercive or controlling, or that causes the other family member to fear for their safety or the safety of another person, whether or not the conduct constitutes a criminal offence.

Family violence also includes a child's direct or indirect exposure to such conduct. Examples include:

a) Physical abuse, including forced confinement, excluding the use of reasonable force to protect oneself or another person;

b) Sexual abuse;

c) Threats to kill or cause bodily harm;

d) Harassment, including stalking;

e) Failure to provide the necessities of life;

f) Psychological abuse;

g) Financial abuse;

h) Threats to kill or harm an animal or damage property;

i) Killing or harming an animal or damaging property.

Family violence therefore also encompasses violence by parents against children, violence by children against their parents, and violence between children.

The Impact of Domestic Violence on Children

Children are subject to their parents' parental authority. Although parental authority confers various rights and responsibilities, article 599 of the Civil Code of Québec, amended in 2022, specifies that parental authority must be exercised without any violence.

Children may be considered victims of domestic violence when they are directly or indirectly exposed to violence experienced by one of their parents.

For this reason, the Youth Protection Act was amended in 2022 to add paragraph 38(c.1), recognizing exposure to domestic violence as a potential ground for finding that a child's security or development is in danger.

This includes situations in which a child directly witnesses violence or lives in an atmosphere of fear or tension, including after separation, where such exposure is likely to cause harm.

Domestic violence may therefore affect parenting time, custody arrangements and access rights involving the violent parent.

In certain circumstances, it may also result in the deprivation of parental authority. This means that the parent loses the right to exercise parental authority over the child and can no longer participate in decisions concerning the child's care, education and supervision.

Furthermore, article 33 of the Civil Code of Québec establishes that decisions concerning children must be made in their best interests. In making this assessment, courts must consider, among other factors, the presence of family, domestic or sexual violence.

Compensatory and Punitive Damages

Victims of domestic violence may claim damages to compensate for the harm caused by their abusive partner.

To facilitate such claims, courts allow claims for damages to be included in divorce proceedings involving married spouses, proceedings for the dissolution of a civil union, or proceedings between de facto spouses.

Victims may claim compensation for financial losses, including:

• Loss of income resulting from the violence;

• Medical and expert expenses;

• Costs incurred to replace property destroyed by the abusive partner.

Victims may also claim compensation for non-pecuniary damages, including pain and suffering, disfigurement and loss of enjoyment of life. The objective is to compensate victims for the physical, psychological and material harm they have suffered.

Under the Charter of Human Rights and Freedoms, victims may also seek punitive damages where an unlawful and intentional infringement of a right or freedom protected by the Charter has been established, including the rights to integrity, security, life and dignity.

The primary purpose of punitive damages is to deter the offender from repeating the same behaviour toward another person and to discourage similar conduct more broadly.

If a claim for damages has not been included in the family law proceedings, the victim may still have the possibility of pursuing a separate claim.

Other Possible Sanctions

Amendments to the Code of Civil Procedure reflect the legislature's intention to strengthen the protection of victims of domestic violence.

Section 51.1 provides that, in family matters, courts must assess abuse of process by considering, among other factors, the history of proceedings involving the parties, the impact of repeated and contentious litigation on the other party and, where applicable, the child, as well as any imbalance of power, particularly where family violence, including domestic violence, is present.

When an abusive partner uses legal proceedings as a means of continuing domestic violence, the court may impose various sanctions.

These may include dismissing the abusive party's application, ordering the abusive party to pay the victim's legal fees, or awarding damages under sections 53 and 54 of the Code of Civil Procedure.

Key Takeaways

1. Recent legislative amendments have made it easier for victims of domestic and family violence to seek compensation for harm suffered in the context of family law litigation.

2. A parent who has been violent toward the other parent may lose custody of their child, even if they have never directly abused the child.

3. An abusive partner may also be ordered to pay substantial compensation to the victim. According to the figures cited in the original article, Quebec courts have awarded damages exceeding $199,000, while awards elsewhere in Canada have exceeded $795,000 !.

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