Can You Be Awarded Damages in Family Law?

There are times when the conduct of an ex-partner or spouse may be so egregious that simply receiving a divorce or support payments is not enough to rectify the damage done. This type of situation was contemplated in Alberta recently in the case of LDS v SCA, 2021 ABQB 818 (“LDS”).

In LDS, the parties dated between 2011 and 2014, but never married. They had one child together.

The girlfriend alleged that the relationship was abusive. When she left the relationship, she commenced Family Law proceedings seeking child and partner support. She was successful in obtaining a restraining order against her ex-boyfriend.

During the relationship, the girlfriend had provided intimate photos to the boyfriend. While she consented to taking these photos, she never consented to them being distributed to anyone else.

In 2015, the boyfriend hacked onto the girlfriend’s Facebook account, changed her password, and posted the intimate photos without her consent. He also hacked into her email account and sent the photos to the girlfriend’s new boyfriend.

The ex-boyfriend was charged with Mischief contrary to section 430(1) of the Criminal Code and pled guilty.

In the Spring of 2016, the girlfriend discovered that the boyfriend had spread these intimate photos even further, including on a pornographic website and Tumblr.

The girlfriend then sought damages for the revenge porn. It was established in the case of ES v Shillington, 2021 ABQB 739 that the tort of Public Disclosure of Private Facts exists in Alberta and will be established where the following is proven:

1. the defendant publicized an aspect of the plaintiff’s private life;
2. the plaintiff did not consent to the publication;
3. the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff; and
4. the publication was not of legitimate concern to the public.

Similarly, the tort of Breach of Confidence exists in Alberta and will be established where the following is proven:

1. The information conveyed was confidential;
2. The information was communicated in confidence; and
3. The information was misused by the party to whom it was communicated.

Further, as was established in Hutton v Canadian Broadcasting Corporation, 1992 ABCA 39, the tort of Intentional Infliction of Mental Distress also exists in Alberta and requires that the following be proven:

1. Flagrant or outrageous conduct;
2. Calculated to produce harm; and
3. Resulting in visible and provable illness.

To lead evidence in this matter, the girlfriend had to meet the test for an Anton Piller order as summarized at para 29 in British Columbia (Attorney General) v Malik, 2011 SCC 18:

[29] An Anton Piller order is, as our Court emphasized in Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189, a thoroughly “draconian” measure equivalent to a private search warrant reserved for “exceptional circumstances” (para. 30) where “unscrupulous defendants” may if forewarned make “relevant evidence disappear” (para. 32).  Accordingly:

 There are four essential conditions for the making of an Anton Piller order. First, the plaintiff must demonstrate a strong prima facie case.  Second, the damage to the plaintiff of the defendant’s alleged misconduct, potential or actual, must be very serious.  Third, there must be convincing evidence that the defendant has in its possession incriminating documents or things, and fourthly it must be shown that there is a real possibility that the defendant may destroy such material before the discovery process can do its work . . . .  [para. 35]. It bears repeating that the Province enjoys no special status in this application.  It appears as a civil litigant and is to be treated no differently than any other applicant for an Anton Piller order.

Given that the evidence supported that there was no genuine issue to be determined at trial (it was established on a balance of probabilities that it was the ex-boyfriend who had posted the intimate photos online), Justice Belzil found that this was an appropriate case in which to proceed via summary judgement.

Justice Belzil awarded the girlfriend a total of $130,000 in damages apportioned as follows:

• $80,000 for general damages;
• $25,000 for aggravated damages; and
• $25,000 for punitive damages.

The ex-boyfriend tried to appeal Justice Belzil’s decision but was unsuccessful.

It seems that Canadian Courts are opening their minds to the possibility of large damage awards in family law cases. Even more recently, the Supreme Court of British Columbia in Schuetze v Pyper, 2021 BCSC 2209 (“Schuetze”), awarded a woman who was assaulted by her husband almost $800,000 for damages apportioned as follows:

• $100,000 in non-pecuniary damages;
• $664,000 for loss of income;
• Over $20,000 for the cost of future care; and
• $8,000 in special damages.

Similar to the Alberta decision cited above, the husband in the BC case was criminally convicted for the assault.

The facts of the assault in Schuetze are particularly egregious. The wife was left with permanent and debilitating mental and physical injuries that prevented her from driving or cooking for months, and now greatly impact her everyday life. Unfortunately, the children of the parties witnessed the violent attack, and it was their 6-year-old daughter who phoned 911.

These two decisions seem to represent a willingness of Canadian Courts to award damages in family law cases. This is a step in a positive direction, towards justice for individuals who have been abused by their ex or current partners.