Courts understand that intimate partner violence can involve harms that go beyond physical injury and can include fear, trauma, and financial insecurity. These types of allegations can significantly affect family law claims. When a party raises allegations of intimate partner violence, judges need to engage with the evidence and determine how the context of intimate partner violence may be relevant to the issues before the court. As one recent case demonstrates, failing to adequately address these allegations can constitute an error.

Appellant Argues Her Claims Were Dismissed Prematurely

In Malamas v. Wey, the central question was whether the motion judge erred by granting summary judgment dismissing the appellant’s action. This required determining whether there were genuine issues requiring a trial in connection with the appellant’s claims against her former husband. The appellant originally claimed damages for emotional distress and for alleged financial deception in relation to ownership of the former family home. Significantly, she also alleged that during the marriage, she experienced intimate partner violence, and claimed that the violence was part of the context in which the financial misconduct occurred.

The respondent sought summary judgment of the claims, and the motions judge dismissed the action, finding that the claims were barred by the Limitations Act and precluded by res judicata. However, the Ontario Court of Appeal concluded that summary judgment was not appropriate.

The appellant argued that the judge prematurely dismissed her claims. She suggested that the judge did not properly account for the allegations of intimate partner violence, and that this restricted the analysis of the issues.

Judges Must Consider the Context of Intimate Partner Violence

The Court began by looking at the appellant’s claims against her former husband and the context of intimate partner violence. First, the Court acknowledged the 1990 case of R. v. Bérubé, in which the New Brunswick Court of Appeal held that courts must be “particularly attentive” to spousal and family violence. And in this instance, the Court confirmed that when intimate partner violence is raised, judges must consider the allegations when they are relevant to the issues in dispute. And a failure to assess relevant evidence could constitute an error. Additionally, courts understand that intimate partner violence can involve long-term harmful patterns of conduct with psychological and economic consequences, and that judges must “be alive to these dynamics”.

For the Court, the appellant’s claims required careful consideration of her allegations of intimate partner violence, which should have featured in the motion judge’s analysis. She alleged that the violence and threats constituted a pattern of conduct that impacted her decision-making. And although these were allegations and not findings of fact, the Court emphasized that they were relevant to assessing whether there were genuine issues requiring a trial, which included the issue of “whether the appellant was realistically able to advance civil claims at earlier stages”. Also, it was alleged that the harms went beyond physical injury and threats, including financial insecurity and financial control. The Court confirmed that “intimate partner violence may have psychological, economic, and relational effects that persist over time”.

For instance, in Michel v. Graydon, the Supreme Court of Canada recognized that victims of domestic violence may delay seeking remedies such as pursuing their right to child support out of fear for their safety. The importance of this at the summary judgment stage is for judges to consider if such circumstances may impact the issues being raised.

Allegations of Intimate Partner Violence Were Relevant to the Summary Judgment Motion

The appellant also claimed that the violence, threats, and financial conduct that she experienced constituted an “interconnected course of conduct”. Previous cases, such as Ahluwalia v. Ahluwalia, recognized that intimate partner violence can involve patterns of recurring harmful behaviour rather than isolated incidents. A further principle accepts that violence within intimate relationships can “have particular legal and factual significance” affecting “a party’s security, autonomy, or living arrangements”. And in this case, the appellant pointed to the violence that occurred within the home and that there were threats to her housing. Again, the Court emphasized that these principles are relevant when evaluating the evidence and determining whether a claim can be properly disposed of on summary judgment.

It was also significant that the appellant had caregiving responsibilities for children who were also allegedly exposed to family violence. Previously, in Barendregt v. Grebliunas, the Supreme Court of Canada rejected the suggestion that family violence has no impact on children and no relevance to parenting ability. Instead, the Court accepted that research indicated that children who are exposed to intimate partner violence are at risk of developmental and psychological consequences. In this instance, the appellant suggested that these circumstances affected her ability to pursue her claims earlier. For the Court, this was part of the relevant factual context.

Some Genuine Limitations Issues Required a Trial

The Court then turned to the way the motion judge considered the appellant’s claim against her former husband in light of the evidence and the legal principles. Ultimately, the failure to consider the context of intimate partner violence impacted the judge’s assessment of the limitations defence, as well as the application of res judicata and abuse of process. Consequently, the Court did not believe that the issues could be resolved on summary judgment. Here, the judge did not fully address the evidence of intimate partner violence or delve into how it may be relevant.

For the Court, the allegations and application of the Limitations Act raised genuine issues which required a trial. The appellant suggested her claims against the ex-husband could fall within s. 16(1)(h.2) of the Limitations Act, and the judge needed to consider whether her claims engaged that section. That section removes the limitation period for proceedings based on an assault in an intimate relationship where the claim is “in relation” to the assault. Courts have previously held that this does not require a direct link, and the requirement can be met where the claim has a connection to the assault.

The Court also highlighted that these are remedial provisions, and must be interpreted generously, given their purpose of “addressing broad systemic problems”. And in this case, some of the appellant’s claims may be linked to the assaults, and the Court felt the issue needed a full trial to determine the applicability of section 16.

Res Judicata and Abuse of Process

The same evidentiary record impacted whether the doctrines of res judicata and abuse of process barred the appellant’s claims. As the Court noted, these doctrines could arise where a claim could have been advanced in an earlier proceeding, but there is also a discretionary component. As the Court explained, “the exercise of that discretion requires consideration of the circumstances in which the earlier proceeding occurred, including whether there was a reasonable basis for not advancing the claims at that time”.

Here, the motion judge considered whether the appellant could have raised the claims in an earlier proceeding, but did not weigh whether it would be unjust or inappropriate to bar them in light of the evidentiary record. The Court determined that there were genuine issues requiring a trial to determine whether the discretionary components of the doctrine should enable the appellant’s claims to proceed. The appeal was allowed in part, and the Court set aside the orders granting summary judgment to the ex-husband.

Contact NULaw in Toronto for Trusted Advocacy in High-Conflict Family Cases

If you are navigating a family law dispute involving allegations of intimate partner violence, financial control, or complex civil claims, experienced legal guidance is critical.

NULaw represents clients across Toronto and the surrounding regions in high-conflict family and civil litigation matters. Our team, led by D. Lex Arbesman, understands how intimate partner violence can affect decision-making, delay legal action, and shape the outcome of claims involving property and support. Contact us online or call 416-481-5604 to book a consultation and get clear, strategic advice tailored to your circumstances.