Court File and Parties

COURT FILE NO.: FC-12-1649-00 DATE: 20170518

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DIANNE LEE MONTGOMERY Applicant – and – JESSE ARCHIBALD KENWELL Respondent

COUNSEL: G. Karahotzitis, for the Applicant Respondent self-represented; not attending

HEARD: May 17, 2017

Reasons for Judgment

HEALEY J.

[1] By order of Wildman J. dated April 15, 2017, this matter was scheduled for the hearing of an uncontested trial on the issues of:

1. Determining income to be imputed to the respondent for the purpose of determining child support;
2. Determining the quantum of child support to be paid by the respondent for the two children of the marriage, retroactive and ongoing;
3. A permanent restraining order requiring the respondent to have no contact with the applicant or the children and to remain 500 metres away from their residence, schools or places of employment;
4. An award of damages sought by the applicant for assault and battery during the marriage;
5. A divorce.

[2] This court had the benefit of evidence on each of these issues contained in the applicant's Form 23C, supplemented by oral evidence provided at the hearing, along with her lawyer’s able submissions and summary of the law.

[3] By way of brief background, the parties were in a relationship for a total of 14 years. They began living together in 1997 and married on April 29, 2000. They separated in January, 2010, and the respondent moved out of the home permanently on May 19, 2011. There are two children of the marriage: Josie, age 19; and Jacob, age 15.

Income

[4] This is a case in which the respondent has disregarded his obligation to make adequate financial disclosure both as required by law and by prior orders of this court. The disclosure made by him is scant and wholly inadequate, particularly given his claims that he is employed by his father and is working off debts allegedly owed to his father. His two financial statements filed in the proceeding are incomplete, a fact admitted by his former counsel before seeking an order to be removed from the record. The last financial statement filed by the respondent is dated August 14, 2013. His pleadings were struck by order of August 16, 2016, for written reasons delivered on that date.

[5] Where there is such an absence of financial disclosure, there is broad discretion for a court to draw reasonable inferences for the purpose of imputing income: Bagheri-Sadr. v. Yaghoub-Azari, 2011 CarswellOnt 780 (S.C.J.), at para. 13; Psavka v. Kroll, 2016 ONSC 1087, 2017 CarswellOnt 2663 (S.C.J.), at para. 22; Manchanda v. Thethi, 2016 ONSC 3776, 2016 CarswellOnt 8951 (S.C.J.), at para. 8.

[6] In her Form 23C affidavit the applicant has put forward evidence, in my view as best as is possible given the limited information available to her from the respondent, which demonstrates to this court that the respondent’s income has historically been higher than reported in his two financial statements or to Revenue Canada. On the evidence, there is a basis to find that the respondent continues to work, as he did throughout the marriage, in the farming, logging and construction industries, through his own companies, his father's entities, or a combination of both. In the years preceding the separation, the respondent’s income was much higher than his more recently reported income. In her income tax returns, the applicant reported that the respondent’s 2006 net income was $172,789, and his 2007 net income was $111,747. Of interest is a CRA Notice of Assessment for 2015, which indicates that the respondent is required to pay $168,599.47. The size of this debt strongly suggests that CRA has reassessed the respondent’s income to something far greater than the $20,000 to $30,000 range that he has reported from 2011 to 2015. The respondent did not provide any other Notice of Assessment than the one for 2015. Further, the respondent also delivered a Notice of Reassessment for GST/HST for the period January 1, 2007 to December 31, 2007. That document indicates that the respondent had a prior balance of $283,856.15 and that a further $45.13 was owed as a result of CRA's reassessment, for a total balance owing of $283,901.28. It is not known over how many years that debt accumulated. Nonetheless, this piece of evidence further reinforces this court's conclusion that the respondent is underreporting his income in this proceeding.

[7] The respondent has also provided evidence that he resides in a property owned by his father, rent free, drives a vehicle leased by his father, and has the benefit of his father paying for other personal expenses. This information, in addition to a weekly wage that the respondent claims he is being paid by his father, is summarized in a one-page document that was produced by the respondent on July 22, 2016. There is also evidence that the respondent receives royalties through a licence agreement that permits a gravel pit to be operated on property owned by him. A summary provided by the respondent of the royalties received between August 2011 and July 2013, with no back up documentation, shows a total amount received during that time of $17,120, or $8,550 per year. His evidence is that these royalties are paid to his father.

[8] The applicant believes that the respondent has structured his financial affairs to attempt to avoid CRA debts and taxes. She also believes that the respondent's true income is in the range of $120,000 to $150,000, but for the purpose of finalizing this proceeding is content that the court impute income in the amount of $80,000. There is a principled basis for reaching such a number. Using strictly the information provided by the respondent himself, as set in the preceding paragraph, it is possible to reach an amount even higher than $80,000. The respondent states that his weekly wage after deductions ranges from $490 to $600 per week. Given the respondent's conduct in this proceeding, I infer that $600 is itself an understatement, and therefore select this higher number out of the range given. The income received by the respondent must be grossed up for support purposes. Using a factor of 1.375 or a 37.5 percent tax rate, as submitted by counsel, results in income of $825 per week. Further, the additional benefits paid by the respondent father, grossed up by the same factor, total $605 per week. These amounts together total $74,302.80 per year. Added to this number is the amount provided by the respondent for income earned through the licencing agreement, which then brings the respondent’s total annual income to a point in excess of $80,000. The rationale for allowing a gross-up for tax where a payor arranges his or her affairs to pay substantially less tax on income, and to ensure consistency between payors, is explained in Orser v. Grant, 2000 CarswellOnt 1354 (S.C.J.), at paras. 10-13.

[9] Pursuant to paragraph 19(1)(f) of the Child Support Guidelines, the court may impute income to a payor who has failed to make sufficient disclosure. In this case, the circumstances would also allow the court to impute income under subparagraphs (d) and (h) as well, as the respondent appears to have diverted income to his father, which should otherwise be used to determine the level of child support under the Guidelines, and because he has been deriving a significant portion of his income from personal benefits provided by his father that are exempt from tax. As set out in Menegaldo v. Menegaldo, 2012 ONSC 2915, 2012 CarswellOnt 6030 (S.C.J.), at para. 74, the only limitation on the discretion of the court to impute income is that there must be some basis in the evidence for the amount that the court has chosen to impute.

[10] Conservatively, for the foregoing reasons I impute income to the respondent in the sum of $80,000 per annum for each taxation year from the date of separation onward, for the purpose of determining an appropriate amount of child support.

Child Support

[11] That determination having been made, the respondent should have paid the sum of $1,172 per month pursuant to the Guidelines for two children beginning on June 1, 2011. The respondent moved out of the house in May, 2011. No child support was paid on a voluntary basis thereafter. The order of Wildman, J. dated August 20, 2013 required temporary child support to be paid by the respondent in the amount of $386 per month commencing August 1, 2013 on a without prejudice basis, and subject to adjustment on motion following disclosure of the respondent's income.

[12] Both children continue to be dependents. Josie is attending school full-time at a learning center, but still needs to earn a couple more credits to receive her secondary school diploma. Jacob is in grade 10 and attending school full-time. Although in-depth medical evidence was not provided on this motion, the applicant's evidence is that Jacob’s brain injury will result in him being a dependent for the remainder of his life. As I understand the evidence, he has received a settlement in regard to statutory accident benefits, which is being paid out for his rehabilitative needs under a structured settlement, but that a tort action is still ongoing.

[13] I find that the order should be made retroactive to June 1, 2011. Filed in evidence are two letters sent to the respondent by Mr. Karahotzitis in the summer of 2011, requesting disclosure for the purpose of resolving the matter "as amicably and expeditiously as possible". The respondent ignored these letters. Having regard to the factors to be considered by the court when faced with a request for retroactive support, as set out by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 (S.C.C.) at paras. 110-116, I find that this is a clear case for such an award.

[14] Any delay in commencing this application before November 2012 is fully explained by the applicant. She first made overtures through counsel's letters to deal with the matter without court involvement. Delay was thereafter a result of having her son in the hospital between May and December, 2011, a fact known to the respondent, and being the primary caregiver to this child following his discharge with serious orthopedic injuries and a brain injury, all of which required her exhaustive attention, with no help from the respondent. In addition, the respondent was arrested for assaulting her in September 2011, and that criminal proceeding was ongoing through 2012.

[15] In terms of any blameworthy conduct on the part of the payor, he knowingly avoided his child support obligation until the interim order was made in 2013, he breached both the orders made in this proceeding in part to attempt to frustrate a proper assessment of child support, and breached the terms of his recognizance in the criminal proceeding. The record shows that throughout this proceeding he continued to ask for indulgence to either retain counsel or satisfy the disclosure requirements, all of which led to delay and adjournments which ultimately were granted for no useful purpose.

[16] In terms of the circumstances of the children, the evidence is clear that this separation has been extremely difficult on the children and will have ongoing repercussions for them. The reasons for this will be discussed later on. However, the respondent was the sole wage earner for the family. The circumstances in which the applicant found herself at the time that Jacob was injured meant that she was unable to look for employment. There is no question that the financial stresses on the applicant and children were extensive, and would have been alleviated by a proper and regular support payment.

[17] In terms of any hardship on the support payor, the last issue for consideration, there is no evidence before the court of hardship to the respondent that will ensue from a retroactive award of child support.

[18] The applicant provided evidence that only a few days ago she received money from the Family Responsibility Office on account of child support arrears that had accumulated between November 2016 and April 2017 under the interim order. These arrears were referenced in paragraph 10 (ii) of the 23C. The amount received by her on May 11, 2017 was $2,316. Accordingly, the calculation of retroactive child support owed by the respondent from June 1, 2011, giving the respondent credit for amounts paid, is correctly calculated at paragraph 10 (ll) of the 23C, less the amount of $2,316, such that the amount of support owed as of January 31, 2017 is $61,134.

[19] Periodic support for the two children shall be paid by the respondent in the amount of $1,172 per month commencing February 1, 2017. In addition, the respondent should pay his proportionate share of all expenses for the children properly falling under section 7 of the Child Support Guidelines. The applicant filed evidence of her 2016 income at this hearing. I find that for 2016, the applicant's total income for the purpose of any section 7 calculation was $68,800.

Spousal Support

[20] As submitted by the applicant's counsel, there are many difficulties in fixing an adequate amount of compensatory spousal support in this case, assuming that entitlement can be shown. In my view there is ample basis for entitlement by virtue of the caregiving role assumed by the applicant for Jacob following his catastrophic accident. There may be other bases for such an award, but the applicant has decided not to pursue any spousal support award at this time. However, since one of the reasons for her reluctance is the lack of financial information from the respondent that would show his assets, present and future income stream and ability to pay, I find that justice would not be done without providing a nominal spousal support award that could be subject to variation in the future pursuant to s. 17 of the Divorce Act. Accordingly, I award spousal support to the applicant in the amount of $1.00, to be paid on the 1st day of each month commencing June 1, 2017 and thereafter on the first day of each month.

Restraining Order

[21] The applicant set out a history of verbal and physical abuse in the 23C, and supplemented this evidence during her oral testimony. This was a chilling account of profoundly controlling techniques aimed at isolating the applicant and leaving her vulnerable to the respondent's rages, often brought on by excessive alcohol use. She described that he opted to push or slap in particular, pull hair, and if he felt he was being ignored, he would kick the family's dogs even with steel-toed boots in order to get attention. She also testified that she endured regular sexual violations against her will. She was told that he would "hunt her down" if she ever left him, and called her derogatory and demeaning names even in the presence of the children.

[22] During the relationship the respondent was criminally convicted on four occasions, the respondent being the victim each time. In the first offence, he smashed her car windows because he was unhappy that she attended a bar. In the second incident, he pushed her to the ground while she was holding Josie, then an infant, and hit the applicant’s head so hard that he broke her eardrum, leading to permanent hearing loss. For the third conviction, he was angry at her for wanting to leave a dance to attend to their newborn; he attacked her in the parking lot as she left and witnesses called the police. The last assault occurred after the separation, in September, 2011. Following his arrest, the respondent breached the terms of his recognizance and was convicted of that offence as well. He pled guilty on March 6, 2013 to assault, uttering a death threat and breach of recognizance. He was sentenced to 90 days, to be served intermittently, and probation for two years. It was a term of his probation that he abstain from communicating with the applicant and Josie, and from being within 500 metres of their places of residence, employment and education. That probation order terminated in March, 2015.

[23] At the hospital on one of the immediate days following Jacob's accident, when he was in a coma and it was unknown whether he would survive, the respondent threatened the applicant that he would burn her house down if she started any civil proceeding related to the accident.

[24] There has been little contact between the children and their father since May 19, 2011. It was on that date that Jacob sustained his permanent injuries when he was riding on an ATV while under his father's care. As a result of the lack of contact, the respondent’s seeming indifference to repairing the relationship with his son, and the documentation in the record from members of Jacob's rehabilitative team indicating that he has a fear of his father and of having contact with him, Wildman J. prohibited the respondent from having access to Jacob by order of April 15, 2017. As Josie is 19, Wildman, J. declined to make any order in relation to her.

[25] The applicant testified that Jacob is constantly vigilant about the respondent. Jacob expresses a belief that the respondent or members of his family will kidnap him. He keeps the blinds closed and constantly checks that the doors are locked in the home. The applicant had to buy a German Shepherd to provide him with reassurance. When he initially began to attend at his current school, he needed reassurance from the educational assistants assigned to him that they would not let the respondent take him from the school. After years of silence, without warning the respondent called the applicant's home one evening last February and asked to speak to Jacob. He did not identify himself, but she recognized that he had been drinking from the slur in his voice. She immediately called the victim assistance office in Barrie to obtain advice to protect herself and the children.

[26] The applicant also gave evidence that members of the respondent's family are given to driving by her residence, where she moved in 2013. She indicated that she knows of no reason why they would do so other than to monitor her and the children in order to provide information to the respondent.

[27] With respect to Josie, there has been one contact which was very destructive. According to the applicant, the respondent convinced Josie in 2013, at the age of 16, to move out of her mother's house and told her that he would rent an apartment for her. This caused further anxiety for Jacob because he was concerned that Josie’s renewed contact with her father would mean that she would let him into the house. Ultimately the respondent did not pay for the apartment, Josie lived at a women's shelter for a while before moving back home, and she never heard from her father again. She has tried to have part-time jobs in the community, but continued to encounter her father or his family, which was a source of anxiety and strain. She last encountered the respondent while working as a hostess in a restaurant, when he entered with his girlfriend and her children and did not acknowledge her.

[28] The respondent's violence was not limited to the applicant. In April 2011, her evidence is that he became violent toward Josie, which resulted in Josie calling the police. In the course of an argument with his daughter over cleaning her room, he is alleged to have thrown her on the floor by her neck after destroying her stereo.

[29] While Jacob was hospitalized, and immediately following his accident, the respondent removed cattle from the applicant's property without her permission. His actions affected Jacob deeply. A report written by the social worker who is part of his rehabilitative case management team, Todd Gillies, reads:

… He has begun to talk more and more about his missing cattle and his anger towards his father for taking them from him. He perseverate on this issue, partially due to his cognitive impairments, and partly because this represents another loss in his life among many.

[30] Other correspondence from Mr. Gillies notes that Jacob related experiences to him where he felt bullied and intimidated by his father, has nightmares and negative intrusive thoughts about his father, and is worried that he will harm him. His fears are predicated on his exposure to his father uttering threats of death or bodily harm to his mother and neighbors.

[31] The test for whether a restraining order should be granted under s. 46 of the Family Law Act is whether the moving party has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. It is not necessary for a respondent to have actually carried through on an act or words of harassment to justify a restraining order. It is enough if the applicant has subjective fear of harm, which can be reasonably and objectively connected or associated with a respondent's actions or words: Khara v. McManus, 2007 ONCJ 223, 2007 CarswellOnt 3159, at paras. 31 and 33.

[32] In this case, the four criminal convictions, the nature of the evidence leading to those charges and convictions, the lengthy history of violent inter-spousal abuse, the respondent’s behavior toward his children, his conduct toward the entire family following the separation, the apparent monitoring by his family members, and his recent attempt to contact Jacob all lead to the conclusion that the applicant has reasonable grounds to fear for her own safety and that of the children, and accordingly a permanent restraining order shall issue in the terms sought by the applicant.

Damages for Domestic Assaults

[33] The application seeks general damages in the amount of $150,000. Following full review of the case law in this area, which Mr. Karahotzitis submitted is slowly departing from an era where nominal awards were frequently made in the context of inter-spousal assaults and is now edging toward more appropriate damage awards in keeping with the general principles of tort law, he submitted that an award in the range of $75,000 would be appropriate.

[34] Mr. Karahotzitis provided the court with a chart summarizing the decisions in which Canadian courts have ordered damages for the inter-spousal tort of assault. His chart is attached to these Reasons as Schedule A.

[35] I agree with counsel that all aggravating factors of this case must be considered in making a determination of general damages. Aggravated damages are intended to compensate the personal suffering of the victim: Costantini v. Costantini, 2013 ONSC 1626, at para. 59. A particularly egregious factor that must be considered in cases involving spousal abuse is the flagrant breach of trust that is central to a marital relationship: Surgeoner v. Surgeoner, 1993 CarswellOnt 4419 (Gen. Div.) at paras. 40-41; Costantini, supra at para. 68; Shaw v. Brunelle, 2012 ONSC 590, at para. 110. The criminal law has statutorily recognized this concept in s. 718.2 of the Criminal Code of Canada, by requiring the sentencing judge to consider an increase in sentence where, as an aggravating circumstance, the offender abused his spouse or common-law partner when committing the offence. The trust inherent in a domestic relationship, when breached by one partner deliberately harming the other, should be likewise recognized in tort law through an elevated aggravated damage award. There is no reason why the civil law should not keep step with the criminal law in imposing sanctions that contribute to a “just, peaceful, and safe society”, which is one of the fundamental principles of criminal sentencing.

[36] In Shaw v. Brunelle, supra, a case involving spousal assault, Blishen, J. applied the principles set out in Weingerl v. Seo (2005), , 199 O.A.C. 172 regarding the determination of aggravating factors, and stated at para. 109:

… The following are aggravating factors which should be taken into account to determine whether the non-pecuniary damages should be increased: humiliation, degradation, violence, oppression, inability to complain, reckless conduct which displays a disregard of the victim, and post-incident conduct which aggravates the harm to the victim.

[37] Each of these aggravating factors applies in this case to elevate the compensation that should be awarded to the applicant for the 14 years of abuse and its sequela. In addition to the permanent loss of hearing in her left ear, she now experiences low self-esteem, social withdrawal, sleep deprivation and symptoms of depression and anxiety. I have taken into account that the applicant will have endured significant distress as a result of Jacob’s near-death accident and ongoing impairments, and that these experiences will be contributing to her ongoing symptoms. However, that aside, her pain and suffering, past and ongoing, caused directly by the respondent’s treatment is in and of itself deserving of a significant award of damages.

[38] Having reviewed the cases provided by Mr. Karahotzitis, I agree that the facts of this case properly fall within a range of $50,000 to $100,000, and find that an award of $75,000 is well warranted in order to provide a reasonable amount of damages to the applicant.

Divorce

[39] As this is a final disposition of all claims made in this proceeding, and the applicant deposing that she does not wish to pursue her claim for equalization, a divorce order will be granted. Evidence meeting of all of the statutory requirements has been provided in the 23C.

Costs

[40] I have reviewed the updated Bill of Costs provided, which includes the costs of preparation and attendance at this final appearance. Rule 24 of the Family Law Rules, which imposes a presumption that a successful party is entitled to the costs of the case, applies to uncontested trials: Gaffney v. Hyatt, 2015 ONSC 1856, 2015ONSC 1856, 2015 CarswellOnt 4009 (S.C.J.), at para. 12; Benson v. Crawford, 2012 CarswellOnt 13373 (S.C.J.) at para. 9.

[41] There is nothing about the behavior of the applicant in this case to move it away from the generally accepted approach of having costs recovery come close to full recovery. The applicant has in fact made decisions in the course of the litigation, such as abandoning any claim to an equalization of net family properties, which have caused a very difficult case to come to a close. Undoubtedly this is in the best interests of the children, in particular. The claims made by the applicant were appropriate and necessary to secure the rights afforded to her and the children at law. Given the outcome, the degree of success of the applicant, and all of the circumstances of the case, this court orders that the respondent shall pay costs of the proceeding to the applicant on a full indemnity basis, being 85 percent of actual costs, fixed in the amount of $45,664. These costs shall be enforced by the Family Responsibility Office as though an order for child support.

HEALEY J.

Released: May 18, 2017

SCHEDULE ‘A’

Case	Award	Facts	Notes
Sorrenti v Blair, 2013 ONSC 2584	General damages: $75,000 No punitive damages	Injuries: right arm fracture causing permanent physical limitations (required surgery) - H charged and convicted of assault	No punitive damages awarded because H plead guilty to assault charge and was sentenced. No information before the court regarding the sentence.
Costantini v Costantini, 2013 ONSC 1626	General damages: $15,000 (W did not pursue claim for punitive damages)	Married for 3 years Injuries: bump on head, bruising, soft tissue injury, headaches, pain throughout body, depression, insomnia, - H charged with assault and making death threats, later also charged, twice, with breaching terms of interim judicial release	Low award for damages because injuries were similar to Rezek v Rezek and Valenti v Valenti.
Holden v Gagne, 2013 ONSC 1423	Damages: $1,000	Married 17 years - Multiple incidents of assault. (from wedding night, until after separation). - H charged multiple times for assault on W - one incident found to have caused bodily injury: bruising that did not require treatment	- low damage award because of lack of evidence, experts, long passage of time from time of abuse, and minimal injury
Augur v Chartrand, 2012 SKQB 363	Non-pecuniary and Aggravated Damages: $50,000	Cohabitated for approx. 8 years - Chartrand had alcohol and gambling problem - history of verbal abuse - physical abuse over 5 day period in which he repeatedly hit Augur, threw her, deprived her of sleep, struck her with a glass vase causing her to bleed. Another 3 day period of abuse occurred later on. - Injuries: severe and extensive bruising all over her body, cracked rib, broken nose, cut on eye, soft tissue swelling on left side of face and skull, depression - Chartrand charged (+ plead guilty) to two counts of assault causing bodily injury	Calculating the Damages: “…Ms. Auger was subjected to repeated assaults and abuse over both periods of confinement, that Ms. Auger was forced to leave the family home as a result of the assaults, that she has encountered very difficult financial circumstances over the period of time following the assaults, that she had to live in a shelter or transition home after the assaults, and the fact that she suffered from depression and some post traumatic stress disorder, suggest to me that a claim for general damages, including as it does a claim for aggravated damages, must be significant.” para 64.
McLean v Danicic, 2009 ONSC 3200	General damages: $15,000	- cohabitated for 5 years - Danicic harassed McLean following commencement of proceedings. - charged with harassment, extortion and attempting to obstruct justice’ - no claim of physical assault
Dhillon v Gaba, 2014 BCSC 1860	General and Aggravated damages: $2,000	Married for 4 months Injuries: bruising
Dekany v Parenteau, 2014 ONSC 49 (appeal by W to increase damages dismissed)	General Damages: $20,000 Punitive Damages: $25,000	Married for 22 years. - Injuries: minor between 1998-2001, 2008 incident = laceration to scalp
K.R.W. v S.A.W., 2003 BCSC 522	Non-pecuniary damages: $10,000	Married for 33 years. - physical and verbal abuse throughout marriage - Injuries: black eye, bruising, laceration to elbow, laceration to scalp,	No pecuniary damages because: “Given the nature and turbulance of the marriage and the great difficulties caused by Mrs. S.A.W.'s behaviour, I am satisfied that this is not a case in which it would be appropriate to award punitive damages.” para 86
Shaw v Brunelle, 2012 ONSC 590. The name changes throughout the litigation: Shaw v Shaw, 2012 ONSC 5974 Shaw v Brunelle-Shaw, 2008 ONSC 4600	General and Aggravated Damages: $65,000 ($50,000 without aggravating factors) No punitive damages	-1 year marriage and W violently ejected from home -separated after H criminally charged with assault resulting in wrist fracture Injuries: serious fracture to wrist (required surgery), sleep deprivation, depression, PTSD/ anxiety disorder, chronic pain	“This violence was perpetrated by an individual she should have been able to trust and rely upon.” “Although reprehensible, I do not find Mr. Shaw’s conduct, though extreme, to warrant an award of punitive damage sin order to punish him and deter him and others from committing a similar act. Therefore, I will not order punitive damages.” Aggravating factors to increase non-pecuniary damages (T.W. v. Seo, (2005) 256 D.L.T. (4th)): humiliation, degradation, violence, oppression, inability to complain, reckless conduct which displays a disregard of the victim, and post-incident conduct which aggravates the harm to the victim.
J.K.G. v. T.S.G., 2005 BCSC 140	General damages $225,000 inclusive of $50,000 in aggravated damages	- H found guilty of attempted murder of W and received 9 years incarceration Injuries: 20 significant gashes to W’s head and both arms severely damaged. 8 days in the hospital, 13 operations. Significant scarring to W’s face, hands, arms. W lost use of arms and hands for all but the most rudimentary tasks. Permanently disabled.	- no punitive damages because punished through criminal proceedings
Belanger v. Belanger,	General damages $4,000 and exemplary damages $1,000	- H stabbed W five times – 7 years imprisoned W spent 3 days in hospital
Dhaliwal v. Dhaliwal,	General damages: $5,000 and $5,000 for aggravated and punitive damages	- H criminally charged and convicted of assaulting wife - W suffered from depression, sleep disturbances, anxiety
Surgeoner v. Surgeoner, 1993 CarswellOnt 4419 [1993] O.J. No. 2940	$4,000 general damages $4,000 punitive damages	- alcoholic and abusive during 16 years of cohabitation - no permanent injury - no medical tx sought - criminally convicted (suspended sentence with one year probation)	“in addition to the physical injuries suffered by D.S., she suffered humiliation of the attack. R.S. was once a trusted companion. For him to strike her in the groin area was more than a physical assault, it was a breach of trust” para 37 “I find it difficult to conclude that, simply because R.S. has been convicted of this assault, I cannot award punitive damages in this action, which is an action between husband and wife, where a special relationship exists. What does D.S. gain by that conviction? The answer is nothing. I am of the opinion that such cases as this, commonly referred to as domestic violence cases, arising because of a special relationship that is created by marriage and based upon trust, should be an exception to the general principle surrounding the award of punitive damages notwithstanding that such may result in ‘double jeopardy’” para 40
Harris v. Cohen,	Aggravated damages: $10,000	Court did not find the physical injury serious enough for court intervention. However, incidents of barging into the sons’ room uninvited and into the bathroom when W was naked, making the son watch while the H made derogatory comments were of high concern	- had the W claimed punitive damages, Court would have awarded para 149 (because of arrogance, high-handedness and cruelty of H’s actions.)
Farkas v. Kovacs,	General damages: $10,000 $2,500 punitive damages	- H assaulted W on three occasions - no physical harm but emotional and mental harm	The Court stated that it is important that the husband must be disabused of any perception that domestic relationships provide a license for assaultive behaviour.
Valenti v. Valenti,	General damages $10,000 Aggravated damages $2,500 Punitive damages: $2,500	- 16 years of marriage - H suffered from alcohol + drug problem - W suffered from PTSD - prior criminal convictions for assault - charged with assault causing bodily harm (plead guilty) and forcible confinement (charge dropped). Spent 5 months in jail.	In awarding punitive damages, court stated that, “the deterrence of this kind of conduct can only occur when such abuse is treated with the outrage it deserves”
S. (L.N.) v. K. (W.M.), 1999 ABQB 478	General damages: $15,000 Punitive damages: $4,000	- abuse over almost 20 years - Common law marriage - W kept diary throughout (outlining abuse) - H convicted of assault
Flachs v. Flachs,	General damages: $125,000 Aggravated damages: $25,000 Punitive damages: $25,000	- 38 years of abuse - W suffered from PSTD, anxiety and depression	- punitive damages awarded above the criminal sanctions for assault
C. (N.) v. B. (W.R.),	General damages $65,000 and $25,000 in aggravated damages	- physical abuse and sexual assault five times a week during 6.5 year relationship - W suffered from PTSD
C. (M.) v. M. (F.),	General damages $40,000	- cohabited for 2 years - sexual and physical assaults post-separation - acquitted on criminal sexual assault charges
Wandich v. Viele,	General damages: $5,000	- not married - 7-9 incidents of assault – threated with knife, choked her, caused her nose to bleed, punched her and poked her in the eye - criminal conviction	- no award of punitive damages - stigma of finding of guilt in criminal court and fact wife was compensated by award served as adequate penalty and deterrent para 90
White v. White, 2003 BCSC 470	General damages: $10,000	- most serious assault leaving exposed scalp in two places
Megeval v. Megeval,	General and aggravated damages of $45,000 Punitive damages: $5,000	- 24 years of cohabitation - serious permanent injury to W’s right wrist and unable to work	“The fact that the assault (or more accurately, the battery) in this case took place in the context of a marriage, and from a husband of substantially greater stature and strength than his wife, supports a claim for aggravated damages” para 63 Punitive damages : “…it is significant that Mr. Megeval, in his evidence at trial has demonstrated no remorse or contrition, and, throughout the trial, continued to deny any abusive behaviour on his part.” para 78
Rezel v. Rezel, 2007 ONSC 2313	General damages: $7,500	- assaults did not lead to lasting injury and no lengthy history of physical violence - black eye and off work a few days
Van Dusen v. Van Dusen, 2010 ONSC 220	General and aggravated damages: $15,000 No punitive damages	- charged and convicted of assault - W assaulted by H throughout marriage - H struck W in face causing bruising, swelling, H jumped on top of W, causing bruising, swelling over entire body
C.S.F. v. J.F.,	General damages $125,000 and $25,000 in aggravated damages Punitive damages: $25,000	- 38 year marriage - physical and sexual abuse injuries included bruised and broken ribs, punctured lung, sprains, bruises and burns - suffered PTSD - husband criminally convicted
H. v. H.,	General and aggravated damages: $30,000 Punitive damages: $5,000	- severe injuries: lacerations, permanent injuries to face and scars, PTSD, improper functioning of lower lip - W required 25 stitches - one assault (New Years party) - criminally charged but conditionally discharged	- the fact that the defendant has been convicted criminally for the offence is not a bar to awarding punitive damages. Whether or not punitive damages should be awarded is a question of fact, not law. para 47
Johal v. Johal,	General damages: $4,000 Punitive damages: $10,000	- over 20 year marriage - absence of criminal prosecution - physical and verbal abuse - bruising to hip, shoulder, back, wrist and thigh	“The evidence shows his oppressive and controlling conduct and the absence of any criminal repercussion. As well, the loss of dignity visited upon his wife in the harassment and assaults, continues justifying in certain circumstances, aggravated damages to express this court’s abhorrence of the conduct of the plaintiff over the period of time of the marriage. I assess the punitive or exemplary damages at the sum of $10,000.” para 17
Marchese v. Marchese,	General damages: $7,500	- married more than 50 years - repeated assaults during marriage between 1975 to 1993 - minor assaults and no medical treatment - assaults before 1975 barred because of s.7 of the Married Woman’s Property Act which prohibited spouses from suing each other in tort.
Tzeng v. Tzeng, 2007 ONSC 2314	$40,000 in general, aggravated and punitive damages for assault by former spouse	- married for 1 year when H arrested for assault