Law in Quebec

The women sued her ex-husband for $120,000 in damages after suffering several violent episodes at his hand in 2014 and 2015, acts for which he was found guilty in 2015 before Court of Quebec Judge Sandra Blanchard. He was sentenced to 90 days of imprisonment for assault, assault with a weapon and theft. He argued he should he should not pay damages as the sentence was sufficient punishment, and blamed his diabetes for aggressive behaviour, loss of control and outbursts – arguments that were flatly rejected by Justice Moore.

Justice Moore found that it was “necessary” to impose punitive damages to repudiate his violent conduct and to prevent its reoccurrence. “It is necessary to make the (defendant) understand that he cannot express his anger by physical, psychological or sexual violence towards the (plaintiff) or anyone else,” held Justice Moore in A.A. c. N.R., 2021 QCCS 3101.

The month before, Quebec Superior Court Justice Danielle Turcotte ordered a former spouse to pay his ex-wife $10,000 in punitive damages for harm he caused while inflicting violence. “The actions by the spouse, of which he has no regrets, were intentional,” found Justice Turcotte in Droit de la famille – 211285, 2021 QCCS 2880. “The need for the spouse to express his rage, loudly and clearly, is beyond comprehension and must be deterred from recidivism.” Justice Turcotte also ordered him to pay 80 per cent of his ex-wife’s legal fees, or $24,000.

“One of the manifestations of post-separation violence is the use of the courts and lawyers,” said Justine Fortin, a lawyer and project manager at Juripop, a Montreal non-profit legal clinic that launched a legal hotline in March 2020, with the help of a $2.6 million contribution by the Quebec government, aimed at helping victims of domestic violence. “Aggressors are people who need to control and will make every effort, even if represented by counsel, to control their case and that will manifest itself by lawyers’ letters, and endless or abusive procedures before the court.”

In April in Droit de la famille — 21964, 2021 QCCS 2172 Quebec Superior Court Justice Stéphane Lacoste granted a divorce and ordered the ex-husband to pay $17,000 in damages for the physical and psychological violence he perpetrated on his ex-wife.

“There is little jurisprudence over the the determination of compensatory and moral damages and interest for acts of family violence,” underlined Justice Lacoste.

According to Suzanne Zaccour, author of La fabrique du viol, a book about fighting rape culture, it is long overdue for the courts to recognize the realities of family violence. “It’s good to see compensation in these cases but what is even more important is that family law courts are taking full responsibility for domestic violence cases,” said Zaccour, a doctoral candidate at Oxford University who co-taught a family law course this year at McGill University’s Faculty of Law. “It shows that as a society maybe we’re a little more open to talk about it, talk about the financial consequences of violence against women.

There are only some 20 cases in Quebec that have awarded damages to victims of spousal abuse, a figure that is less than the number of decisions that have granted damages to ex-spouses for online harassment, point out experts. But there are signs that is about to change. “It is a trend that will accelerate, and that’s because of the new amendments in the Divorce Act,” said Tétrault.

Revamped Divorce Act

Unlike the previous version of the Divorce Act which made no reference to family violence, Canada’s revamped law adds a broad definition of family violence that includes physical violence, psychological abuse, financial withholdings, damages to property, and killing or harming of animals. As well, the Act clarifies that family violence does not need to be a criminal offense or proven “beyond a reasonable doubt”, but rather on the civil burden of proof, based on a balance of probabilities. And just as importantly, according to experts, it is among the list of factors that courts must take into consideration when weighing the best interests of a child.

“The amendments in the Divorce Act helps because it recognizes the direct and indirect impacts of domestic violence on children, and therefore it is among the factors that will be taken into account when determining the best interests of a child – that is huge,” remarked Fortin. “This recognition will grant lawyers more latitude to plead conjugal violence, and ensure that all of the evidence will be presented to the court to determine parenting time, followed by the demand for damages. It can be heard at the same time. There is no need to split the proceedings, and the victim does not need to relive over and over again the traumas that she suffered.”

Tétrault is hoping that Quebec courts will bear in mind the federal Act when hearing lawsuits seeking damages for spousal violence under the Civil Code of Quebec, a scenario that is especially likely in cases involving common-law couples. According to Statistics Canada, nearly 40 per cent of Quebecers are in common-law relationships, compared to about one-fifth of Canadians. Tétrault points out that the Act provides “far more factors and tools to the court” than the Civil Code. “The Civil Code states that a decision must be taken in the interests of the child but it does not state what the interests of the child are,” said Tétrault. “Jurisprudence has developed criteria but they are not robust and uniform over the question of conjugal violence. Hopefully the courts will, when faced with a case by virtue of the Civil Code, apply the same criteria (as the Divorce Act). There is nothing in the Civil Code that prevents them from doing so.”

Cautious optimism

There are other reasons for the cautious optimism expressed by experts. Quebec has experienced a spate of femicides since the beginning of 2021, with an unofficial count putting the number at 14. The provincial government has set aside $222 million over five years to fund various resources to protect women, including shelters and programs for victims of domestic violence. “The Quebec courts have little choice due to the upsurge in feminicides,” remarked Tétrault. “At a given time, if we want citizens to continue to maintain their confidence in the justice system, the courts must realize that family violence is a serious problem and that it is a scourge.”

On top of that, lawyers are far more aware that they can launch proceedings seeking damages for spousal abuse, and are doing so, pointed out Fortin.

“Lawyers are more and more aware and informed about spousal abuse and its impacts, and they are now beginning to seek damages during divorce proceedings,” said Fortin.

That is what Juripop is now doing, but the majority of its cases will be heard in 2022. “But it’s not only about receiving compensation for harm but rather that it was recognized that they suffered a harm,” added Fortin. “For many victims the simple fact that a court recognizes that what they went through is real and that they suffered harm, harm that may last a lifetime, is major progress.”