COURT FILE NO.: FS-21-00026650-0000

DATE: 20240910

ONTARIO SUPERIOR COURT OF JUSTICE

VELLA J.

REASONS FOR DECISION

I. ​Introduction

1This family law and tort matter proceeded as a hybrid trial over a 9-day period.

2The Applicant Wife (“Ms. Barreto”) and the Respondent Husband (“Mr. Salema”) were married in India on May 18, 2003, and separated in Canada on August 21, 2020.

3There are no children of the marriage.

4Ms. Barreto seeks spousal support in the amount of $4,726 per month commencing January 1, 2024 on an indefinite basis, and lump sum spousal support in the amount of $100,000. In the alternative, she seeks hybrid lump sum spousal support in the amount of $100,000, and monthly

spousal support in the amount of $4,726 commencing January 1, 2024 and ending August 31, 2029.

5In addition, Ms. Barreto seeks retroactive spousal support in the sum of $144,544 payable according to a schedule she has prepared.

6Ms. Barreto also seeks an order that Mr. Salema irrevocably designate her as the beneficiary of a life insurance policy with a face value of $500,000 to secure his spousal support obligation.

7With respect to the matrimonial home, municipally known as 1107-115 Antibes Drive, Toronto, Ms. Barreto agrees that it must be sold but seeks as a term of sale that she be permitted to match any unconditional offer on the property if the parties cannot agree on a fair market value for the purpose of her buying out Mr. Salema’s interest. Ms. Barreto stipulates that Mr. Salema will receive credit for any amounts owing by him to her against his share of the net sale proceeds, including damages. This arrangement would facilitate her ability to purchase his interest in the matrimonial home.

8Ms. Barreto also seeks non-pecuniary general, aggravated, and punitive damages arising from the tort of intentional infliction of emotional distress in the sum of $50,000, and total damages for the tort of public disclosure of private facts in the sum of $20,000. In lieu of her claim for damages arising from family violence, she also seeks unquantified general non-pecuniary, aggravated, and punitive damages arising from physical assault and battery.¹

9Mr. Salema seeks an order that the matrimonial home be immediately listed for sale, in accordance with the terms attached as Schedule A to his draft order, and an order for occupation rent.

10In addition, Mr. Salema seeks an order that the existing temporary spousal support order of Myers J. be terminated, or alternatively that it only continues until the sale of the matrimonial home and terminate thereafter.

11Mr. Salema requests that Ms. Barreto’s claim for spousal support be dismissed, or alternatively that it be limited to commencing one month following the sale of the matrimonial home, in the sum of $3,826 per month, ending with a final payment on August 1, 2029. This

alternative request is based on an imputed income to Mr. Salema of $185,196 and an imputed income to Ms. Barreto of at least $33,100 in 2023.

12Mr. Salema also requests that Ms. Barreto’s claim for retroactive spousal support be dismissed, or alternatively that it be in the sum of $55,991.71, in addition to the other related relief listed in his draft order.

13The parties agree that Mr. Salema shall pay an equalization amount of $110,363, which includes Ms. Barreto’s full interest in the former matrimonial home in India located at Flat No. 402, 4th floor, Building A8, “Kunal Icon”, Sr. No. 126/1A + 126/1B + 126/2A + 126/2B, Pimple Saudagar, Taluka, Haveli, Pune (the “Pune Property”).

14The parties also agree that Ms. Barreto shall pay Mr. Salema the sum of $28,780 as post- separation adjustments to November 1, 2023.

15Mr. Salema seeks a divorce and Ms. Barreto consents.

II. ​Principles Governing Trials Where the Parties are Self-Represented

16An important function of the court is to ensure that the trial procedure is fair and balanced so that parties are able to fairly advance their positions and obtain a judgment based on the merits of the case. It may not be sufficient for a trial judge to simply swear in the witness, sit back, and listen. However, it is important that the trial judge maintain a neutral and impartial stance, both in appearance and actuality: Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15 (“Girao”), at paras. 149-151. This is particularly important where one or more of the litigants are self- represented. There is sometimes a fine line between ensuring that the key evidence is before the court and attempting to effectively construct the case. I was alert to not crossing that line. It is ultimately up to the parties to determine what positions they will take and how they wish to advance those positions.

17The court is guided by the Canadian Judicial Council’s Statement of Principles on Self- represented Litigants and Accused Persons (2006) (the “Principles”). The Principles provide guidance to trial judges. They also explain the duties of self-represented litigants to become familiar with the legal process with which they are engaged, to prepare their own case, and to be respectful. The Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4, endorsed the Principles.

18The trial judge’s role is multifold; however, the main roles are to state the law, find facts based on the admissible evidence adduced and based on a credibility assessment where the evidence diverges, apply the law to those facts, act as a gatekeeper, and control the trial process to ensure fairness to both parties.

19At the outset of trial, I explained the process and reminded the parties to review the document entitled “Ontario Superior Court of Justice: Overview of the Trial Process” provided by Breese J. (attached to Her Honour’s endorsement) at an earlier stage in this proceeding. The parties

were well prepared. They provided caselaw summaries to the court on an issue-by-issue basis, written opening and closing submissions, and oral submissions.

III. ​Relevant Juridical History

20On January 6, 2023, Myers J. made a temporary spousal support order requiring Mr. Salema to pay spousal support to Ms. Barreto in the sum of $3,000 a month commencing January 1, 2023. This was without prejudice to either party’s rights to claim retroactive support, an accounting for all post-separation housing expenses, and any other post-separation adjustments that may be raised at trial. A Support Deduction Order was to be issued, but apparently was not acted upon by Ms. Barreto.

21At the second trial management conference conducted by Kristjanson J. on November 10, 2023, the parties produced an Agreed Statement of Facts which is embodied in the endorsement as follows:

a. The amount of equalization owed by Mr. Salema to Ms. Barreto is $110,363;

b. Ms. Barreto owes Mr. Salema $2,621.60 for 50% of the mediation costs;

c. Ms. Barreto owes Mr. Salema $24,780 as post-separation adjustments for the carrying costs of the matrimonial home to November 1, 2023. The remainder in the TD bank account ending in 9571 is payable to Mr. Salema.

22At trial, the parties filed an Agreed Statement of Facts that reflected the above facts and added the following facts:

a. The Applicant was born on June 29, 1977;

b. The Respondent was born on May 14, 1976;

c. The date of marriage was May 18, 2003;

d. The date of separation is August 21, 2020.

23In addition, the parties agreed at the outset of trial as to the accuracy of their respective DivorceMate calculations for the scenarios depicted. These calculations were filed as Exhibits C and D at trial for identification purposes.

24Mr. Salema also agreed that if spousal support was ordered, he would obtain a life insurance policy to secure that obligation.

25Finally, during the course of trial, the parties admitted the authenticity of the emails, text messages and WhatsApp communications adduced into evidence, except as specifically noted in the Reasons.

IV. ​Issues

26The Court of Appeal in Ahluwalia v. Ahluwalia, 2023 ONCA 476, 167 O.R. (3d) 561 (“Ahluwalia”), at paras. 136-137 directed that where there are tort claims advanced within the context of a family law proceeding, the trial judge should start with a determination of the financial claims arising from the marriage, beginning with “the application of the statutory provisions”, because the statutory entitlements may inform the damages arising from the intimate partner violence (“IPV”) related tort damages assessment. At para. 140, the court recognized that tort claims are different from claims in equity (referencing, for example, unequal division of net family properties where equalization would be unconscionable, which is based in equity). Nonetheless, the court stated that “[a] compensatory support award under the Divorce Act may impact the quantum of damages”: Ahluwalia, at para. 140. The court also held that “[i]f the abuse allegation involves financial abuse, there may be an order for unequal division of net family property”: Ahluwalia, at para. 140. The court must be careful not to issue a damages award which duplicates an award under the statutory provisions so as to prevent, in effect, double recovery. In a family law proceeding, remedies will be dealt with, insofar as possible, under the family law framework.

27In this case, the parties have already agreed upon equalization, in the face of Ms. Barreto’s claims arising from various torts. Therefore, unequal division of net family property is not before me. However, there is a claim for compensatory (and needs-based) spousal support advanced by Ms. Barreto.

28Pursuant to Ahluwalia, I will determine the statutory entitlements of the parties under the family law statutes first. I will then turn to Ms. Barreto’s claim for damages arising from various IPV-related torts.

29The issues to be determined are as follows:

1. Divorce

2. Spousal support for the Wife

a. Has the Wife established entitlement to spousal support?

b. Should income be imputed to the Wife for the calculation of spousal support?

c. Should $1,300 a month be added to the Husband’s reported income?

d. Should the Husband pay retroactive spousal support and if so, what is the appropriate quantum and for what time frame?

e. What is the appropriate quantum and duration of spousal support, and should there be a lump sum component?

3. Disposition of the matrimonial home

a. Should the matrimonial home be sold?

b. Does the Wife have the right to buy out the Husband’s interest or a right of first refusal?

c. What are the appropriate terms for the sale of the matrimonial home?

d. What is the appropriate distribution of net sale proceeds?

4. Husband’s claim for occupation rent

5. Post-separation adjustments and matrimonial home contents

6. Tort claims by Wife

a. Intentional infliction of emotional distress

b. Physical assault and battery

c. Public disclosure of private facts and breach of confidence

d. Damages

e. Limitations Act, 2002, S.O. 2002, c. 24, Sched. B defence

V. ​Evidence and Analysis

Issue One: Divorce

30Mr. Salema seeks an order for divorce. Ms. Barreto consents.

31I am satisfied that the requirements in the Divorce Act, R.S.C. 1985, c. 3 have been met.

32A divorce is granted.

Issue Two: Spousal Support for the Wife

a) Entitlement to Spousal Support

33Ms. Barreto must establish entitlement to spousal support as a first step.

34There are three conceptual bases for entitlement to spousal support, as outlined in Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420 (“Bracklow”), at para. 15:

a. Compensatory: this is grounded in the factors and objectives in ss. 15.2(6)(a) and (b) of the Divorce Act. In considering the means, needs, and circumstances of the spouses, the court must recognize that a spouse’s inability to support him or herself may relate to foregoing career opportunities during the marriage to care for the home and family;

b. Contractual: this is grounded in s. 15.2(4)(c) of the Divorce Act whereby the parties may have made an agreement before or during the relationship, which creates or negates a support obligation; and,

c. Non-compensatory: this is a needs-based claim, which is grounded in the objectives of

ss. 15.2(6)(c) and (d) of the Divorce Act.

35The parties’ relationship was one where Ms. Barreto was primarily responsible for looking after the home and most domestic related day-to-day matters, and Mr. Salema was the sole income earner. However, the parties diverge on whether and to what degree Ms. Barreto was required to look after the family’s domestic needs as opposed to pursuing her career as a child psychologist trained in India. Mr. Salema testified that he also assisted with some of the domestic activities, and while he did not dispute Ms. Barreto’s primary role, he stated that, while they lived in India, they could have hired domestic help so she could pursue her career.

36The parties’ evidence does not differ as to Mr. Salema’s career trajectory and the fact that when they moved locations, it was to accommodate his job opportunities. However, the parties’ evidence diverges as to whether Ms. Barreto was always required to move with Mr. Salema for his job placements.

37At the time of marriage, Ms. Barreto was a qualified child psychologist in Goa, India, having graduated from university two years earlier with high honours. As a child psychologist, she coordinated a helpline for suicidal children and enjoyed working with children.

38Ms. Barreto says she was fully responsible for setting up both matrimonial homes (India and Canada), budgeting, cleaning, cooking, organizing and planning trips, and helping Mr. Salema apply for and obtain jobs.

39Mr. Salema acknowledges that, at the time of marriage, Ms. Barreto’s salary was INR 7,000-8,000 a month (INR 82,000 a year), whereas his job earned him over five times that amount. Therefore, he notes, Ms. Barreto did not give up a high paying job when she married him. Mr. Salema agreed that his jobs entailed travel to projects around the world. These projects were time limited. In other words, when the project was finished, he would be relocated to another project.

40Mr. Salema also acknowledged that, upon marriage, they moved to another state in India, called Puna, for his new job project. This is where they rented an apartment. Ms. Barreto left her child psychologist position in Goa to accompany Mr. Salema and set up their home.

41From June 2003 to June 2004, they lived in their rental apartment in Puna, India. Ms. Barreto testified that she did not seek work because this was to be a temporary location and they were planning to move away from Puna. She did not update her skills as a psychologist because they were not yet out of date. She acknowledged that she was not forced to undertake the domestic chores and that she was discharging her wifely duties. She explained that it took a lot of work to set up their home.

42The parties then moved to Bangalore, India from June 2004 to December 2004 for Mr. Salema’s work. Ms. Barreto did not seek work in Bangalore because the move was supposed to be

temporary, and they were now living in a different state. Her skills were still current. Again, she took full responsibility for all the domestic aspects of their life together.

43From January 2005 to June 2005, they returned to their rental unit in Pune, India. Ms. Barreto explained that she had to re-establish their home life and took full responsibility for the domestic work. Mr. Salema’s work schedule was generally from morning until around 10:00 p.m. Ms. Barreto’s domestic work included planning their weekends. During the weekend, they would do chores in the city one day and Mr. Salema would rest the other day. Ms. Barreto explained that she did not want to hire domestic help because only migrant workers were available, and she had safety concerns. They were not in the city and there was no security in their building, so she felt vulnerable on her own all day.

44Mr. Salema was then sent to Luxembourg in or around August 2006 to April 2007, again for work. Ms. Barreto accompanied him. According to Ms. Barreto, she knew this to be a temporary placement and Mr. Salema told her they could be moving at any time, depending on what projects he was assigned and where they were located. In any event, she did not have a work visa to work in Luxembourg. She explained that they decided to concentrate on Mr. Salema’s career as he was earning good money.

45From April 2007 to February 2008, they returned to Pune, India upon completion of the Luxembourg project. At this time, Ms. Barreto applied for a job at a business school as a counsellor but was unsuccessful. She also applied for a position at the local hospital which was under construction. However, they moved before the hospital was completed. She explained that the hospital was the only place in their local community where there might have been a job suitable to her qualifications.

46In August 2007, they both received visas for the United States arising from a potential job for a client Mr. Salema worked for in Luxembourg. However, that position did not materialize. They were expecting to move to the United States at this point in time.

47In February 2008, they moved to the United States for yet another job project. They never returned to India. While Mr. Salema had a work permit, Ms. Barreto did not. She was travelling on a visitor’s visa and could not legally work in the United States. According to Ms. Barreto, they were living in a state of flux during this period, prior to moving to Canada in August 2010.

48While living in the United States, Mr. Salema indicated that he wanted to move to Canada to live and work.

49Ms. Barreto helped Mr. Salema apply for a Canadian passport and he received it. While Ms. Barreto would have preferred to either stay in the United States or move to Luxembourg, Mr. Salema made the decision to move to Canada.

50In or around August 2010, they moved to Canada. They initially moved into a rental unit on Sherbourne Street in October. Ms. Barreto explained that, initially, she was on a tourist visa, until January 2012 when she obtained her permanent residence. Up to that time, she could neither attend school nor work. Mr. Salema initially had a job but lost it in 2012. Of note, in or around

2013 is the period during which Ms. Barreto claims that Mr. Salema’s behaviour towards her deteriorated, making her feel insecure. Mr. Salema testified that it was Ms. Barreto’s behaviour towards him that was problematic.

51In March 2016, they moved into the matrimonial home. By this time, Mr. Salema was employed by Ethoca. He continues to be employed by Ethoca.

52When they moved to Canada, Ms. Barreto did not have a driver’s licence in Canada, nor access to a vehicle, so she had to take public transit. She spent considerable time browsing auction sites for good deals on furnishings and decorative elements like china figurines, crystal bowls, and the like. Once she successfully bid for these items, Mr. Salema would pick them up. They purchased several items this way.

53In December 2017, Mr. Salema left the relationship for the first time, without any warning. This precipitated Ms. Barreto’s attempts to become self-sufficient. In February 2018, he returned.

54Between 2018 and 2020, Ms. Barreto took a number of courses to upgrade her qualifications. She produced certificates of completion. She was working towards becoming employable in Canada in her general field of therapy, since the Ontario College of Psychologists did not recognize her credentials and qualifications as a psychologist in India.

55She also explored what it would take to become a registered psychologist in Ontario. She found out that she would need a Master’s degree and a PhD, which would take between 5 and 7 years to obtain. As she felt this was too long, she applied to the Ontario College of Psychotherapists program for dynamic therapy. However, this was a five-year course and was expensive. She tried to attend an 18-month-long bridging program in 2020 to become registered as a psychotherapist. However, this program required 1,000 hours of supervised field work and she would still not qualify as a registered psychotherapist.

56She began volunteering as a facilitator for anger classes at A-1 Counselling Centre in 2018. This role began as an internship.

57Ms. Barreto was hired as an independent contractor counsellor at A-1 Counselling in June 2018. This was on an as-needed and part-time basis. Her remuneration was $30 an hour. She estimated that between 2018 and 2020 she earned about $5,000 in total. When the COVID-19 pandemic began, the Counselling Centre shut down entirely and never re-opened.

58Ms. Barreto also applied in late 2019 or early 2020 for a position as a casual counsellor with The Life Wellness Place. This organization provided supportive counselling for refugees, funded by the government. She would be contacted if a refugee who spoke her first language needed support. However, while she was on the roster and “on call”, she never received any calls. She believes this organization also closed due to the pandemic.

59She testified that, since the date of separation, she has been applying for jobs using three job platforms: Indeed, Job Bank Canada and one other. She mainly resorts to Indeed for job opportunities. She does not have a LinkedIn account because she has no history or profile given her long absence from the workforce, she says.

60Mr. Salema stated that it was solely Ms. Barreto’s choice not to upgrade or seek work opportunities at the various locations and, instead, to devote her time to household matters, including planning trips for them to take. He testified that he could have hired domestic help in India to free up Ms. Barreto to resume her career in the mental health field and they would have been better off financially, given the low cost of domestic help in India. He stated that it was Ms. Barreto’s choice to cook him meals every day, striving to make different dishes for his enjoyment. He did not need her to do this. He testified that he did not need Ms. Barreto’s help during his career developing years to advance his prospects and that she did not perform any actions that “financially benefited” the relationship. He testified that Ms. Barreto could not possibly have helped him to advance his career given that she had no background in his field of software engineering, though under cross examination, he admitted that she helped him to find a job in Canada in 2010 such as by conducting internet searches and reviewing his resume.

61Mr. Salema’s characterization of their past domestic life suits his present position but does not reflect the reality, as he admitted, that Ms. Barreto was largely responsible for the domestic aspects of their joint life and accompanied him to the various locations of his work projects, while his career blossomed into his current success. While Ms. Barreto was not “forced” to undertake domestic chores and follow Mr. Salema, there is no doubt that Ms. Barreto ultimately sacrificed her career in India as a psychologist and with the children’s suicide helpline in exchange for doing so. Ms. Barreto’s sister, Loraine Alberto, supports Ms. Barreto’s testimony that she was ambitious and intended to pursue her career as a child psychologist in India.

62I am also satisfied that she helped Mr. Salema obtain employment throughout their marriage by helping him prepare for interviews and look for job opportunities, particularly when they moved to Canada. While Ms. Barreto was not forced to undertake the domestic duties (which she viewed as part of her role as a wife), Mr. Salema was content to allow this division of labour to develop and persist for over 17 years. He has financially benefitted from this division of labour, while Ms. Barreto has been economically disadvantaged by it and continues to experience those financial consequences and hardship arising from the marriage. Prior to the marriage, Mr. Salema was earning about US$80,000. At the time of separation, he was earning CAD$160,000. As of 2023, he is earning over CAD$180,000.

63Furthermore, up until August 2010, Ms. Barreto followed Mr. Salema to various countries in order to pursue his employment. Ms. Barreto was not legally permitted to work in the other countries, until she gained her permanent residence in Canada. In the absence of a work permit, this pattern of temporary relocations made it practically impossible for Ms. Barreto to re-establish her career as a psychologist or to gain any employment at all. The lack of a work permit resulted in her being out of the workforce for considerable periods of time.

64Finally, when the parties ultimately moved to Canada, Ms. Barreto’s professional and academic credentials as a psychologist were not recognized by the College of Psychologists. She attempted to obtain jobs in the general field of counselling, but the pandemic interfered.

65Of import to this issue, Ms. Barreto suffers from serious mental health issues which, as will be seen, I attribute to the IPV perpetrated by Mr. Salema. She was fully dependent on Mr. Salema’s financial support throughout their marriage, for over 17 years, despite efforts to obtain employment

and upgrade her qualifications from time to time. She is currently unemployed and continues to make efforts to gain employment.

66Considering these factors, I am satisfied that Ms. Barreto has established a prima facie

entitlement to needs-based and compensatory spousal support.

b) Imputation of Income to Wife

67In the alternative to his plea that Ms. Barreto’s request for future spousal support be dismissed, Mr. Salema asks this court to impute income to Ms. Barreto on the basis that she was and is intentionally unemployed.

68Mr. Salema requests that the court impute income to Ms. Barreto as follows:

a. $15,000 for 2020;

b. $30,000 for 2021;

c. $30,000 for 2022;

d. $33,100 for 2023.

69Mr. Salema’s rationale for these amounts is based roughly on full-time minimum wage employment, recognizing that the date of separation is August 21, 2020.

70Drygala v. Pauli, 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.) (“Drygala”), at para. 45, sets out the principles to be considered. While this case dealt with imputing income to a parent for child support purposes, the principles have been applied when imputing income to a spouse for spousal support purposes:

When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97, 14 R.F.L. (5th) 9, 204 Sask. R. 268 (Q.B.).

I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

71Notably, there is no requirement that Mr. Salema prove that Ms. Barreto is acting in bad faith in order to prove that she is intentionally unemployed or underemployed: McBennett v. Danis, 2021 ONSC 3610, [2021] O.J. No. 2796 (“McBennett”), at para. 306; Drygala, at para. 36.

72The court cannot arbitrarily select an amount as imputed income. Rather, there “must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence”: Drygala, at paras. 44-45.

73Ms. Barreto submits that no income should be imputed to her because she suffers from serious psychiatric disorders that prevent her from working. She relies on Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920 (“Leskun”). Furthermore, she has been unable to re-qualify as a registered psychologist or psychotherapist and her successful, if brief, periods of employment were cut off by the COVID pandemic and did not yield much income due to their part time or as-needed nature.

74In Leskun, at para. 27, the Supreme Court stated that the failure by a dependent spouse to achieve self-sufficiency is not a breach of a duty but rather one factor to consider in determining the right to support, its duration and its amount. The courts have “an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act”: Leskun, at para. 27, citing Moge v. Moge, [1992] 3

S.C.R. 813, at p. 866.

75In Leskun, at para. 21, the Supreme Court also recognized that the “emotional consequences of misconduct and the misconduct itself” could be highly relevant if the spousal abuse rendered a spouse unemployable. However, in this case, as shall be seen, Ms. Barreto has failed to prove that she has been rendered unemployable by the conduct of Mr. Salema. She testified that she required at least one year of therapy before she could re-train and re-enter the workforce.

76Ms. Barreto relies on an extract from Ludwig v. Ludwig, 2022 ONSC 3359, [2022] O.J. No. 2587, at para. 279. It is helpful to summarize the entirety of paras. 279-280.

77The onus is on the party requesting the imputation of income to establish an evidentiary basis for this finding. The court retains discretion as to the amount of the imputed income. The court must impute income in an amount that is reasonable based on the evidence. The court may impute income in excess of a spouse’s presumptive income where the amount is supported by the evidence and consistent with the goal of establishing fair support based on the financial means of the parties: Ludwig, at para. 279, citing McBennett, at paras. 303-304.

78There is a duty on the parties to maintain or actively seek out reasonable income-earning opportunities which will maximize their earning potential: McBennett, at para. 306; Ludwig, at para. 279.

79A party is intentionally under-employed where they earn less than they are capable or earning, considering all the circumstances. This includes where they choose not to work when capable of earning income. However, intentional underemployment excludes situations that are beyond a party’s control: McBennett, at para. 306; Ludwig, at para. 279.

80The factors to be considered in determining a spouse’s earning capacity includes “their age, education, health, work history, the availability of work that is within the scope of the party’s capabilities and the amount of income that the party could reasonably earn if they worked “to capacity”: Ludwig at para. 279, citing McBennett, at para. 306.

81Where a spouse experiences an involuntary or temporary loss of employment, the spouse may be given a grace period to seek out income-earning opportunities at a similar rate in their field before income will be imputed: Ludwig, at para. 279; McBennett, at para. 306.

82Finally, where a spouse asserts that their medical condition is a relevant factor in assessing their earning capacity (and ability to work), they bear the onus of proving that they suffer from a disability and that the disability is the cause of their inability to work or otherwise impairs their ability to work. As stated at para. 280 in Ludwig:

This onus cannot ordinarily be discharged solely on the basis of the party’s testimony…[I]t is simply not sufficient for [the party making the claim] to testify that [they] cannot work. [The party] would need to produce medical records and expert evidence about [their] condition, prospects and treatment. [Citations omitted]

83Ms. Barreto did not prove that she is incapable of working or that her earning capacity is impaired due to a disability. While her litigation expert, Dr. Bruce Cook, provided a diagnosis and prognosis of her mental health conditions, and expressed an opinion on causation relating to her harms, he did not express an opinion on whether the disorders impacted her ability to work; nor did her treating counsellor, Angela Slingerland. Ms. Barreto herself testified that she had been able to attend at the A-1 Counselling Centre to volunteer as an intern and that she signed a contract for employment as an independent contractor counsellor there in June 2018. While that job opportunity ended prematurely due to the pandemic, Ms. Barreto failed to prove that she is unable to work as a result of a disability, or that she requires therapy as a precondition to being able to work.

84I must also consider the fact that Ms. Barreto had no stream of income from the date of separation in 2020 until the order of Myers J. in early 2023 ordering Mr. Salema to pay spousal support. Ms. Barreto did not have the funds to pay for private therapy or re-train. However, Mr. Salema had been, prior to the support order, paying the carrying costs of the matrimonial home and some of Ms. Barreto’s expenses through deposits to their joint bank account. Ms. Barreto had to depend on her limited fixed savings for her other living expenses and she did not have enough to pay for therapy or enroll in a post-secondary program. I must also consider Ms. Barreto’s age, the number of years she was out of the workforce, her education, experience, skills, and health when determining what is reasonable in the circumstances.

85I must also consider my findings expressed later in these Reasons that Ms. Barreto suffered IPV and experiences serious mental disorders and psychological dysfunction as a result of that violence. Balanced against this finding is the fact that Ms. Barreto has been receiving supportive counselling and has attended group therapy.

86Finally, Ms. Barreto is entitled to a reasonable period of time in order to find a job that is commensurate with her skills and (her now out of date) training as a child psychologist. In the event she cannot find such a job within a reasonable time period, she must find another job path.

87I am satisfied on the evidence that Ms. Barreto’s employment opportunities were impaired by the COVID-19 pandemic. Ms. Barreto had secured a position as an independent contractor with A-1 Counselling Services on a part-time basis at $30 per hour, but the centre closed as a result of the pandemic. Ms. Green-Smith’s evidence corroborated the fact that this centre closed due to the pandemic. She confirmed that the internships were not paid positions. She recalled that, at some point in time, Ms. Barreto was hired as an independent contractor, but had no information about her pay.

88It was reasonable for Ms. Barreto to enter into this job relationship with A-1 Counselling Services, initially as an intern and then on a fee for service basis, given the fact she had been out of the counselling/psychological services workforce for many years, did not have her professional and academic qualifications recognized in Ontario, and hence had to start from the ground floor, so to speak. The fact that she did not make much income from this position does not detract from the reasonableness of taking it, in light of the personal and professional circumstances according to which she needed to gain experience in Canada.

89In my view, a reasonable transition period, based on Ms. Barreto’s evidence, which I accept, and which was not seriously challenged, is about two and a half years from the date of separation in the circumstances of this case

90Therefore, I decline to impute income, as requested by Mr. Salema, on a retroactive basis to and including December 31, 2022.

91In her DivorceMate calculations submitted at trial (Exhibit D), Ms. Barreto concedes that her income should be imputed at $35,000 effective January 1, 2023. Given her abilities as already stated, I accept that this is an appropriate income to impute from and after 2023, subject to variation when she finds full-time employment. She is capable of, at minimum, minimum wage work. Indeed, in her terminated contract with A-1 Counselling, her hourly rate was stipulated at $30 per hour, albeit on an as-needed basis. Furthermore, her evidence is that, should she become qualified as a behavioural analyst, her projected full-time income would be around $65,000 a year. This determination also shows that Ms. Barreto is striving to become self-sufficient.

92The sum of $35,000 a year exceeds that sought by Mr. Salema on a go-forward basis. However, in light of Ms. Barreto’s admission and the relevant factors set out in Drygala and other cases, this is a reasonable figure, as it roughly approximates full-time minimum wage work or part- time work, consistent with her prior position at A-1 Counselling Centre.

c) Imputation of Income to Husband

93Ms. Barreto requests that the court impute the sum of $1,300 per month to Mr. Salema for 2023 and 2024, which funds he receives from his current partner who is sharing his residence with him. Mr. Salema submits that this is an expense saving strategy and not an income generating one. He stated that he does not claim this sum as income on his tax return because it is not really income.

94I disagree. Receiving income from his partner reduces his daily living expenses and is akin to rental income. The fact that he does not claim it as “other” income on his tax return is not

determinative. The sum of $1,300 a month will be added to Mr. Salema’s income commencing January 1, 2023.

d) Retroactive Spousal Support

95Ms. Barreto initiated her application seeking spousal support on November 17, 2021. In her original application, she sought a temporary and final order for retroactive spousal support from the date of separation and on a go-forward basis.

96The court in MacKinnon v. MacKinnon, (2005), 2005 13191 (ON CA), 75 O.R. (3d) 175 (C.A.) (“MacKinnon”) clarified that retroactive spousal support refers to the period of time between the date of separation and the first notice of the claim for spousal support. Spousal support for the period following the notice of claim is not “retroactive”. Therefore, Ms. Barreto need only satisfy the criteria for awarding retroactive spousal support for the period prior to November 17, 2021.

97The court has discretion to award or deny retroactive spousal support. The court will consider the following factors outlined in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 (“Kerr”), at para. 207:

a. The needs of the recipient;

b. The conduct of the payor;

c. The reason for the delay in seeking support; and

d. Any hardship on the payor spouse if an order were made.

98In MacKinnon, at paras. 22-23, the Court of Appeal stated that “[a]bsent any unusual reason arising from the factors and objectives set out in the Divorce Act”, an applicant is “presumptively (…) entitled to prospective support from the date of notice that a support claim is being pursued”. This encourages a payor spouse to make early financial disclosure and move expeditiously to a resolution. This point was emphasized in Marinangeli v. Marinangeli, (2003), 2003 27673 (ON CA), 66 O.R. (3d) 40, at para. 72 which states that the decision to award retroactive spousal support must be exercised sparingly.

99In Giguere v. Giguere, [2003] O.J. No. 5102 (S.C.), at para. 30, Marshman J. observed that:

In my opinion, the decision to award spousal support should be exercised very sparingly prior to demand. In most cases, the factors which militate against a retroactive award usually favour the payor in the pre-demand stage. On the other hand, factors in favour of retroactivity usually favour the payee after demand has been made.

100In Thompson v. Thompson, 2013 ONSC 5500, [2013] O.J. No. 4001 (“Thompson"), at para. 73, Chappel J. noted that the usual time to start spousal support is the commencement of proceedings, unless there is a reason for making the order start on a different date.

101In undertaking this analysis for retroactive (pre-notice) spousal support, the considerations are different from those applicable in child support cases. The payor spouse has two interests that must be factored into the analysis: having certainty with respect to one’s legal obligations and creating an incentive for the claimant to advance their claims for spousal support promptly: Thompson, at para. 74.

102In my view, this is not one of those cases in which discretion ought to be exercised to award retroactive spousal support for the period predating notice. Using the Kerr factors as developed by the jurisprudence, I find that:

a. Ms. Barreto demonstrated need insofar as she only had limited savings to survive on pending receipt of spousal support after Mr. Salema declined to make further deposits into their joint bank account in 2021. Conversely, Mr. Salema paid the entire carrying costs of the matrimonial home in which Ms. Barreto resided alone. He also deposited

$5,000 per month into their joint bank account from the date of separation to cover costs of the matrimonial home and for some of Ms. Barreto’s living needs up to in and around October 2021 (by which time both parties had retained lawyers). He was also able to have some of Ms. Barreto’s expenses, such as Dr. Cook’s expert report, and some of Ms. Barreto’s medical, pharmacology and therapy expenses reimbursed from his workplace insurance which he intended to replace spousal support. By this time, his employer, Ethoca, was acquired by MasterCard (maintaining the same business name) and he had a new EAP. Overall, Ms. Barreto’s need is balanced out by the fact that Mr. Salema provided for those needs on a short-term basis from the date of separation until he stopped making deposits into the joint account.

b. Mr. Salema did not pay spousal support initially but rather deposited funds into the joint account to carry the matrimonial home and pay for some of Ms. Barreto’s living needs. He also maintained Ms. Barreto on his health insurance benefits which Ms. Barreto used (including to pay for Dr. Cook’s assessment). Ms. Barreto has not proven misconduct.

c. Ms. Barreto has not provided a satisfactory reason for delaying her application. She stated that she was hoping that the parties would reconcile; however, there was no indication from Mr. Salema that he was prepared to reconcile after the date of separation. He rebuffed any such suggestion.

d. While Mr. Salema was (and is) employed in a job that pays greater than minimum wage, it would be a hardship to impose a lump sum spousal support award from the date of separation to the end of November 2021, in addition to the lump sum spousal award he will be required to pay for the period postdating the commencement of the application.

e) Quantum and Duration of Spousal Support

103Fixing the quantum and duration of spousal support is in the discretion of the court, guided by the factors set out in the Divorce Act. The Spousal Support Advisory Guidelines (“SSAG”)

inform the exercise of that discretion. The SSAGs are a useful litmus test when determining the quantum and duration of spousal support.

104Pursuant to ss. 15.2(1) and (2) of the Divorce Act, the court has jurisdiction to make either an interim or final order requiring a spouse to pay spousal support in an amount and duration the court finds reasonable.

105In making a spousal support order under s. 15.2 of the Divorce Act, the court shall consider the “condition, means, needs, and other circumstances of each spouse”, taking into account the following factors:

a. the length of time the spouses cohabited;

b. the functions performed by each spouse during cohabitation; and

c. any order, agreement or arrangement relating to the support of either spouse: s. 15.2(4) of the Divorce Act.

106The relevant objectives of a spousal support order under s 15.2(6) of the Divorce Act are as follows:

a. recognize any economic advantages and disadvantages to the spouses arising from the marriage or its breakdown;

b. apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c. relieve any economic hardships of the spouses arising from the breakdown of the marriage; and

d. in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

107All of the statutory objectives set out in s. 15.2(6) of the Divorce Act must be considered; however, no single objective is paramount: Bracklow, at para. 35.

108The misconduct of a spouse is not a relevant factor in determining the quantum and duration of spousal support: s. 15.2(5) of the Divorce Act.

109Based on my findings above, I conclude as follows:

a. This was a 17-year and 2.5-month marriage;

b. Mr. Salema was the income earner throughout the marriage. Ms. Barreto was primarily responsible for the household responsibilities and supporting Mr. Salema in his career;

c. By following Mr. Salema to his various workplaces, Ms. Barreto lost her career in India. She was unable to work or study in many of those places as she had no work or study permit, until after they moved to Canada; and

d. The only order relating to support is the temporary order of Myers J. in which His Honour ordered Mr. Salema to pay $3,000 a month from January 1, 2023 pending a trial decision.

110I find that a spousal support order in favour of Ms. Barreto at the mid-range of the SSAGs from December 1, 2021 and for a period of 11 years is appropriate, after considering the above factors and the objectives of the Divorce Act. This award will:

a. recognize that Ms. Barreto has a reasonably strong compensatory claim for support;

b. take into account the parties’ standard of living prior to separation;

c. consider the fact that there is property to divide and Ms. Barreto will receive an equalization payment;

d. recognize that Mr. Salema benefitted from the marriage insofar as he was able to concentrate on his career, move anywhere his employer sent him around the world, and thrive in his career such that he continues to be employed by the same employer, Ethoca, and has enjoyed a salary that increases each year, often beyond the cost of inflation. On the other hand, Ms. Barreto has suffered an economic disadvantage. She is no longer able to pursue her profession as a psychologist, established in India, as the Ontario College of Psychologists does not recognize her academic and professional credentials from India. She has been out of the workforce for more than 17 years. She will now have to either re-qualify or, more likely, pursue a career in a related field (e.g., behavioural analyst) that will not likely have the same earning capacity as a registered psychologist. In other words, Mr. Salema has the ability to pay, and Ms. Barreto has demonstrated need and a more limited ability to earn income in the future;

e. recognize there are no children of this marriage and therefore no child support obligation arises;

f. relieve Ms. Barreto’s economic hardship arising from the breakdown of the marriage; and

g. by restricting the duration to just under the mid-way point suggested by the SSAGs and by imputing income to Ms. Barreto, provide her with incentive to gain economic self-sufficiency in a timely manner insofar as is reasonably practical in these circumstances.

111Based on my findings and Mr. Salema’s income as reflected on his line 1500 total income in his tax returns and notices of assessment, plus “other” income received from India (and reflected in his DivorceMate calculations, filed as Exhibit C), and his imputed income for 2023 of $1,300 per month, it is my view that Ms. Barreto is entitled to mid-range support using the “without child

support” formula based on incomes from December 1, 2021-2023 of $174,110, $176,083, and

$185,196 plus $15,600 (imputed) for a total of $200,796, respectively. Against this, Mr. Salema is entitled to a set off reflecting his spousal payments made pursuant to Myer J.’s order dated January 6, 2023, for the sum due in the monthly amount of $3000 commencing January 1, 2023 and ongoing insofar as paid to the date of this judgment.

112Mr. Salema asks that if the court awards spousal support, his approximate marginal tax rate be taken into account: Hume v. Tomlinson, 2015 ONSC 843, [2015] O.J. No. 639, at para. 12. He submits that Ms. Barreto’s claim, after deducting his marginal tax rate, be fixed at $55,991.71. This calculation also takes into account the spousal support he has been paying pursuant to the order of Myers, J.

113I have used DivorceMate to calculate the lump sum for spousal support owed by Mr. Salema to the end of 2023, after tax adjustments. On this latter point, it is appropriate that the lump sum amount to be paid by Mr. Salema reflects the fact that he has already paid income tax on these amounts, while Ms. Barreto will effectively receive these amounts “tax free”.

114Ms. Barreto is entitled to the spousal support owed by Mr. Salema, by way of a lump sum payment, from December 1, 2021, reflecting the tax adjustments, in the amount of:

a. 2021 – $3,008 x 1 month = $3,008

b. 2022 – $3,049 x 12 months = $36,588

c. 2023 – $2,579.50 x 12 months = $30,954 less $36,000 paid pursuant to the order of Myers J. for a credit owing to Mr. Salema of $5,046²

115The parties agree that Mr. Salema is entitled to a tax adjustment on any lump sum payment of spousal arrears. Ms. Barreto suggested that they apply for a retroactive tax adjustment. However, that program is only available for two years prior to the current year. Furthermore, Mr. Salema has already been paying spousal support since January 1, 2023. However, for the 2024 tax year and on a go-forward basis, the parties must ensure that Mr. Salema records the spousal support payments he is making so he obtains the appropriate deduction and Ms. Barreto claims the spousal support she has received so that she pays the appropriate amount of income tax on that sum, until Mr. Salema’s spousal support obligation ends.

116The total amount of spousal support to be paid by Mr. Salema to Ms. Barreto on a lump sum basis is therefore $34,550 ($3,008 plus $36,588 minus $5,046). This sum shall be paid by way of lump sum, now or from the sale proceeds from the matrimonial home otherwise owing to Mr. Salema, at his option. On an ongoing basis, commencing January 1, 2024, Mr. Salema must pay

spousal support in the sum of $4,171 per month taking into account that these funds will be deductible to Mr. Salema, and taxable to Ms. Barreto.³

117With the release of this judgment, Mr. Salema’s spousal support obligations under Myers J.’s temporary order end and are superseded by this judgment. Mr. Salema will receive credit for the monthly payments he has made in 2024, which will be deducted from his ongoing spousal support payments. On a go-forward basis, commencing with the 2024 calendar year, the parties will make the appropriate tax filings. Therefore, the 2024 spousal support and future years of spousal support will not reflect the deduction I have made for the lump sum past amount payable. The income tax returns, properly filed, will reflect the appropriate tax adjustments, deductible to Mr. Salema and taxable to Ms. Barreto.

118On an ongoing basis, Ms. Barreto’s income will be imputed at $35,000 per annum, subject to variation should she earn income in excess of that amount and/or should Mr. Salema’s income change.

119Under the SSAG, the duration of spousal support for a 17.25 year marriage is between 8.625 and 17.25 years from the date of separation, subject to variation and possibly a review.

120Ms. Barreto testified that she has been out of the work field for 21 years. This is a bit exaggerated as she did obtain some, albeit limited, experience between 2018 and 2020. She would like to train to become a behavioural analyst. She said it would take at least three years to transition into full-time work, including therapy for one year, which she cannot afford, and successfully completing a behavioural analysist course and training qualifications, which will take approximately two additional years. She testified that a behavioural analyst can make up to

$65,000 a year. She has ruled out working in general psychotherapy as she can no longer deal with trauma issues, given her own history.

121Mr. Salema submits that, if I award spousal support in favour of Ms. Barreto, it be for a nine-year period starting on the date of separation and ending on August 31, 2029. Ms. Barreto’s draft order requests spousal support on an indefinite basis, or alternatively for a nine-year period ending August 31, 2029 plus a lump sum of $100,000 (in addition to spousal support owing for the period prior to the date of judgment).

122Based on my findings that Ms. Barreto gave up her career as a psychologist in India so that Mr. Salema could advance his career which took them to various locations and ultimately Canada, where her professional qualifications were not recognized, and the evidence, including Ms. Barreto’s intention to pursue employment after upgrading her skills and qualifications to obtain work in a comparable field to her past training, I find that the appropriate duration for spousal

support is 11 years from the date of separation, which is just under the halfway point under the SSAG. Indefinite spousal support is not warranted in this case.

123Mr. Salema’s last monthly spousal support payment will be due on August 1, 2031.

124The parties shall exchange income tax returns no later than July 1st of each year, along with notices of assessment, so long as spousal support is payable.

Issue Three: Disposition of the Matrimonial Home

125Mr. Salema seeks the sale of the matrimonial home under ss. 2 and 3 of the Partition Act,

R.S.O. 1990, c. P.4. He has provided a detailed proposal for the listing and terms of sale. As of January 15, 2024, the outstanding mortgage was $260,695.18. The maturity date is December 1, 2024.

126Ms. Barreto does not object to the sale of the matrimonial home. However, she seeks a right of first refusal to buy the matrimonial home. She currently lives in the matrimonial home and states that this is her safe place. She states that if she must move out, it will impact her mental health adversely. In contrast, Mr. Salema is in a stable situation and has the means to afford his own accommodations.

127Mr. Salema has a right to compel the sale of the matrimonial home under the Partition Act. There is no allegation of malicious, vexatious or oppressive conduct in relation to the sale itself. The court does not have jurisdiction to impose a right of first refusal or to force the parties to participate in a buy out of the matrimonial home by one of the parties: Sanvictores v. Sanvictores, 2022 ONSC 2673, [2022] O.J. No. 2438, at para. 13; Laurignano v. Laurignano, 2009 ONCA 241,

[2009] O.J. No. 1111 (“Laurignano”).

128Furthermore, Ms. Barreto’s experts did not address the potential impact on her mental health should she be forced to move out from the matrimonial home. I am not persuaded by Ms. Barreto’s own evidence on this issue. Mr. Salema is entitled to realize his equity in the matrimonial home by way of a sale.

129Accordingly, an order is granted requiring the sale of the matrimonial home.

130However, while the court cannot impose a right of first refusal or a forced buy out, there is nothing to prevent Ms. Barreto or Mr. Salema from submitting their own offer to purchase the matrimonial home: Laurignano, at para. 5. I am prepared to delay the listing process by 30 days so that Ms. Barreto can attempt to secure a pre-approved mortgage, now that she will have an order relating to spousal support providing her with a guaranteed income stream in accordance with my findings.

131The matrimonial home shall be sold in accordance with the following process proposed by Mr. Salema as Schedule A to his draft order, subject to the following changes:

a. Item 3 shall be changed to read: “The listing of the Home will be delayed for 30 days from the execution of the listing agreement referred to in Item 2.”

b. Item 4 shall be changed as follows: “Prior to listing on the market, the parties shall ask their Agent to provide an opinion in writing as to the listing price and reasonable sale price to use to list the Home.” The second line is struck, being: “This opinion shall be used as evidence should there be an issue of a party refusing to accept an offer.”

c. Item 7 shall be struck and the following substituted: “The parties shall follow the recommendation of their real estate Agent, made in writing, with respect to acceptance, rejection, or counter-offer regarding any offer to purchase received. For clarification, if their Agent recommends the acceptance of an offer to purchase, the parties shall accept that offer. If their Agent recommends that they issue a counter-offer, the parties shall issue the recommended counter-offer. If their Agent recommends rejection of an offer, the parties shall reject that offer.”

d. Item 9: “For clarification, any further encumbrance, debt or other payment owing by either or both parties shall include any awards of money ordered (judgment debt) but shall not include future spousal support which has not yet crystallized on the date of closing of the matrimonial home sale.”

132I have attached the terms as Schedule A to these Reasons, to be modified as stated above. Notably, the matrimonial home will be sold in an “as is” condition, and Ms. Barreto must cooperate with the Agent’s plan for showings of the matrimonial home.

Issue Four: Occupation Rent

133Mr. Salema claims occupation rent from Ms. Barreto who has been living in the matrimonial home since the date of separation. He seeks 50% of the market rental value of the matrimonial home from the date of separation to the date Ms. Barreto moves out.

134Mr. Salema reserved his right to claim occupation rent by letter dated September 22, 2021 from his former lawyer to Ms. Barreto’s former lawyer. Mr. Salema then made a request for occupation rent through his Answer dated December 17, 2021.The matrimonial home is owned by the parties as joint tenants. Mr. Salema has not lived there since on or about August 21, 2020.

135He claims $19,880 from September 2020 to December 2021, $15,090 for 2022, and

$15,468 for 2023. From January 1, 2024 onwards he seeks the monthly sum of $1,372.50. He notes that the current carrying costs are nearly $3,400 a month.

136The court has the discretion to award occupation rent in a family law proceeding, if it is reasonable and equitable to do so: Griffiths v. Zambosco (2001), 2001 24097 (ON CA), 54 O.R. (3d) 397 (C.A.) (“Griffiths"), at para. 49. It is no longer necessary that the claimant prove ouster for the court to award occupation rent: Saroli v. Saroli, 2021 ONSC 4450, [2021] O.J. No. 3832 (“Saroli”), at para. 310. The court must look at the full financial context of the parties in determining whether it would be fair and equitable to award occupation rent: Saroli, at para. 311.

137In Griffiths, at para. 49, the Court of Appeal set out the following non-exhaustive list of factors to be considered when determining whether occupation rent ought to be awarded in the context of a family law dispute:

a. The timing of the claim for occupation rent;

b. The duration of the occupancy;

i. The inability of the non-resident spouse to realize on their equity in the property;

ii. Any reasonable credits to be set-off against occupation rent;

c. Any other competing claims in the litigation.

138In Higgins v. Higgins (2001), 2001 28223 (ON SC), 19 R.F.L. (5th) 300 (Ont. S.C.), at para. 53, the court added further factors for consideration:

a. The conduct of the non-occupying spouse, including a failure to pay support;

b. The conduct of the occupying spouse, including a failure to pay support;

c. The extent to which the non-occupying spouse was prevented from having access to his or her equity in the home; and

d. Whether the occupying spouse paid the mortgage and other carrying charges of the property.

139If a claim for occupation rent is appropriate, the method for calculation is one half of the rent that could have been earned if neither party lived in the property and it had been rented out: Doyle v. De Sousa, 2023 ONSC 3163, 2023 CarswellOnt 8174, at para. 40.

140Mr. Salema called a real estate agent, Elizabeth Yanqui, who provided expert evidence on the market rent value of the matrimonial home. I qualified her as an expert to provide opinion evidence on the market rental value of the matrimonial home from the date of separation to the date of trial.

141Ms. Yanqui undertook a review and assessment of comparable rents for units on the same street. However, she noted that the building in which the matrimonial home is located is under rental control, which affects the comparators.

142She testified under cross-examination that the rent controlled rental value of the matrimonial home was as follows:

a. 2020: $2,575

b. 2021: $2,575 (no increase was permitted under rent control)

c. 2022: $2,610 (reflecting the maximum permitted increase of 1.5%)

d. 2023: $2,675 (reflecting the maximum permitted increase of 2.5%)

143Ms. Yanqui testified that if the matrimonial home was rented to a new tenant at the time of trial, the rent control restrictions would not apply. Under those circumstances, the market rental value would be between $3,100 and $3,250 per month.

144The parties have already determined that they are splitting the carrying costs of the matrimonial home 50/50 on a go-forward basis. Mr. Salema declined to pay any spousal support from the date of separation to Myer J.’s order in February 2023. Thereafter, Ms. Barreto paid half the mortgage from the spousal support. Mr. Salema left the condominium unit of his own accord and had the means to afford his own accommodations. Mr. Salema could have brought a motion to sell the matrimonial home but declined to do so, waiting until trial to pursue this relief.

145There was no ouster of Mr. Salema. In fact, to the contrary, he testified that he left voluntarily and without notice to Ms. Barreto. The evidence is clear that Ms. Barreto wanted Mr. Salema to return to the matrimonial home, and he declined. Mr. Salema testified that Ms. Barreto was obsessed with reconciling with him, despite his unequivocal rejection of her desire to reconcile.

146It is a reasonable inference that, at the time he vacated, Mr. Salema intended Ms. Barreto to occupy the matrimonial home on a rent-free basis because, while he paid for the carrying costs of the home, he did not pay any spousal support until ordered to do so, knowing that Ms. Barreto was unemployed and of limited means. When Mr. Salema was ordered to pay spousal support, Ms. Barreto started contributing to the carrying costs of the matrimonial home and this status quo has prevailed. Mr. Salema did not seek to alter the status quo by bringing a motion to sell the matrimonial home.

147In these circumstances, and considering the relevant factors, I find that the parties intended that the occupation by Ms. Barreto be without compensation: Calmusky v. Calmusky, 2020 ONSC 1506, [2020] O.J. No. 2078, at para. 70. Furthermore, the parties agreed on the amount to be paid by way of equalization. It would neither be reasonable nor equitable to order occupation rent.

148The claim for occupation rent is dismissed.

149That said, I accept Ms. Yanqui’s opinion with respect to the rent controlled and market rental rates for the matrimonial home as set out above. In light of my finding, I will leave for another day whether the court should take into account the amount of rent the occupying spouse would have paid for a matrimonial home that is a rent-controlled unit, as opposed to a third-party tenant who would not have the advantage of the matrimonial home being a rent controlled unit.

Issue Five: Post-Separation Adjustments and Matrimonial Home Contents

150The parties agreed that Ms. Baretto owes $24,780 as post-separation adjustments for carrying costs of the matrimonial home to November 1, 2023. These post-separation adjustments were calculated as 50% of the carrying costs for the matrimonial home and reimbursement for the withdrawals Ms. Barreto made from their joint bank account.

151The parties agree that, provided both parties continue to pay their respective 50% share of the carrying costs, there is no need to modify the post-separation adjustments. The parties also agree that Ms. Barreto has been paying her share since November 1, 2023.

152Mr. Salema requests the sum of $5,000 in lieu of a division of the matrimonial home contents, provided he can keep the contents of the Puna property. He submitted a history of transactions from an auction house, Maxsold, from which they did most of their purchases from the date they purchased the matrimonial home. While these items may have depreciated, it is important to note that they were already purchased second hand. Other items were purchased at other auction houses and are not reflected on this valuation, as confirmed by Ms. Barreto.

153Both parties agree that in the event I order that Ms. Barreto pay Mr. Salema for the household contents, the appropriate amount is $5,000. Ms. Barreto agreed that Mr. Salema will keep the contents of the home in Puna, India and these will be covered by the $5,000 award.

154The total post-separation adjustments owed by Ms. Barreto to Mr. Salema (in the sum of

$24,780, on the assumption both parties continue to pay their respective 50% share of the carrying costs until the date of closing of the sale of the matrimonial home), will be set off from the lump sum equalization payment owed by Mr. Salema to Ms. Barreto and paid from Mr. Salema’s share of the net sale proceeds from the matrimonial home.

155In addition, Ms. Barreto will pay $5,000 to Mr. Salema for his 50% share of the matrimonial home contents and he will keep the contents of the home in Puna, India.

Issue Six: Torts Claims by Wife (IPV-Related Torts)

156Ms. Barreto initially plead the following torts: family violence, intentional infliction of mental suffering, and breach of public disclosure and confidence. By the time of trial, however, the Court of Appeal in Ahluwalia (leave to appeal granted by the Supreme Court of Canada) ruled that there is no need to create a new tort to address “family violence” because there are already torts that adequately address the types of misconduct the new tort was intended to cover, such as assault and battery. As Ms. Barreto plead the elements of assault and battery and therefore Mr. Salema is not taken by surprise, I had no difficulty granting an order amending the Application to replace the tort of “family violence” with the tort of assault and battery at the outset of trial.

157The claims advanced by Ms. Barreto are grounded in physical violence, psychological abuse, coercive financial control and breach of privacy rights. In her closing argument, she described Mr. Salema’s alleged pattern of behaviour towards her, which included secretly communicating with her family in India alleging she was violent, abusive, mentally ill and suicidal, as “gaslighting” her.

158“Gaslighting” is a type of pervasive behaviour in which the perpetrator artificially creates scenarios, the objective of which is to convince the victim that he/she/they are crazy. The aim is to have the victim question their perception of reality. According to the Cambridge Dictionary (online version), gaslighting is a noun that means: “the action of tricking or controlling someone

by making them believe things that are not true, especially by suggesting that they may be mentally ill”. This dictionary describes gaslighting as a form of psychological abuse.

159According to the Meriam-Webster dictionary, gaslighting is defined as the “psychological manipulation of a person usually over an extended period of time that causes the victim to question the validity of their own thoughts, perception of reality, or memories and typically leads to confusion, loss of confidence and self esteem, uncertainty of one’s emotional or mental stability, and a dependency on the perpetrator”.

160Gaslighting is used in these Reasons as a descriptive term only. There is no recognized tort of gaslighting, though the factual elements alleged do overlap with recognized torts in this case, notably the intentional infliction of emotional distress (formerly called the intentional infliction of mental suffering).

Credibility Assessment and Myths Surrounding IPV

161The parties relied on their own testimony, each other’s cross-examination, and their respective witnesses and exhibits to support their versions of the relevant and material events. Their testimony diverges substantially on many points. Ms. Barreto claims Mr. Salema abused her and Mr. Salema claims she abused him.⁴ Accordingly, I will have to make an assessment as to who is likely telling the truth, adopting the well-established framework outlined in Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) (“Faryna”), at p. 357 and developed in subsequent cases, recognizing that trauma can impact one’s ability to recount the traumatic incidents. The lack of corroborative evidence is not unusual as the alleged incidents of assault and battery and some of the alleged intentional infliction of emotional distress events took place in private (Barendregt v. Grebliunas, 2022 SCC 22, paras. 144, 145, 183, 186). See S.V.G. v. V.G. 2023 ONSC, paras. 103

– 105 for a comprehensive discussion of the dynamics and social context against which IPV allegations must be considered in assessing credibility of IPV allegations, including being alive to the possibility that such allegations may be fabricated in order to gain a litigation advantage (in this case to receive damages) when making a balanced assessment.

162However, there is some evidence that is confirmatory of one party’s testimony over the other party’s testimony, as will be reviewed later in these Reasons.

163Notably, I placed little weight on the demeanor of the witnesses in assessing credibility. At times, both parties became argumentative and visibly frustrated with the other. This is reflective of the dynamics between the parties at trial. However, the contemporaneous documentary evidence, and underlying explanations, were very important in terms of gauging whose version of the truth (whether in part or in whole) was credible. The documents and supporting witnesses were important to determining the degree to which the parties’ and witnesses’ respective stories are in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Faryna, at p. 357. In

addition, I examined the inconsistencies, both internal to a particular witness and in the context of the testimony of the other witnesses, and the plausibility of explanations provided to probing questions under cross-examination.

164Also important to this analysis is whether any of the witnesses appeared to have selective memory, the level of detail provided concerning the incidents of alleged abuse or mistreatment, and whether there were any factors that warranted drawing an adverse inference against a party.

165There is no expert evidence before me that would suggest that either party suffers from a memory impairment or other condition (such as substance abuse or other impairment) that would put into question the reliability of their memory, nor any psychiatric disorder that would put into question their respective abilities to perceive reality in an accurate way. Accordingly, this comes down to a credibility, not reliability, assessment.

166The court is also aware of the myths surrounding IPV and they form no part of my analysis. The myths associated with IPV are substantially the same as the well-recognized sexual assault myths. Of most import to this case, those myths include:

a. The partner did not leave the relationship and therefore there was no abuse or mistreatment (McLellan v. Birbilis, 2021 ONSC 7048 (S.C.J.), at para. 72);

b. The partner must have consented to the offensive treatment because she/he/they did not leave the intimate relationship;

c. The partner did not complain to anyone in authority, his/her/their family, or otherwise of the offensive treatment or abuse and therefore it did not happen;

d. The partner did not behave in a certain manner in response to the alleged abuse or mistreatment and therefore cannot be believed (see generally, R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852 (S.C.C.), at pp. 871-890).

a) Intentional Infliction of Emotional Distress (also known as the Intentional Infliction of Mental Suffering)

167Ms. Barreto submits that from 2010 to the date of separation, she has been the victim of psychological manipulation at the hands of Mr. Salema. The crux of her claim is that Mr. Salema embarked on a series of communications with her parents and siblings which were intended to portray her as “crazy”/mentally unstable, violent, suicidal, and abusive. These communications were done in secret, in writing and verbally. Mr. Salema intentionally kept these communications with Ms. Barreto’s family secret and persuaded her family to do the same, with the result that she was being judged unfairly unbeknownst to her. Mr. Salema’s intention was to make her believe that she was responsible for his physical and emotional abuse, thus leading her to endure his physical, emotional, and financial abuse in silence and question her perception of reality. He told her repeatedly that he only physically restrained, or lashed out at, her to protect her from herself or to protect himself from her. He twisted her perception of reality successfully until his secret communications were finally revealed by her family after separation.

168Mr. Salema admits to surreptitiously recording Ms. Barreto and to secretly engaging in a confidential exchange of written and verbal communications with Ms. Barreto’s family. He implored the family to keep his disclosures about Ms. Barreto secret from her in order to not provoke any violent or self-harming actions by Ms. Barreto who, he believed, was unhinged, suicidal, and had lost touch with reality in her perceptions of their relationship. He wanted to get his side of the story out without her knowing and was concerned that if she carried through on any of her “death wishes” that he not be blamed, after the fact, by the family. He says that some portions of his written communications to her family were true, but other parts were not true because he feared that Ms. Barreto might get a hold of his phone or, in other cases, he might want to share the untrue content with her to (falsely) demonstrate that he was taking the blame for their marital struggles and cherished her, when, in fact, he was not taking the blame and no longer wished to be with her. Another reason for writing “false” statements to Ms. Barreto’s family was to portray matters from her “perspective”, even though those statements were not premised by such a qualification. He agrees that Ms. Barreto was desperate to keep their marriage intact and this was a further delusion and obsession of hers.

169To establish the tort of intentional infliction of emotional distress, Ms. Barreto must establish, on a balance of probabilities, the following elements:

a. Mr. Salema’s conduct was flagrant and outrageous;

b. The conduct was calculated to harm her;

c. The conduct caused her to suffer a visible and provable illness: Ahluwalia, at para. 69; McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830, [2015] O.J. No. 6312, at para. 29; and Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), at para. 43.

170The courts have clarified that the third element, namely, a visible and provable illness, no longer requires a medically diagnosed psychiatric disorder or ailment. Rather, the illness “must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept”: Ahluwalia, at para. 114, citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 9. Under this relaxed definition, the court is concerned about the symptoms caused by the alleged flagrant and outrageous conduct, rather than about a formal diagnosis: Ahluwalia, at para. 116. Another way to put it is that clinically significant psychological impairments of the victim’s functioning (in one or more of the functioning domains) will satisfy the requirement of a visible and provable illness.

171The court may infer the requisite intent for this tort where the perpetrator wishes for the consequences that follow the act, or “if the consequences are known to be substantially certain to follow”: Ahluwalia, at para. 70.

(i) The Evidence

Ms. Barreto’s Testimony

172Ms. Barreto testified that in 2016 when Mr. Salema obtained his current job with a much higher salary than before, she first noticed that he began treating her like she did not matter to him. He started telling her that she was an abuser because she was yelling at him to get off her during what will be referred to as “the restraining incidents”. He would tell her, as he sat on her chest area and restrained her arms, that he was protecting her from herself. When she struggled against him (sometimes scratching him in the process), he accused her of abusing him. She said that she came to believe him when he told her that all that was happening was her fault, she was worthless, she needed him, and she was desperate for their marriage to survive.

173In 2017, Ms. Barreto started to believe that she would be better off dead and felt that Mr. Salema encouraged her in this belief by saying things like maybe you would be. She recounted episodes where she would tell Mr. Salema that her life was worthless and she should die, and he would encourage her to end her life. For example, during one incident when they were driving and they got into an argument, she said to him that she would jump out of the car if he did not stop it, and he said go ahead. She started to believe she would be better off dead.

174As of 2017, Ms. Barreto testified that the physical abuse was frequent, as will be discussed under the assault and battery section.

175After Mr. Salema left her in August 2020, Ms. Barreto found out that Mr. Salema had engaged in secret communications with her parents and siblings in India (she had no relatives or friends in Canada at this time) that contained either sensitive information she shared with him (e.g., about her troubled relationship with her mother) or false allegations about her (e.g., that she was physically violent towards him, emotionally abusive, crazy, suicidal, and inflicting serious self- harm). These communications evoked her family’s anger against her and made them allies of Mr. Salema. She had lost their support but did not know why until after separation.

176Some of the key emails between Mr. Salema and Ms. Barreto’s family relied upon by her are dated November 7, 2010, April 25, 2017, June 5, 2017, June 19, 2017, November 16, 2017, and November 25, 2017. In these emails, Mr. Salema is expressing that Ms. Barreto is suicidal, paranoid, mistrustful, and essentially unhinged. Mr. Salema is explicit in his requests that their communications, written and verbal, be kept secret from Ms. Barreto, for her own sake and also for his. Mr. Salema admitted the emails were authentic and did not object to their admission into evidence (ie: the subject emails, and also certain WhatsApp and text messages that were also admitted into evidence). In fact, he relied on some of them in support of his own testimony. There are additional emails from Mr. Salema to Ms. Barreto’s family sent without her knowledge between 2010 to 2017 which she also relies upon.

177Mr. Salema agreed in his cross-examination that he involved her family in a “conspiracy” behind Ms. Barreto’s back.

178The “conspiracy” began with Mr. Salema’s email of November 7, 2010. This email was addressed to Ms. Barreto’s parents as “Papa and Mama”. In it he describes an incident in which he made a comment to Ms. Barreto that hurt her so much that she had not:

eaten anything since morning and says she would rather die than continue being married to me. I told her how sorry I was at being insensitive. Unfortunately, this isn’t the first time. Just last week I upset her over another matter and there have been numerous other blunders of mine that have caused her much pain, both physically and emotionally. (…) I know that deep down within me I am basically a self-centred, insensitive, sarcastic, lazy person and it invariably manifests itself in ways I never realize, until it’s too late. Liesl has never let that side of me show to the rest of the family, which could make this difficult to imagine. I on the other hand have never really painted the true picture of her to you or the rest of the family, which has been another of my failings. She has been more than a dream come true for me as a wife. (…)

179Then, on November 9, 2010, the parents responded to Mr. Salema and indicated that his email “really shocked both of us” and to “rest assured that it will not go beyond the 2 of us”. They recognized his identification of Ms. Barreto’s “emotional stress”.

180This email is responded to by Mr. Salema on the same day. He thanked Ms. Barreto’s mother for calling and smoothing things over. He wrote: “Thank you for just keeping the matter between us. I knew I could turn to you as parents even more than my own.” He further indicates that 2010 has been a rough year because of their move from Pune, India to Canada which was “more of a last minute one due to the expiring US visa”. He then goes on to indicate that Ms. Barreto is unhappy with respect to the higher cost of living in Canada as opposed to India and how that has depressed their lifestyle. He states in that email that Ms. Barreto has sacrificed her career in order for his to flourish. He indicates that Ms. Barreto is suffering from these stresses.

181On April 25, 2017, Mr. Salema wrote again to Ms. Barreto’s parents. He references prior emails he has sent, which have been deleted by him according to his own testimony but relate to Ms. Barreto’s struggles in Canada. He wrote that Ms. Barreto “does not believe you will understand her and sympathize with her situation should she open up to you, so she would like you to believe all is going great. She is very opinionated and sees everything clearly in black and white. I only see all shades of grey.” He goes on to write, in part: “I don’t know if you can imagine the PAIN she is in, to go without food and very little water for nearly 5 days from Good Friday. At the moment, things are better between us. As you would have noticed, it’s small, really insignificant things that push her over the edge to make her pour out all the emotional baggage she keeps carrying.”

182On June 5, 2017, Mr. Salema made a plea to Ms. Barreto’s parents begging them to urgently come to Canada under the false pretense of celebrating Ms. Barreto’s birthday, because, in his view, her mental health had really deteriorated. In an email dated June 5, 2017 addressed to the parents and Ms. Barreto’s brother, George, Mr. Salema tells them to “book your tickets really fast as the longer the delay the harder it is for me to hold off from her pushing me to tell you that it’s the thought that counts and you should not make the trip.” The real purpose of the trip would be

for them to observe Ms. Barreto who, according to Mr. Salema, was in great emotional distress. He assures the parents and George that “Overall the plan is working and Liesl has not suspected the real reason for the trip, though given her hypersensitivities, it is a very challenging task. (…) NOTHING escapes her, so we have to tread very carefully… (…) Mama and Papa will have to play it cool and show her they are looking forward to this trip.”

183On June 19, 2017, Mr. Salema wrote a follow-up email to Ms. Barreto’s parents saying that Ms. Barreto is very stressed out about their forthcoming visit. Specifically, he states:

Like everything else, she blames me for it. She claims that it’s my fault you are coming over. I know she is technically correct, but I can’t obviously admit to it and tell her what has been going on. (…) [S]he kept telling me to call you on that Sunday night and ask you to change your plans and that the trip was not necessary, just the thought was enough. (…) She thinks I am conspiring with you and everyone is against her.

184He added in this email that Ms. Barreto:

said she will break all the things in the house. Overall she is less violent with me now but keeps hitting her head when things escalate. She knows our marriage is practically over. We live like roommates forced to tolerate each other till your visit is done. She plans to just vanish after that. She needs to feel loved and wanted. I tried the best I could, but it always fell short… She is constantly wishing that God ends her life soon.

185Later in this email, Mr. Salema gives advice to the parents on how they should treat Ms. Barreto when on this visit. He states: “Try and win her confidence over. Make her feel you really came for her and care for her. I know this is true, she feels you have your own motives. (…) Let’s celebrate her birthday which is the official reason for the trip and approach the impending issue of us separating after that.” He states that, as his Gmail account is no longer private to him, he is writing from an account he has set up on Ms. Barreto’s phone for her father. He confirms that he has deleted a message that Ms. Barreto’s brother, George Barreto, sent to him and asks everyone to keep Ms. Barreto in their prayers.

186On November 21, 2017, George Barreto wrote to Mr. Salema advising him that the siblings believed they should call Ms. Barreto to tell her that they all know about “the problem”. He wrote that it is unfair to her “for all of us to be dissecting the matter, all while she is blissfully unaware. A proper solution can only be found by taking Liesl on board.” Mr. Salema dissuades the family from doing this, and the secret persists for the time being.

187Also noteworthy is a text from Ms. Barreto to Mr. Salema dated December 1, 2017 which states, “The first day of the last month of the most wretched year of my life. Hopefully, this will be my last year of life.” Mr. Salema relied on this text and other messages in which Ms. Barreto expresses despair in support of his claims that Ms. Barreto was suicidal. In a text dated November 28, 2017, Mr. Salema told the family that he is leaving Ms. Barreto, and to be supportive of her as this may be her last Christmas. This was a chilling message to send.

188In emails between Mr. Salema and the Barreto family between December 5, 2017 and December 12, 2017, the siblings are discussing the practical matters that must be addressed consequent to a marital separation. Notably, in his email dated December 5, 2017, initiating this email chain to the siblings, Mr. Salema advised that he has told his and Ms. Barreto’s family doctor about the situation; notably, that he did not feel safe in the house when she displays certain behaviour, which the doctor characterized (based on his description) as domestic violence, and that she was showing “very classic histrionic behaviour”. He described telling the doctor of Ms. Barreto’s mental and emotional abuse and needing to feel “physically safe”.

189Ms. Barreto testified that it was clear from these emails and others adduced into evidence that Mr. Salema had told the family that she had been abusive towards him, such that the siblings advised that it should be disclosed to his doctor and that he may need a police escort to collect his personal belongings. In other words, he was believed by them to be the victim. They also voiced concern that Ms. Barreto may hurt herself.

190Ms. Barreto testified that she now knows that Mr. Salema’s various written and oral communications telling her that he loved her, that he was responsible for their problems, and promising to do better in their relationship were all a charade. He sent these types of messages expressing his love for her in 2017 after he had already determined to leave her, as he was telling her family. He did leave in December 2017.

191Ms. Barreto testified that there were good moments in the marriage, so she did not know if his apologies and promises to do better were sincere or not.

192Ms. Barreto said she never reached out to her family as she felt a duty to keep their intimate matters private. She now realizes that they were being told one side of the story without her awareness. She said when she initially disclosed to them the abuse she had suffered they did not believe her because she had not told them while it was happening. Only recently has her family come to believe that Mr. Salema was fabricating a complex lie and that this was the reason he demanded secrecy from them.

193She felt that everything she shared with her husband during their marriage had been weaponized against her. For example, she told Mr. Salema that she had been subject to some abuse by her mother during childhood. However, she had healed from that and was resilient. Instead, Mr. Salema surreptitiously recorded her talking about her childhood with her mother, and then shared it with her parents. She has a better relationship with her mother now. Ms. Barreto noted she flourished after childhood, evidenced by her excellent standing in school and university. In 1995, when Ms. Barreto was in grade 12, she was second in grade average in the state. In 1998, she stood second in her Bachelor of Arts degree and received a letter of recommendation from her professor.

194In some of the emails from Mr. Salema to Ms. Barreto’s family, she was blamed for the couple not having a child. She testified that while she initially did not wish to have a child, later on it was Mr. Salema who did not want a child.

195She testified that Mr. Salema told her family that she was crazy, mentally abusive, and suicidal.

196She reached out to her family and his family in 2018 to make peace with everyone. She forgave them and asked them to forgive her. She did not know that Mr. Salema had told them she was abusive and erratic and that his parents told him not to allow her to call them again.

197She testified that she only discovered Mr. Salema’s deceit when she was sent his September 8, 2020 email to the family. She said that he violated her respect and cast shame on her character. It was devastating to have her family accuse her of the false allegations made by Mr. Salema. She had an expectation of privacy with respect to the disclosures of her family relations and marital intimacies to Mr. Salema.

198She said that Mr. Salema would threaten to leave her if she ever disclosed anything. In her words, he used the “sacred sacrament of marriage” to keep her silent.

199She testified that she was violated by Mr. Salema, and took on the shame, blame, and guilt to protect him. She suffered in silence during her marriage.

200She testified that she still has daily struggles, and that the matrimonial home is her only comfort and stability. She has had difficulty sleeping due to the abandonment by her husband and the related trauma she experiences.

Cross-Examination of Ms. Barreto

201Under cross-examination of Ms. Barreto, Mr. Salema presented a number of text messages from her to him in support of his position that she was unstable, angry, and directed profane language towards him from time to time.

202With respect to her text of December 1, 2017 in which she stated she wished to be dead, Ms. Barreto denied making any actual plans to kill herself. Rather, the text was a cry to him for help “hoping against hope for some kind of change” in the marriage relationship. She felt this way because their marital relationship was dysfunctional.

203Her response to his text of December 19, 2017, the day he left the first time, was that she would not eat until he came home. She explained that she was hoping he would then come back to her. She testified that she was hurt and felt abandoned by him. He had blocked her messages. She was desperate for a response from him, as she had no idea where he had gone.

204Mr. Salema’s cross-examination on the various text exchanges reinforced Ms. Barreto’s testimony that Mr. Salema apologized for the events in his surreptitious recording, and that Ms. Barreto was experiencing suicidal ideation and despair after the choking incident and in the immediate aftermath of his initial unannounced departure on December 19, 2017.

Loraine Alberto’s Testimony

205The only family member who testified was Ms. Barreto’s sister, Loraine Alberto. She swore a trial affidavit on behalf of Ms. Barreto and was cross-examined by Mr. Salema over videoconference.

206Ms. Alberto is copied on some of the various emails sent by Mr. Salema to the Barreto family and the responses referenced above.

207Under cross-examination, Ms. Alberto testified that Mr. Salema told the family not to raise the difficulties with his marital relationship that he had confided to them with Ms. Barreto. Therefore, Ms. Alberto did not pursue the issues with Ms. Barreto, including after Mr. Salema left her in December 2017. She confirmed that the Barreto family did not know Ms. Barreto’s side of the story as a result.

208Furthermore, as a result of Mr. Salema’s request in late 2017, the family did not reach out to Ms. Barreto, but rather were available as support for Ms. Barreto if requested since it was Christmas time and they knew that he was going to leave her.

209Ms. Alberto testified that Ms. Barreto did not disclose any problems she was having with Mr. Salema until 2020, after Mr. Salema left for good. Ms. Alberto stated that, in 2020, when Mr. Salema made accusations against Ms. Barreto through his emails to the family, she wanted to know if they were true.

210Ms. Alberto clarified aspects of her affidavit. For example, she testified that the family noticed that Mr. Salema tended to “behave like a child” when he was around Ms. Barreto, such as asking her constantly what he should do and eat. Based on Ms. Alberto’s observations, he enjoyed being “mothered” by Ms. Barreto.

211Ms. Alberto testified that the family was very concerned when Mr. Salema urged her parents to make a sudden trip to Canada in 2017, even though they had visited the year before. This is because the parents were elderly and travelling long distances was difficult. The father had recently had surgery on his shoulder and was diabetic. However, Mr. Salema’s allegations against Ms. Barreto were “alarming”, as he claimed she was suicidal and abusive. He told them it would be better if the parents took her back with them to Goa, India because he was planning to leave her. These concerns were expressed in a telephone conversation Mr. Salema had with the family. Ms. Alberto participated in that telephone conversation in late 2017.

212Ms. Alberto deposed that the siblings were very disturbed when, after her parents returned from Canada, Mr. Salema made them promise not to tell Ms. Barreto what the real purpose of the trip was. Then, not long afterwards, Mr. Salema told them that he and Ms. Barreto were now alright and that it was her parents who needed counselling.

213Ms. Alberto testified that Mr. Salema was always trying to portray Ms. Barreto to the family as “the bad and evil one”. She stated that, with respect to the September 8, 2020 email to the family, he was sharing highly confidential matters between him and Ms. Barreto with the siblings. She did not feel this was appropriate. She interpreted his email as being controlling of what they should say to Ms. Barreto once he left for good. The email made her (and the family, based on her observations) feel uncomfortable and tainted their perception of Ms. Barreto. She said the sharing of Ms. Barreto’s intimate details with the siblings was particularly disturbing because Mr. Salema was aware that Ms. Barreto had her differences with some of the siblings.

214Ms. Alberto identified the email of September 11, 2020 from her brother, George, to Mr. Salema. She confirmed that the siblings thought it was appropriate to speak candidly with Ms. Barreto. She confirmed Mr. Salema’s response of September 12, 2020 that they should not do that but rather should maintain the secret for Ms. Barreto’s own good. This email prompted Ms. Alberto to contact Ms. Barreto. She shared Mr. Salema’s email with Ms. Barreto. This is how Ms. Barreto found out about Mr. Salema’s plan. Ms. Alberto added that, since 2017, Mr. Salema never provided Ms. Barreto with the opportunity to know what was being shared about her, telling the family not to tell her what he had shared and denying Ms. Barreto the opportunity to defend herself against his allegations.

215Ms. Alberto felt sad about the whole situation because, prior to this, whenever she asked Ms. Barreto about her relationship with Mr. Salema, particularly after he walked out on her in 2017 and then returned shortly thereafter, Ms. Barreto only had positive things to say about him. There was no mention of any abuse.

216Ms. Alberto now believes Mr. Salema was manipulating them all along by portraying himself as the victim at the hands of Ms. Barreto and causing a rift between the family and Ms. Barreto. She no longer believes what Mr. Salema told them about Ms. Barreto’s behaviour towards him and herself. She believes that Mr. Salema betrayed Ms. Barreto and that they were tricked by him. She believes that Mr. Salema created a narrative to portray Ms. Baretto negatively “even if it meant destroying her life, her health, attempting to sever her family relationships, isolate her.” She also deposed that “watching it unfold has been very difficult for the entire family to accept, especially my parents, who loved Savio like their own son (…)”.

217Mr. Salema did not effectively challenge Ms. Alberto’s portrayal of his conduct through the use of emails and statements attributed to him. Ms. Alberto was not shaken in her written testimony under cross-examination. She was straightforward, though at times would answer a question with “you know very well”. While she did not have a detailed recollection of the telephone conversations they had up to 2020, she did remember core portions which made an impression on her. She did not have any notes of these telephone conversations and so was testifying from memory, with the aid of the emails.

Marcia Green-Smith’s Testimony

218Ms. Green-Smith testified on behalf of Ms. Barreto. Ms. Green-Smith swore a trial affidavit and waw cross examined over videoconference by Mr. Salema.

219She met Ms. Barreto as an intake worker at the A-1 Counselling Centre. Her role was to schedule appointments for potential clients to see counsellors.

220She met Ms. Barreto in December 2017. Ms. Barreto wanted to register for the anger management class at the centre. Ms. Green-Smith learned that her husband had left a few days earlier without warning.

221Ms. Barreto asked if she could volunteer at the centre. Ms. Barreto was taken on as an intern and then, after shadowing for a while, as a part-time group facilitator for the anger management class and as a counsellor.

222Ms. Green-Smith and Ms. Barreto gradually became friends. Ms. Green-Smith learned that Mr. Salema returned to Ms. Barreto.

223However, in 2020, in light of the COVID-19 pandemic, the centre closed, and Ms. Green- Smith had little contact with Ms. Barreto until she found out that Mr. Salema had left the marriage for a second time. She recounted receiving a telephone call from Ms. Barreto who was at a grocery store and who told her she was experiencing an anxiety attack. Ms. Green-Smith went to the grocery store and observed that Ms. Barreto was not doing well.

224She recalls that Ms. Barreto was afraid to take a cab alone to the grocery store and this is why she started accompanying her to the grocery store, every two weeks to do shopping together for a period of time.

225Her observation was that spending time with Ms. Barreto in this way helped reduce Ms. Barreto’s apparent anxiety. They also shared a meal from time to time, with Ms. Barreto preparing it for her.

226Gradually, they spent less time together. However, Ms. Green-Smith still visits Ms. Barreto periodically. Her observation is that Ms. Barreto has changed since 2018 and now appears to have less self-confidence.

227Ms. Green-Smith met Mr. Salema on three occasions, twice when Mr. Salema returned after the first separation and once when Mr. Salema came to pick up his personal belongings in January 2023. Ms. Green-Smith acted as a witness and helped Ms. Barreto take Mr. Salema’s personal items to the lobby of the condominium building. She witnessed Mr. Salema take his belongings. Based on her observation, it was her impression that Ms. Barreto acted respectfully as Mr. Salema retrieved his belongings.

228Under cross-examination, Ms. Green-Smith could not recall the specifics of what Ms. Barreto disclosed to her during that initial encounter at the A-1 Counselling Centre in December 2017, except that Mr. Salema had recently left the marriage and she was lonely. Ms. Green-Smith did not recall Ms. Barreto disclosing any abuse she might have suffered. She recalled that the fee for the anger management class was $100. Ms. Barreto could not afford it, so she asked if she could volunteer and observe the class. She believes that Ms. Barreto also viewed the opportunity to volunteer as a possible way to get a job there.

229Ms. Green-Smith recalled that, eventually, Ms. Barreto disclosed financial and emotional abuse, but not physical abuse.

230Ms. Green-Smith maintained her evidence under cross-examination. She did not embellish, admitted when she could not remember something, and answered questions in a forthright manner.

Mr. Salema’s Testimony

231Mr. Salema’s evidence as to the source and type of turmoil suffered during the marriage is quite different from Ms. Barreto’s, though there is some overlap. He testified that Ms. Baretto was never satisfied with the life they were living, and that this unhappiness heightened when they moved to Canada in or around August 2010. He recalls that Ms. Barreto was unhappy with moving to Canada as she did not want to leave the United States. Ms. Barreto’s first episode of self-harming behaviour occurred in the first week of November 2010 in response to Mr. Salema stopping her from buying things for the condominium that they could not afford. Her response was to go to bed and refuse to eat. When he asked her what she would like to eat, she said poison and added that she was going to die and that it was his fault.

232To the outside world, Ms. Barreto painted a different picture of their relationship. Mr. Salema said that Ms. Barreto was telling everyone that their marriage was fine. He started to panic and was afraid that if something happened to Ms. Barreto, it would be a shock to the family.

233Therefore, he prepared an email to her family dated November 7, 2010, trying to be fair to Ms. Barreto’s perspective. He believed that, at some point, Ms. Barreto would read it and did not want to invite her hostility. He wanted her family to know that she was not eating and that she wanted to die. He stated that he wanted to tell her parents what was going on so that if she died it would be “on them”, not him. In this email, he states that Ms. Barreto had not eaten anything since the morning and says she would rather die than continue being married to him. He then takes the blame for Ms. Barreto’s unhappiness saying that she is “thoughtful, loving, sensitive, selfless, achieving and passionate”. Addressing her parents, he writes, “I hope you will be able to forgive me for my failings”.

234Mr. Salema told Ms. Barreto that he had written to her parents. According to him, she flew into a rage. She was in their bed, which was high enough that she had to use a stool to climb into it (because there was storage underneath). He said he was kneeling beside the bed begging for forgiveness when she started kicking him and spitting at him from the bed. But, he added, after this outburst of violence, she was no longer depressed and thinking she would die. This sent a message to him that he was not supposed to tell anyone, especially her parents, about anything between them.

235Mr. Salema also testified about the November 7 and 9, 2010 email exchange he had with Ms. Barreto’s parents. He testified that Ms. Barreto’s parents expressed shock at what Mr. Salema has told them about their daughter’s behaviour. They were glad he shared it with them. He was to “rest assured that it will not go beyond the 2 of us”. They concluded that they did not know what his failings are that he was asking them to forgive. They asked why he presumed Ms. Barreto would never forgive him. Mr. Salema responded on the same day thanking them for their understanding and for keeping the matter between them. He concluded that his initial email was an “over reaction to the situation” and wrote, “[A]s I mentioned earlier, please keep the matter private between us”.

236Mr. Salema stated that he had hoped things would get better. However, in 2016, when her parents came to visit, Ms. Barreto wanted to decorate the home. He said she punched him and pulled his hair in upset over how her mother would react to their modest condominium unit.

237He testified that he verbally told Ms. Barreto’s mother that he was experiencing physical abuse at the hands of Ms. Barreto.

238In 2017, they travelled to India and went to their home in Puna. According to Mr. Salema, Ms. Barreto stated that she wanted to stay in Puna because they were paying hydro of $500 to $600 per month at their matrimonial home in Canada and she was stressed about living in North York where she felt isolated. However, he did not wish her to stay in Puna as he felt she had no plan and her family lived in Goa. Therefore, she came home with him to Canada.

239Commencing June 19, 2017, Mr. Salema started using an email with Ms. Barreto’s father’s name (Luis Barreto) to ensure she would not discover this correspondence on his telephone. There were more emails but Mr. Salema testified that he deleted them so that Ms. Barreto would not discover them.

240In June or July 2017, Mr. Salema surreptitiously recorded Ms. Barreto. The incident occurred after her parents had visited. It was a Sunday, and they went to an auction house to pick up some purchases. That evening, they went to Staples but he was tired. Mr. Salema said he needed to rest in the parking lot. Ms. Barreto complained because her back was hurting. She had a bad back and had received medical treatment. They started driving and Ms. Barreto took off her seat belt because of her back. He reached over and put it back on her. She told him she was going to jump out of the car and unbuckled herself again, so he drove into another parking lot and she got out and walked. He figured she would come back. When she did not, he got out and followed her. He gave her one of his phones and walked back, 30 minutes, to his car. He tried to reach her, but she did not respond. He had no idea that she had walked home nor that she did not have his password and therefore could not return his messages asking where she was. He fell asleep in the car. Mr. Salema admitted he said go ahead and jump during this incident. However, he claimed he did not mean it and was simply tired and frustrated with Ms. Barreto’s antics.

241He audio recorded this incident from a second phone because he wanted to show her parents that he is not making up the challenges she is creating for him and to prompt a discussion with her about her behaviour. He acknowledged that she did not know she was being recorded. He testified that he had hoped to capture her banging her head with her hand, but that did not happen. He claimed that she was slapping and punching him during the recording, but that was not evident in the audio.

242In December 2017, he left the marriage. He returned in early 2018 because of an apologetic email Ms. Barreto sent to him dated January 8, 2018 and her promise to change her behaviour. I did not permit this email to be admitted as an admission or for the truth of its content because Mr. Salema did not put it to Ms. Barreto on cross-examination. In any event, Mr. Salema did not wish to enter it for the truth of its content, but only for the limited purpose of providing the reason why he came back to the relationship. I admitted it for that limited purpose.

243Upon his return, there was an immediate incident. Ms. Barreto asked him what he had told his parents about her. He said the past was the past and he declined to tell her.

244Mr. Salema stated that, in a September 8, 2020 email to her family, he explained all of the things that were happening in their relationship since his return in 2018. He said that, by the end of 2018, Ms. Barreto was still abusive towards him, but not as bad as in the past. That said, by December 2018 he was looking for another place to live, without her knowledge. He engaged a real estate agent to assist him.

245Mr. Salema explained that the September 8, 2020 email was therapeutic for him and that he wrote the truth in that email. He said that, after he left for good on August 21, 2020, he felt that he should update her family on past events and tell them that things had regressed between them. He said it was time to tell his side of the story, because the other emails he wrote told her version of events. He asked her family to support her now that he had decided to end the marriage with no chance of reconciliation. He agreed he shared confidential details from their therapy, but felt it was appropriate. He did not know what the impact of his disclosures on her family and their relationship with Ms. Barreto would be when he sent the email.

Cross-Examination of Mr. Salema

246In cross-examination, Mr. Salema was asked to explain his written communications in which he characterized Ms. Barreto as blameless and stated the problems were his fault, or portrayed Ms. Barreto as loving towards him and himself as abusive towards her. He explained that, in those places, he was not telling the truth. The reason for his falsehoods were varied and interchangeable. He either wrote those false things in case Ms. Barreto came across the emails, or in the event he decided to show them to her in order to “pacify” her, or he was trying to convey Ms. Barreto’s perspective even though he did not preface those statements in the emails in that way.

247For example, with respect to the November 7, 2010 email he wrote to her parents after she refused to eat, he stated under cross-examination on February 6, 2024, at p. 61-62 of the transcript: “The contents of this email cannot be relied on for their accuracy. As I explained in my testimony yesterday, the applicant had thrown a fit, was not willing to eat anymore, was upset, sleeping, only wanted to die, that is what prompted this email to be written, so—” Two questions later he continued as follows:

I knew I was going to show this email to you [Ms. Barreto] the next day, so I had to write your point of view to them [her parents] or that would cause more escalation, so I was simply conveying to them what your side of the story is. I hoped that when you read this email, you would understand how much I appreciate you, appreciate what you’ve done, and would not get upset. So, a lot of this, it was entirely your point of view, it is not an accurate depiction of the truth of what I believed at that point of time. It was a context to writing this email.

248In another example, Mr. Salema denied that his father asked Ms. Barreto’s family to pay a dowry as a condition of the impending marriage. Mr. Salema was shown an email he wrote to

George Barreto dated February 27, 2012. In it he wrote specifically that his father did ask for a “dowry”. His explanation was that he wrote the email under pressure from Ms. Barreto. He testified that she forced him to write the email but that the contents were not true, even though he composed the email. In the email to Mr. Barreto, he further criticized his own parents for not accepting him as a son. His explanation was that Ms. Barreto made him write this to her brother to say that his father was bad and that his family had done bad things, so Mr. Barreto should be grateful for his own good parents. He maintained that while he drafted this email, Ms. Barreto reviewed and approved it. He said parts of the email are accurate and other parts are not true but written at her demand and therefore cannot be relied upon for the truth of their content.

249Ms. Barreto questioned Mr. Salema as to why, if he was being abused in the manner he described, he did not permit her to remain in India in 2017 when she wanted to, but rather insisted she come home with him. He responded that it was because, in his view, Ms. Barreto had no real plan to stay. She could not stay in their home in Puna and, in his view, she had not made plans with her sister to stay in Goa either. He said that after she saw the hydro bill for their home, she overreacted about the amount. He said he had to take her back to Canada after that reaction. He added that if he had realized that the abuse was going to escalate, he would have let her stay behind.

250Mr. Salema acknowledged that in none of his emails to the family after April 2017 did he write that Ms. Barreto was abusing him. He explained that the reason he stopped mentioning her abusive behaviour towards him was because he did not want to stress out her parents unduly. He also acknowledged, however, that in this email the stress he was referencing was Ms. Barreto’s.

251Mr. Salema acknowledged that he had various telephone and written communications with Ms. Barreto’s family that were kept intentionally secret from her.

252Mr. Salema acknowledged that he sent an email dated November 28, 2017, to Ms. Barreto’s siblings, before he left her for the first time, saying that it might be her “last Christmas” and that the inference was that she was going to end her life.

c) Physical Assault and Battery

253Ms. Barreto alleges that Mr. Salema physically battered her on several occasions. She also referenced an incident of a sexual nature, but this incident was not plead nor was the tort of sexual assault, and therefore I am not considering it.

254Mr. Salema denies having physically abused Ms. Barreto. He denies any choking or head slamming incidents. He does admit to engaging in the physical restraining of Ms. Barreto. However, he claims that the physical force he applied to her was either to prevent Ms. Barreto from self-harming or to defend himself when she would punch him or pull his hair. In other words, Ms. Barreto is to blame for these incidents. He did not ask Ms. Barreto’s consent to physically restrain her, and there is no legal concept of implied consent to assault and battery in Canadian law: R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330. He submits he was justified in exerting physical force against Ms. Barreto in the circumstances he was faced with.

255Mr. Salema alleges that he was the victim of physical abuse. However, he abandoned his tort claims at the outset of trial. During closing submissions, he tried to resurrect his tort claims and request nominal damages, but I ruled that it was too late. Nonetheless, Mr. Salema’s testimony about the physical abuse he stated is suffered is relevant to his defence that he was justified in exerting the physical force he admits to for the reasons above stated. In assessing Mr. Salema’s credibility. I had to be careful to avoid the application of the same IPV myths in assessing Mr. Salema’s responses and reactions to the alleged physical abuse he claims he was subjected to.

256The torts of assault and battery are distinct. They are intentional torts, meaning that there must be an intention to commit the constituent elements. The burden of proof is on the person alleging to be the victim of the misconduct to demonstrate that it is more likely than not that the alleged misconduct occurred (proof on a balance of probabilities).

257In the case of assault, the victim must prove that she experienced the “apprehension of harmful or offensive contact” created intentionally by the perpetrator: Ahluwalia, at para. 64, citing the Hon. Allen M. Linden, et al; Canadian Tort Law, 10th ed. (Toronto: LexisNexis, 2015), at

§2.42.

258On the other hand, battery requires non-consensual intentional physical contact of more than a trivial nature of the victim by the perpetrator, or the bringing about of harmful or offensive contact: Ahluwalia, at paras. 61-62.

259Ms. Barreto relies on the definition of battery from Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, 124 O.R. (3d) 641 (“Figueiras”). The Court of Appeal wrote, at para. 142:

The tort of battery is committed whenever someone intentionally applies unlawful force to the body of another. There is no requirement to prove fault or negligence. Nor is there a requirement to prove damage or injury. Relatively simple acts can constitute a battery, such as restraining a person by grabbing their arm or maliciously grabbing someone’s nose. [Citations omitted]

260The Court of Appeal, in Figueiras, at para. 145 described the offensive contact in that case, between a police officer and a demonstrator, as being more than just a “de minimis” touching, but rather a kind of “manhandling” intended to intimidate.

261The law recognizes self-defence as a justification for applying physical force to another person. However, the degree of physical force used must be reasonable and proportionate to the harm threatened and must be in response to an unprovoked assault and battery. In tort cases, the onus of proving that the use of force was in self-defence is on the party asserting this affirmative defence.

262As assault and battery are intentional torts, damage is presumed. This recognizes that the function of these torts is to protect the physical integrity and the bodily autonomy of a person. However, while damage is presumed, proof of causative harm is required for compensation that is beyond a nominal amount.

(i) The Evidence

Ms. Barreto’s Testimony

263Ms. Barreto testified about several incidents of alleged physical battery by Mr. Salema.⁵

The Restraining Incidents

264Ms. Barreto testified that she developed the habit of hitting her forehead with the palm of her hand. She did this because she was depressed, despondent, and frustrated with the lack of attention provided by Mr. Salema. When she did this, Mr. Salema would interact with her physically, ostensibly to restrain her and keep her from harming herself.

265The most common reaction by Mr. Salema would be to physically sit on Ms. Barreto’s chest while twisting her arm behind her back in a restraining position. Ms. Barreto would try to wrestle herself away from Mr. Salema.

266Ms. Barreto testified that this type of event occurred multiple times, starting in 2016 and continuing throughout 2017. Under cross-examination, she testified that it most often occurred in 2017.

267She said that, typically, an argument would precede these incidents. During the argument, she would be crying and would start hitting her forehead with her palm. Mr. Salema would respond by pushing her down, putting his elbow into the upper part of her body, holding her hand, and twisting her arm. She would fight him to get up because she could not breathe as he was pinning her down by sitting on her. She would groan and Mr. Salema would say “don’t make me do this to you”. She suffered scratches on her hands and arms during these incidents.

268She stated that these occurrences were the most common type of battery she experienced during their marriage.

The Choking Incident

269Ms. Barreto testified that she was choked more than once, usually during an argument and sometimes when she was trying to wrestle herself free from Mr. Salema’s pattern of sitting on her chest. She testified that this type of incident also occurred mostly in 2017.

270She provided details with respect to one specific incident that she testified occurred on February 6, 2019. She is precise about the timing because of a text message she sent

contemporaneously to her friend in India, Aditi Gupta, in which she disclosed having just been choked by Mr. Salema.

271In chief, she described the incident as follows. On February 5, 2019, she and Mr. Salema had a bad argument. The next day, she wanted Mr. Salema to stay home from work so they could discuss the prior day’s argument. She was insistent, so when he said no and started to leave, she grabbed his shirt. In response, Mr. Salema put his hands around her neck and squeezed. She closed her eyes, and her body went limp. He then released his hands and stayed home but went into another room and they did not talk.

272Later that day, she texted her friend in India (Ms. Gupta) stating, “Savio tried to choke me today in an argument gone awry. Wasn’t sure if I should share it, but I trust you and know you won’t betray my trust like he has. I am devastated and felt that I could say it to you”. She also sent a WhatsApp message to Mr. Salema stating in part, “Since you wanted to kill me today…The thought that after you lied to me, raped me, continued to deceive me, manipulated me, betrayed me (…) I still forgive you.” There was no response to that WhatsApp text.

273Under cross-examination, Ms. Barreto explained that she grabbed a piece of Mr. Salema’s shirt – possibly in the shoulder area. He was beside her at this time. She repeated that Mr. Salema put his hand around her neck and squeezed to the point she could not breathe. This is when her body went limp, and she was blacking out. She looked into his eyes and saw an expression that seemed to her to suggest that it would be better if she were dead. Then, he removed his hand from her neck. She admitted that she could not recall if he had one or both hands around her neck during the choking. She confirmed she was standing at the time of the incident and fell against the wall, but not to the floor. All she could think about was “get it over with”. She does not know how long the incident lasted. This incident occurred outside of the master bedroom foyer of their home, in the hallway.

274After the incident, Ms. Barreto said that she went to lie down in the guest room and prayed. She was able to get to her room on her own, using the wall to keep her steady.

275She testified that, later that day or the next day, Mr. Salema told her that she was responsible for this incident – she provoked him.

276Mr. Salema put Ms. Barreto’s text to Ms. Gupta to her where she wrote that the choking incident was brief. Ms. Barreto acknowledged the text but said the incident was not brief. She only told her friend that so as not to alarm her too much. She stated she did not recall feeling pain during this incident, but believed that she was going to die.

277She testified that she did not disclose this incident to anyone else at the time, nor did she see a doctor, because she was protecting Mr. Salema’s reputation and because he was her husband. She agreed that, other than her friend, she only disclosed this incident more broadly after their separation in 2020.

278The text to Ms. Gupta and the WhatsApp message to Mr. Salema are prior consistent statements.

279Prior consistent statements are not admissible to demonstrate that the maker is telling the truth, because they tend to be self-serving statements. However, there are exceptions to this general rule. One exception is where the purpose of the prior consistent statement is to rebut an allegation of recent fabrication.

280As noted in R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, a prior consistent statement may be admitted into evidence where there is an allegation that the witness has made up her current story. Notably, the court stated, at para. 5, that:

Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made – it is sufficient that the circumstances of the case reveal that the “apparent position of the opposing party is that there has been a prior contrivance”. It is also not necessary that a fabrication be particularly “recent”, as the issue is not the recency of the fabrication but rather whether the witness made up a false story at some point after the event that is the subject of his or her testimony actually occurred. Prior consistent statements have probative value in this context where they can illustrate that the witness’s story was the same even before the motivation to fabricate arose. [Citations omitted]

281Therefore, I admitted the text to Ms. Gupta as probative to assessing Ms. Barreto’s credibility regarding the implied allegation by Mr. Salema that she is fabricating this incident for the purpose of establishing a tort claim against him and also to confirming the timing of the alleged incident. The motivation to fabricate arose with the allegations of physical assault in the Application and is thus “recent”. I admitted the WhatsApp text for the lack of response by Mr. Salema to this contemporaneous allegation of the choking incident, which is probative to evaluating Mr. Salema’s credibility and because Mr. Salema put this to Ms. Barreto to attempt to impeach her in terms of the duration of the incident.

The Head-Slamming Incidents

282Ms. Barreto testified that, on one occasion in 2017, Mr. Salema pulled her head by her hair and banged it against the wall. This happened in response to her hitting her forehead with the palm of her hand which she did often because she was depressed, despondent, and frustrated. Mr. Salema would react on these occasions by physically interacting with her in different ways. She testified that she was not self-harming – there was never any injury done to herself through this nervous habit of hitting her forehead in this manner.

283Under cross-examination, she described three additional incidents all in 2017.

284On one of the three additional occasions, she said Mr. Salema “slammed” her against the floor after pushing her against the wall. On one of the other occasions, he “slammed” her head against the wall in the master bedroom foyer between the bathroom and linen closet. This time, she was banging her head against the wall. He pulled her hair and pushed her head against the wall violently.

285On yet another occasion, they were having an argument and he “grabbed” her hand and threw her onto the foyer floor. She said her head was protected but there was an impact. She said it “felt like a wrestling match the way I was thrown on the ground”. She was “flat on the ground” and Mr. Salema left her there.

286All in all, she described four specific incidents.

287She testified there were other similar occasions in which Mr. Salema would bang her head against a hard surface, prompted by her hitting her forehead with her palm, typically during arguments. He would lose his temper and hurt her in this way. She could not provide details of all the occasions because, she said, there were so many of them. She reiterated that Mr. Salema always blamed her for these incidents. He would claim that she made him do this to her.

288In cross-examination, Mr. Salema showed Ms. Barreto a text message she sent to him dated December 1, 2017 (referenced earlier in the Reasons) in which she pronounced that “[h]opefully, this will be my last year of life” and described 2017 as her “most wretched year”. Ms. Barreto responded that it was her most wretched year because of the abuse she suffered that year. She confirmed that she was hoping she would not have to deal with the abuse any longer and that her life would end. However, she did not make plans to commit suicide. She sent this with the hope that he would provide comfort and support and change his behaviour.

289In cross-examination, she also agreed that in some past text messages she used profane language towards him, including in a text sent by her on February 11, 2019, a few days after the choking incident. She was angry with him because he refused to go on a weekend long marital therapy course which cost $4,000 with her. Mr. Salema’s suggestion appeared to be two-fold. First, that if she was using profane language towards him, she was not likely an abuse victim. Second, the profane language supported his position that he was the abuse victim.

Mr. Salema’s Evidence

290Mr. Salema’s evidence as to the source and type of turmoil suffered during the marriage is quite different from Ms. Barreto’s, though there is some overlap. He testified that Ms. Barreto was never satisfied with the life they were living, and that this unhappiness heightened when they moved to Canada from the United States, resulting in Ms. Barreto becoming physically abusive towards herself and him. Ms. Barreto’s unhappiness focussed on her view that they had a better standard of living in the United States, and they could not afford that standard of life in Canada.

291Mr. Salema admitted that he authored and received the subject written and verbal communications with Ms. Barreto’s family in secret. He admitted that he effectively engaged in a pattern of behaviour that did not portray Ms. Barreto in a positive light to her family and insisted her family keep their communications confidential. He testified she did not know she was being recorded, and that the surreptitious recording admitted into evidence is authentic and the whole recording. However, he stated that his motivation was not to inflict emotional distress on Ms. Barreto. Rather, his motivation was his own self-preservation. He claimed that he is the real victim of abuse – physical and emotional – by Ms. Barreto and that he feared Ms. Barreto might take her

own life. He needed her family to know what was going on so that when he left the marriage they would understand.

292Another reason for these secret communications was that he feared that if Ms. Barreto took her own life, he would be blamed by the family. He believed that Ms. Barreto was suicidal, and she engaged in self harm repeatedly. None of Ms. Barreto’s family members lived in Canada, so they could not witness Ms. Barreto’s behaviour firsthand (apart from isolated visits to Canada as described). As stated in his November 28, 2017 email (under Luis Barreto’s name) to the Barreto siblings, as he was planning his first exit from the marriage, “[a]s hard as it is, you will have to pretend you know nothing or base things on what Mama and Papa may have told you after their trip…This could possibly be Liesl’s last [C]hristmas.” He testified that it was for his own protection from Ms. Barreto that he required confidentiality from the Barreto family.

293Mr. Salema agreed that when Ms. Barreto’s brother, George, wrote to him and stated that the siblings wanted to come clean with Ms. Barreto as it was not fair to her that all these accusations about her were being made without her having an opportunity to respond, Mr. Salema blocked that effort and persuaded George and her siblings to keep the secret.

294Mr. Salema denied that he ever choked Ms. Barreto or intentionally slammed her head into the wall or floor. He does admit that he engaged in a number of physical restraining incidents, though he says he was justified. He testified there were physical altercations with Ms. Barreto, but they were not his fault. Either Ms. Barreto provoked him by punching and/or pulling his hair giving rise to self-defence, or Ms. Barreto was self-harming requiring him to physically intervene. He testified that on one occasion, Ms. Barreto kicked him with her boots, but he did not suffer any injury from that incident. Mr. Salema did not go into detail with respect to the physical actions alleged against Ms. Barreto that resulted in his physical interventions. He also testified that, generally when Ms. Barreto engaged in this physical outlash against him, he would simply roll up in a ball and endure it until she stopped of her own accord.

295His description of the physical altercations began with incidents in the period leading up to her parents coming to visit in October 2016. Ms. Barreto became anxious about her parents coming and seeing their modest condominium unit in North York. She wanted it to be improved and to buy furnishings and objects for their home. In her anxious state, she began punching him and pulling his hair. As stated earlier, Mr. Salema testified he told Ms. Barreto’s mother about the physical abuse he was experiencing from her.

296He explained that their arguments were usually related to her complaints about their lifestyle, lack of a car, poor location in the suburbs, and the like. Ms. Barreto also formed a habit of buying too many items from auction houses. Mr. Salema took a video of some of the items when he left the matrimonial home and there is an abundance of items visible.

297Whenever Mr. Salema would protest, he said that this caused friction and Ms. Barreto became self abusive. He explained that she would “get into a mode of self abuse – hitting her head repeatedly” against the wall or with the palm of her hand.

298In response, he would have to restrain her to protect her from herself. He described the mode of restraint as a hug. He testified that he would hold on to her hands when she tried to get away from him during these physical interactions. However, he denied ever scratching her. He agreed that she would get out of breath during these restraining episodes. He acknowledged that she would struggle to get free. He admits this scenario happened frequently.

299He described one incident in which Ms. Barreto was hitting her head against the wall. He put his hand behind her head to block the wall. When she moved, he put his hand on her forehead. She struggled and hit her head on the wall accidently.

300He said that some of the physical force he employed against Ms. Barreto was in self- defence to her punching him and pulling his hair. For example, he described an incident that occurred on May 30, 2017, as a fight in which Ms. Barreto grabbed his hair with both hands. In self-defence, he pushed her hands away from his head and used his legs to restrain her. He stated that he inadvertently touched her inappropriately between her legs with his legs. In that moment, she told him that he was going to kill her.

301He said that when Ms. Barreto got upset, she would sometimes get a pair of scissors or a knife and threaten to self-harm. In one incident, he grabbed the sheaf of the knife she was holding to herself and broke the blade. She cut herself with the broken blade. He said the photograph of her cuts that are in evidence from the end of May 2017 are of this incident. Ms. Barreto sent them to him to remind him of what he did to her. He claimed that the date she attributed to these photographs was wrong.

302It was the context of the May 2017 incident that Mr. Salema said prompted him to contact her parents to come to Canada urgently under the false pretext of celebrating Ms. Barreto’s birthday.

303Mr. Salema said he called Ms. Barreto’s parents and told them that their daughter was self- harming by cutting herself, was going to kill him, and that she told him she wanted a divorce. He said they could not do anything.

304He claims to have called his Employee Assistance Plan (“EAP”) and spoken to a counsellor about Ms. Barreto’s behaviour. He did not produce the EAP records and did not call the counsellor as a witness.

305He said that this type of incident with a knife and threats to self-harm occurred on a few occasions. Both their hands would be cut.

306He left Ms. Barreto for the first time in December 2017 due to what he described as her abusive behaviour towards him. He produced certain emails from December 2017. The first was an email from Ms. Barreto’s eldest sister, Louella Alberto, to him. There were also two emails from her brother, George, dated December 7 and 10, 2017 and his email to George on December 11, 2017, advising him that he would be leaving Ms. Barreto on December 21, 2017 but not to tell her. He did leave on this date without any advance warning or notice to Ms. Barreto as to where he was going.

307Mr. Salema tendered an eight-page email dated January 8, 2018 from Ms. Barreto to him as the reason why he decided to return to her in February 2018. The context of this email appears to be Ms. Barreto imploring Mr. Salema to come home, stating that she has changed her behaviour. However, the behaviour Ms. Barreto claims to regret is unclear, particularly in light of her testimony that she was always apologizing for provoking Mr. Salema into physical altercations that she believed, at the time, were her fault. However, this email was not put to her under cross- examination and I decline to place any weight on it in evidence, based on the rule in Browne v. Dunn, 1893 65 (FOREP), 6 R. 67 (H.L.). It would have been prejudicial and unfair to not give Ms. Barreto an opportunity to explain the email. There was no reason offered by Mr. Salema for failing to put this to her on cross-examination. In any event, Mr. Salema submitted that he was not adducing the email for the truth of the contents or as an admission by Ms. Barreto.

308However, the email is relevant in terms of being the reference point for Mr. Salema’s return to the marriage. I admitted it for this limited purpose. It was not entered for the purposes of impeaching Ms. Barreto’s testimony or as an admission of IPV. Mr. Salema confirmed he was not relying on the email for either of these purposes.

309Mr. Salema specifically denies that he attempted to choke Ms. Barreto on any occasion. With respect to the February 6, 2019 incident, he testified that, on that day, they had an argument over her desire for him to stay home from work. However, he needed to go to work. The reason, unbeknownst to Ms. Barreto, was because he was contacting his realtor from work to find new accommodations as he planned to leave her. When he refused to stay home, Ms. Barreto grabbed his shirt, pulled him back from the door and a physical struggle ensued. Ms. Barreto pulled his shirt apart and all the buttons ripped off his shirt. However, this time he was desperate to leave so he put his hands on her shoulders. He testified that his hands “may” have been “slightly towards her neck”. He said he had performed this manoeuvre on Ms. Barreto before. However, when he noticed she was not resisting and closed her eyes, he put his arms around her to hold her up. She opened her eyes and told him if this is what he wants to do to her, he can do it. He turned away from Ms. Barreto and changed his shirt. He worked from home that day because he missed the bus. He acknowledged that, later that day, she sent him the email accusing him of wanting to kill her.

310He testified that Ms. Barreto agreed to go to marriage counselling. He used the money he had been saving for his first and last month’s rent, given his plan to leave the marriage. They went to marriage counselling, though no notes were tendered in evidence and neither party called the marriage counsellor.

311On February 8, 2019, he communicated with his realtor saying that the search for new accommodations was off as he was trying to save his marriage. He wrote, in part, “on Wed night, [choking incident] my wife somehow (probably checked my call records online as I was careful to delete all call records and texts from my phone) came across my calls to you and confronted me about them. I am no good at making up stories so I told her the truth that I was looking to move out…”. There is no suggestion by Mr. Salema that he in fact told Ms. Barreto he was looking to move out. To the contrary, he testified he was concealing that fact from her.

312Mr. Salema stated that he deleted the early emails he had sent to Ms. Barreto’s parents when she demanded he give her his phone. However, he confirmed that he then used a different account (her father’s, Luis Barreto) to send further emails to the family unbeknownst to Ms. Barreto for the same reasons already explained by him.

313He testified that Ms. Barreto’s behaviour towards him did not improve but deteriorated and so he started to plan his exit again without her suspecting. He started “sneaking his clothes” into his locker, and left on August 21, 2020 for good.

314Mr. Salema admitted he engaged in non-consensual physical forceful contact with Ms. Barreto but claimed that this was justified by self-defence and/or to protect her from ongoing acts of self-harm. He also stated that he was advised by his own doctor that Ms. Barreto has a histrionic personality, though that doctor did not assess Ms. Barreto, and his doctor was concerned for Mr. Salema’s personal safety.

c) Assessment of Credibility and Findings Regarding the Torts of Intentional Infliction of Emotional Distress and Assault and Battery

315I can accept some, all or none of a witness’ evidence.

316Ms. Barreto’s evidence was sometimes argumentative. However, she was consistent in the telling of the incidents of the alleged abuse. Her version of events makes sense particularly when viewed in the context of the extensive email and text evidence adduced. She was able to articulate some of the incidents of physical abuse in detail, recognizing in her testimony that, with respect to the restraining incidents in particular, they were too numerous to describe individually. It is not unusual for victims of repeated incidents of violence that occur in more or less the same manner to become unable to distinguish each individual incident one from the other. She did not embellish her testimony about these incidents.

317Ms. Barreto’s version of events was generally supported by the witnesses she called. Her sister, Ms. Alberto, supported her belief that she was effectively being gaslighted by Mr. Salema through his secret communications with her family. Furthermore, as will be discussed under damages, she suffers from Post Traumatic Stress Disorder (“PTSD”) caused by life threatening events perpetrated by Mr. Salema. While this latter point is not corroborative of abuse, it is confirmatory of it because there were no other life-threatening events that would satisfy this diagnostic criterion, as supported by the expert opinion evidence of Dr. Cook. Also, as will be further explored, Dr. Cook did not diagnose Ms. Barreto with a histrionic personality (contrary to Mr. Salema’s evidence) nor any other psychiatric disorder that would call into question Ms. Barreto’s perception of reality or ability to tell the truth accurately. This does not mean, however, that Ms. Barreto is incapable of fabricating events willfully.

318The fact that Ms. Barreto stayed in an abusive relationship and did not report it contemporaneously are not relevant to assessing her credibility as they reflect myths that have been discredited. As stated, there is no single “right” or “wrong” way for a victim of trauma to react to the trauma they are experiencing.

319Mr. Salema’s evidence was also argumentative from time to time. Furthermore, he was often dismissive of Ms. Barreto’s questions under cross-examination. Most troubling about his evidence, however, is his explanation that those parts of his secret emails to her family that were favourable to him and consistent with his story at trial are truthful and accurate, but other portions of emails which were inconsistent with his story contain falsehoods. These alleged falsehoods were focussed on him telling the Barreto family that Ms. Barreto was blameless for their marital discord and in fact he was to blame because of his treatment of her. His explanation for fabricating the seemingly inculpatory statements lacked an air of reality when viewed in the context of the fact that he:

(a) never premised the allegedly false statements by saying they reflected Ms. Barreto’s perspective and not his own, leaving the reader to reasonably believe that he was adopting the truth of those statements;

(b) did not show that Ms. Barreto ever discovered the secret emails and took further measures to hide them (by creating an email address from her father) when he thought she might discover them, and

(c) was unlikely to share emails in which he expressly asked or reminded her family to keep these same communications secret from Ms. Barreto.

320For example, there is no evidence that the November 7 and 9, 2010 emails between Mr. Salema and Ms. Barreto’s parents were in fact shared with Ms. Barreto. Again, it strains credulity to accept that Mr. Salema intended for Ms. Barreto to see the same communications in which he asked her parents to keep matters private between them and not share them with her. This explanation is also in contradiction to his testimony that he understood from Ms. Barreto that he was never supposed to tell anyone about their private affairs.

321Mr. Salema effectively admitted that he embarked on a pattern of deceiving Ms. Barreto, and her family for that matter, as early as November 2010, by writing what he considered to be partially false emails to her parents for various reasons. When favourable to his side of the story, he adopted the truth of those statements he had written in his emails to Ms. Barreto’s parents. However, when presented with his statements in those emails that were consistent with Ms. Barreto’s version of the story, he claimed they were false. This pattern of intentional deception by Mr. Salema demonstrates that he can be manipulative and cannot be believed with respect to his version of these events.

322Mr. Salema’s explanation that he was fearful that Ms. Barreto would either commit suicide or seriously self-harm is not plausible. He did not seek professional mental health care supports or help for Ms. Barreto. If he was seriously concerned that she was going to end her life in 2017, as he told her family, a reasonable person in his shoes would have reached out for professional help for her by calling 911 when these alleged self-harm episodes occurred. It was not reasonable or appropriate for a person in Mr. Salema’s situation to instead have engaged in a pattern of physically restraining a person in the state of distress Mr. Salema attributed to Ms. Barreto.

323Mr. Salema’s explanation that he sometimes was acting in self-defence also lacks an air of reality. He only gave a vague description of the incidents he characterized as hair pulling and punching. More importantly, he testified that during these incidents, he would typically roll up in a ball until Ms. Barreto stopped. This is at odds with his claim that he exerted physical force against Ms. Barreto’s alleged striking out against him.

324Mr. Salema failed to call any fact witnesses to support his version of events. He did not call any member of Ms. Barreto’s family to whom he allegedly verbally described being abused by Ms. Barreto. He did not provide any explanation for this decision. He also claimed that he spoke to a counsellor over the phone under his EAP about the challenges he was experiencing with Ms. Barreto but did not call that counsellor and the related counselling records. As well, he claimed that he disclosed his challenges to his family doctor who told him, ostensibly, that Ms. Barreto suffered from a histrionic personality disorder and expressed concerns for his safety, but he did not call the doctor. In these circumstances, it is appropriate to draw an adverse inference against Mr. Salema; namely, that these potential witnesses would not have supported his version of events had they testified at trial.

325For these reasons, I find Ms. Barreto’s version of events as a whole “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” (Faryna at p. 357). Accordingly, I favour Ms. Barreto’s evidence over that of Mr. Salema where the evidence on the tortious acts differs.

326Ms. Barreto has satisfied, on a balance of probabilities, the elements of the tort of intentional infliction of emotional distress with respect to the pattern of deceit that Mr. Salema inflicted upon her in the form of gaslighting (to use Ms. Barreto’s word). This occurred through Mr. Salema sending illicit emails to the Barreto family in secret, questioning Ms. Barreto’s sanity and perception of reality, and creating circumstances that were designed to make her question the reality of the abusive situation she was in, such as when he would call her the abuser during the restraining incidents, mock her expressions of worthlessness and, on one occasion, suggest she would be better off dead.

327It is clear from Ms. Alberto’s testimony that Mr. Salema had won over the siblings and parents to his version of events according to which Ms. Barreto was the problem, being violent, abusive, unhinged and at risk of self-harm and suicide.

328This conduct is flagrant and outrageous, was calculated to produce harm, and, as will be discussed under damages, resulted in visible and provable injury.

329Ms. Barreto also testified that, during the marriage, she would account for every dollar she spent. Mr. Salema demanded that. When he closed their joint bank account after separation, knowing that she had no independent sources of income other than her limited savings in her TFSA, she experienced this as financial abuse.

330However, I find that Ms. Barreto has not established that the pattern of financial control over her that she attributes to Mr. Salema satisfies the elements of this tort. Ms. Barreto described Mr. Salema’s financial control as needing his consent to spend money and being particularly

focussed on Mr. Salema’s decision to stop depositing money into their joint account several months after separation. They did buy many objects for the matrimonial home in the face of Mr. Salema’s protests. In any event, I am not satisfied that the alleged financially coercive acts were flagrant and outrageous or caused a visible and provable injury.

331Ms. Barreto has proven that Mr. Salema committed acts of physical assault and battery in the form of the choking incident, head slamming incidents, and restraining incidents.

332Mr. Salema applied physical force against Ms. Barreto that was offensive, non-consensual, and violated her physical integrity and autonomy over her body when he choked her on one occasion in 2019, repeatedly physically restrained her on numerous occasions, and banged her head into the wall on at least four separate occasions. His acts are not justified as acts intended to prevent Ms. Barreto from harming herself. Ms. Barreto never took steps that would be injurious to herself except in a minor way when she reacted in despair by hitting her forehead with the palm of her hand. Had Ms. Barreto been engaging in a patten of hitting forcefully her head against the wall, then some physical intervention by Mr. Salema may have been warranted. However, I have found that it was Mr. Salema who banged her head against the wall.

333Ms. Barreto’s pattern of hitting her forehead with the palm of her hand never resulted in any bruises, contusions, or other physical injuries to herself as was or ought to have been apparent to Mr. Salema. Rather, he took advantage of these opportunities to engage in a manner that was consistent with his efforts to convince Ms. Barreto that she was the abuser and that he was the victim, forcing him to exert physical control over her.

334Mr. Salema has not proven that he was the subject of unprovoked physical attacks by Ms. Barreto and that his application of force was, therefore, in self-defence. Furthermore, he was not justified in engaging in the restraining actions ostensibly to prevent Ms. Barreto from harming herself. Had he genuinely believed that Ms. Barreto’s actions would result in serious self-harm, he had other options to assist Ms. Barreto, such as calling 911 for emergency assistance or seeking intervention by skilled professionals. He stated that he did contact his EAP and his doctor for his own assistance but did not take any steps to obtain help for Ms. Barreto. With respect to those restraining incidents responding to Ms. Barreto hitting her forehead with the palm of her hand, the force used was, in any event, excessive and disproportionate to Ms. Barreto’s actions.

d) Public Disclosure of Private Information and Breach of Confidence

335The email dated September 8, 2020 from Mr. Salema to the Barreto family and the surreptitious recording that Mr. Salema shared with her family are relied upon by Ms. Barreto as the foundation of her breach of public disclosure of private information or alternatively her breach of confidence claim.

336Mr. Salema submits that by the time of the email, he was no longer Ms. Barreto’s husband and he owed no duty to her. Furthermore, he submits that he was justified in sharing these communications with the Barreto family.

i) Elements of the Torts

337Ms. Barreto relies on Del Giudice v. Thompson, 2021 ONSC 5379, [2021] O.J. No. 4218 (“Del Giudice”), at para. 183:

The elements of a breach of confidence are: (1) the plaintiff imparts information having a quality of confidence (confidential information); (2) the information was imparted in circumstances in which an obligation of confidentiality arises (communications in confidence); and (3) the defendant makes an unauthorized use of the information (misuse of information).

338Ms. Barreto did not rely on any other caselaw, including to support her position underlying the tort of public disclosure of private facts.

339Mr. Salema relies on Jane Doe 72511 v. N.M., 2018 ONSC 6607, 143 O.R. (3d) 277 ("Jane Doe 72511"), at para. 99, as setting out the elements of public disclosure of private facts:

To establish liability, the plaintiff must therefore prove that:

(a) the defendant publicized an aspect of the plaintiff’s private life;

(b) the plaintiff did not consent to the publication;

(c) the matter publicized or its publication would be highly offensive to a reasonable person; and

(d) the publication was not of legitimate concern to the public.

340Also of note, in Jane Doe 72511, at para. 97:

I agree with the elements of the cause of action proposed by Stinson J. [at para. 41] which for convenience sake I will reproduce again here:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

341Ms. Barreto’s position appears to be premised on the assumption that all communications between spouses is presumptively confidential. This assumption is overbroad. The information at the heart of the complaint must meet the three elements articulated in Del Giudice to establish breach of confidence.

342The surreptitious recording does not meet the elements of breach of confidence. Ms. Barreto has not demonstrated that the communications between she and Mr. Salema revealed confidential information, or that they arose in circumstances that gave rise to an obligation of

confidentiality. It is not enough to merely state that these communications arose between spouses – that casts far too wide of a net.

343Ms. Barreto did not demonstrate that this recording meets the test for public disclosure of private facts. At issue in Jane Doe 72511 was the defendant’s posting on the internet of a sexually explicit video of the plaintiff without her permission. Mr. Salema’s sharing of the surreptitious recording confidentially with Ms. Barreto’s family does not meet this bar.

344In any event, the surreptitious recording has been dealt with as part of the pattern of manipulative behaviour under the intentional infliction of emotional distress which is, in my view, the better place to address it.

345The September 8, 2020 email written by Mr. Salema to Ms. Barreto’s family members is 17 pages long. He testified that it was therapeutic for him to write. In it, he essentially is giving his version of their married life.

346Again, Ms. Barreto has not satisfied me that the information written in this email was confidential or arose in circumstances giving rise to a duty of confidentiality. While she did not draw the court’s attention to the specific portions of the email that she bases her claim on, she explained in cross-examination that she objected to the sharing of details of their couples counselling, her individual therapy, the assignments she completed for psychodynamic therapy, the impact of the first separation in 2017, and their discussions about having children. She considers the fact he shared it with her family to be a form of publicizing the information. She explained that the adverse impact on her was that it damaged her relationship with her family as they were ready to sever their relationships with her.

347However, the email was not publicized by Mr. Salema – it was written to Ms. Barreto’s family with the reasonable expectation that they, in turn, would not publicize the information contained.

348In any event, this email was dealt with as part of the pattern of manipulative behaviour engaged in by Mr. Salema under the intentional infliction of emotional distress and therefore, I will deal with the impacts of these communications under that tort.

349As an aside, I reject Mr. Salema’s defence that by September 8, 2020 he was no longer Ms. Barreto’s spouse and therefore owed her no duty of confidentiality. First, he was still legally her spouse. Second, former spouses still owe a duty of confidentiality to each other relating to confidential matters shared during the course of the spousal relationship. The obligation attached to those confidential communications survives divorce.

350Ms. Barreto’s claim based in breach of confidence and, alternatively, the tort of public disclosure of private facts is dismissed.

e) Damages

351Historically, damages arising from IPV, including for assault and battery, have been low, particularly as compared with civil awards arising from comparable assault and battery in a non-

intimate partner context. This may be because the spouse failed to prove significant harms either through expert or other evidence and because courts have increasingly come to recognize the insidious harms that can be caused by IPV.

352As observed by the Court of Appeal in Ahluwalia, at para. 128, “the quantum of damages historically awarded may need to evolve to better reflect the current societal understanding of the extent of these harms”. This observation finds support in the evolution of damages arising from the civil torts of sexual assault and battery. Whereas previously awards for civil sexual assault would be in the range of $25,000-$50,000 for non-pecuniary general damages, our court has since recognized that the “low end” of such damages is over $100,000 (adjusted annually) and the upper end is in or around $380,000. Our court in D.S. v. Quesnelle, 2019 ONSC 3230, [2019] O.J. No. 4773 following the case of S.Y. v. F.G.C. (1996), 1996 6597 (BC CA), 26 B.C.L.R. (3d) 155 (B.C.C.A.) held that the personal injury cap does not apply to sexual assault and battery claims.

353Indeed, in Ahluwalia, the court did not interfere with the trial judge’s award of $50,000 for general non-pecuniary damages and $50,000 for aggravated damages arising from the tort claims (for a total of $100,000), but only set aside the punitive damages award of $50,000. The court indicated that $100,000 was on the high end for the claims before it (physical assault and battery and the intentional infliction of emotional distress, which the trial judge made findings of in the alternative to the tort of family violence). Notably, however, in Ahluwalia, no expert medical or psychological evidence was led to support the spouse’s claim for damages.

i) Causation and Harms

354For negligence claims, the applicant must establish both causation in relation to liability and causation in relation to damages. However, intentional torts are actionable without proof of causation or damage: Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880, at p. 890; Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226, at para. 54.

355The prevailing test continues to be the “but for” test; that is, would the injury or harm have occurred “but for” the tortious conduct: Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 21; M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135,

2012 ONCA 135, 109 O.R. (3d) 351 (“M.B.”), at para. 26.

356In cases where there are multiple potential causes of injury, the court must consider whether the injuries are divisible or not. Indivisible injuries are those that cannot be individually allocated to a specific and distinct cause. If the injury is indivisible, providing the tort is “a cause” of the victim’s injuries (beyond de minimus), the perpetrator will generally be liable for the whole of the injuries, unless the respondent establishes that the victim suffered from a pre-existing condition prior to the abuse and there is a “measurable risk” that the condition would have led to the development, at least in part, of the subject injury or harm (crumbling skull in tort law): Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, at para. 35; K.M. v. Marson, 2018 ONSC 3493, 83 C.C.L.I. (5th) 1

(“K.M.”), at paras. 531- 534.

357Once the cause of the injury or harm is established, the court must then conduct an inquiry as to the extent of the harm caused by the tortious conduct: M.B., at para. 31. This latter step

informs the quantum of damages and recognizes that the victim should not be placed in a position that is better than her pre-abuse position: Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, at para. 78; K.M., at para. 526.

358The courts now recognize that expert evidence is not always needed to establish causation:

Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 38; see also, A.B. v. Main, 2023

NSSC 47, [2023] N.S.J. No. 23, at paras. 39-42.

359In this case, Mr. Salema testified that, in his view, Ms. Barreto’s current psychological symptoms, disorders and effects were caused by childhood abuse allegedly committed by her mother. He did not call any independent evidence to support his view.

360On the other hand, Ms. Barreto called expert evidence to support her claim and testimony that her psychological harms were caused by Mr. Salema’s tortious conduct arising from the intentional infliction of emotional distress and physical battery.

361Ms. Barreto called her treating therapist, Angela Slingerland, as a participant expert witness. She also called Dr. Bruce Cook, a registered psychologist and psychological associate, as a litigation expert witness.

362In Girao v. Cunningham, 2020 ONCA 260, [2020] O.J. No. 1729 (“Girao”), at paras. 39- 41, the Court of Appeal set out the governing principles with respect to the admission of expert evidence. In short, the proposed expert evidence must meet the following criteria for admissibility:

a. The proposed evidence must be relevant to an issue in the proceeding;

b. The evidence must be necessary in assisting the trier of fact – it is not meant to replace common sense inferences as they are within the domain of the trier of fact;

c. The evidence must not attract an exclusionary evidentiary rule; and

d. The proposed expert must be properly qualified to offer the opinion evidence.

363Once these four factors are satisfied, the trial judge must still exercise their gatekeeper function: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2

S.C.R. 182, at para. 24.

364The difference between a participant expert and a litigation expert is that the participant expert may only testify as to opinions, observations and findings made during the course of their participation in the underlying events: Girao, at para. 40.

365In the case of treating health care professionals, such as therapists, this means that the participant expert may only testify about their clinical judgments, observations, conclusions, opinions, and findings made during the course of their treatment of the patient (the underlying event). Any opinions formed beyond treatment for the purposes of the court case are inadmissible.

ii) The Evidence

Ms. Barreto’s Testimony

366Ms. Barreto testified as to the impacts she says she experienced as a result of the family violence related torts she suffered at the hands of Mr. Salema during the course of their marriage.

367She testified that she became very depressed and suffers low self-esteem due to Mr. Salema putting her down and mocking her. She said that he once told her she would be better off not living. She felt worthless and felt she was to blame for all their marital unhappiness. Once they bought their home, she felt that she stopped mattering to Mr. Salema entirely. As a result of her state of depression, she would repeatedly hit her forehead with her palm. She started to believe that perhaps she would be better off dead.

368During the restraining incidents, she sometimes suffered scratches to her arms as she struggled to break free. Her head would hurt after being hit against the wall. She had difficulty breathing when Mr. Salema sat on her and she nearly blacked out during the choking incident. However, she did not suffer any long-term or serious physical injuries requiring medical treatment or hospitalization.

369She felt betrayed when she found out that Mr. Salema had been writing to her family behind her back and portraying her as crazy, abusive, suicidal, and unforgiving. This pattern of behaviour caused a rift between her and her family such that she lost their emotional support and trust.

370She took on the guilt and shame of being called an abuser by Mr. Salema. She felt she was going crazy because she believed Mr. Salema when he said she was the abuser and that he was restraining her for her own good, when all along she was the victim of abuse. She believed that she was the cause of the marital difficulties when, in retrospect, Mr. Salema created much of the discord.

371She stated that she had heart problems as a result of the anxiety induced by Mr. Salema and went to the emergency department of her local hospital (though no medical evidence was led to support this claim).

372She has experienced severe anxiety; for example, when going to the grocery store on her own. She lost her self-confidence and was fearful all the time. This impacted her ability to do anything, including seeking employment after separation.

373She explained that she suffers from flashbacks of the abuses which make her feel like she is back in the abusive incident such that she does not know, in the moment, what is real and what is a flashback.

374She said that the abuse impacted her mentally by making her question her perception of reality. She was humiliated to her family. She felt diminished because she stayed at home to look after Mr. Salema and his career, and he wiped out everything she did over their 17-year marriage as worthless. She said her value as a wife and a woman was destroyed. Some days, she cannot get out of bed and cannot explain it. She experiences guilt and shame for her mental health diagnosis.

She was dismissed during the marriage when she expressed her feelings of dismay to him. She says that Mr. Salema betrayed her trust through his deceit and by using her family in his deception. She has difficulty focussing and concentrating, and suffers from drowsiness.

375Her financial instability after separation also aggravated her anxiety as she did not know how long she could manage on her savings. If she lost the home, she had nowhere to go. She had no family and no close friends she could turn to in Toronto.

376Mr. Salema would pretend to be nice to her indicating that he wanted to save the marriage, but she discovered after he left that he was not sincere and was planning to leave all along. She said the impact of the IPV-related torts was like a nightmare to her.

377She also testified that she looked online to determine her costs for future therapy. She testified that typical psychotherapy costs between $125 and $175 per hour, while registered psychologists charge $225 to $250 per hour plus HST. However, she has not made a claim for the cost of future therapy or any pecuniary damages for that matter. She also testified that her doctor is able to provide Eye Movement Desensitization and Reprocessing (“EMDR”) for PTSD, and she is considering this form of treatment.

378Ms. Barreto testified that she first disclosed the abuse (other than the choking incident) in the fall of 2020 in therapy.

Dr. Bruce Cook

379Dr. Cook graduated in 2002 with a Doctor of Philosophy in Clinical Psychology from Southern California University for Professional Studies. He became a Registered Psychological Associate with the College of Psychologists of Ontario in 2005.

380At the time of assessing Ms. Barreto, Dr. Cook was a registered psychological associate with the College of Psychologists of Ontario with competencies in both clinical and forensic psychology.⁶ He practiced for 32 years, with considerable experience in conducting forensic risk assessments for the National Parole Board and federal institutions, as well as in adult mental health clinics, and in-patient psychiatry units. He also had a private practice in therapy. He has conducted numerous psychological assessments using psychometric tests and clinical assessments, including arising from domestic violence, interpersonal violence, and sexual violence.

381He has been qualified as an expert witness by our courts.

382During his diverse career, he conducted psychological assessments for active-duty soldiers as a member of the mental health team. The assessments he conducted were primarily to evaluate

depression, anxiety, and PTSD. In his private practice, he assessed and treated patients for various mental health disorders, including depression, anxiety, PTSD, and bipolar disorder.

383Before retiring, Dr. Cook had the authority to diagnose mental disorders from the College of Psychologists of Ontario as a registered psychological associate.

384There was no objection to Dr. Cook’s qualifications, and I was satisfied by Dr. Cook’s qualifications. Dr. Cook was qualified as an expert witness in the fields of clinical and forensic psychology.

385While there was no objection by Mr. Salema to Dr. Cook’s qualifications, he raised a concern that Dr. Cook had not provided his clinical notes and records. However, I accepted Dr. Cook’s explanation that he had no clinical notes and records relating to this assessment, other than the raw psychometric test data which he is prohibited from disclosing to anyone other than another registered psychologist or psychological associate, pursuant to the College of Psychologists regulations. Furthermore, Dr. Cook’s expert report was provided to Mr. Salema over a year prior to trial and was comprehensive.

386Dr. Cook testified that Ms. Barreto asked him to conduct a clinical diagnostic assessment of her to investigate her mental health status, including a personality assessment, mood indicators, and measures for trauma.

387His clinical assessment included a clinical interview via a video clinical platform and a number of psychometric tests: Personality Assessment Inventory (PAI), Trauma Symptom Inventory-2-A (TSI-2-A), Beck Depression Inventory-II (BDI-II), and Beck Anxiety Inventory (BAI). He conducted a Comprehensive Clinical Interview (CCI) which is a structured diagnostic interview. These tests and the structured interview are well recognized in the psychology community. He called this battery of tests the gold standard.

388Notably, Ms. Barreto denied attempting suicide or having a plan to commit suicide. She also denied being suicidal at the time of the interview. She denied witnessing any domestic violence between her parents at her childhood home, or there being any issues with substance or alcohol abuse. She did admit that she experienced physical discipline which was “culturally commonplace” during her developmental years. She also admitted to experiencing some form of verbal and physical abuse by her mother during her childhood.

389Ms. Barreto reported never having been diagnosed with any learning disability and achieving her speech milestones. She reported experiencing no significant delays in terms of her motor development nor any academic or behaviour issues in elementary school. It was noted that she completed her master’s degree in psychology from a university in India and practiced as a child psychologist there for two years prior to her marriage. She reported that, after marriage, she could not work because they moved around for her spouse’s job.

390She also reported that she came to Canada in 2010 and became a permanent resident in 2012. In 2018, she worked at an anger management facility as a part-time counsellor teaching anger management classes.

391Dr. Cook testified that, while the psychometric tests he administered were based on self- reports by Ms. Barreto, some of them featured validity scales aimed at determining whether the responses demonstrated malingering or were otherwise unreliable (e.g., due to exaggeration, inconsistent responses, etc.). These measures showed that Ms. Barreto’s responses were reliable and valid for the purposes of evaluating the test results.

392Dr. Cook explained the purposes of each of the tests and the results. He emphasized that the psychometric test results are only one element, along with his clinical interview, experience, and expertise, that informed his opinion.

393Dr. Cook’s opinion is that Ms. Barreto meets the diagnostic criteria for the following diagnosis, under the DSM-5-TR⁷:

a. Post-Traumatic Stress Disorder (Chronic): F43.1

b. Agoraphobia: F40.0

c. Major Depressive Disorder, Severe, Single (with Anxious Distress): F33.2

394In addition, Ms. Barreto suffers from clinically significant levels of anxiety and suicidal ideation (preoccupation with suicidal thoughts) but has made no suicide attempts nor plans to commit suicide.

395Dr. Cook testified that Ms. Barreto’s mental health disorders and symptoms are caused by the domestic (now referred to as intimate partner) violence she suffered at the hands of Mr. Salema.

396She experiences flashbacks of past incidents of being physically assaulted and choked by Mr. Salema. She experienced these incidents as life-threatening events, particularly the choking incident. She has intrusive thoughts of these incidents. She continues to struggle with these issues, without the benefit of social support.

397Dr. Cook diagnosed her depression as severe and caused by the IPV she suffered.

398Furthermore, Ms. Barreto’s self-esteem has been significantly impaired as a result of the IPV.

399Dr. Cook also testified that her trauma and anxiety symptoms are linked to her diagnosis of agoraphobia. She is reluctant to venture outside of her residence and experiences anxiety when not in the safety of her home. He characterized this as defensive avoidance that appears to be related to her trauma symptoms and her PTSD diagnosis.

400When Mr. Salema challenged Dr. Cook asking whether it defies sense that Ms. Barreto would feel safe in the place where she was allegedly the victim of repeated physical battery and a life-threatening choking incident, Dr. Cook responded that once Mr. Salema left the premises, removing the threat of further violence, it is entirely plausible, psychologically speaking, that Ms. Barreto would now feel safe in the one home she has lived in for many years after moving to Canada.

401Dr. Cook noted that the marital separation itself was an aggravating factor.

402In terms of prognosis, Dr. Cook testified that his prognosis is guarded, particularly with respect to the PTSD, as it is now chronic. He was not optimistic that Ms. Barreto would recover from the PTSD. However, he qualified his answer by saying that the ultimate prognosis will depend upon the degree of success of her treatment plan.

403The treatment plan recommended by Dr. Cook is that Ms. Barreto continue her therapy sessions with her psychotherapist, Ms. Slingerland, and that she be referred for a medication review to determine if her psychotropic medication regime is therapeutically effective for her. He recommended both therapy and medication. He did not provide any cost estimates associated with this treatment plan.

404Dr. Cook’s opinion was not undermined by Mr. Salema’s cross-examination. Indeed, his credibility was enhanced when he declined to offer an opinion as to whether Ms. Barreto’s symptoms impaired her ability to work in answer to Mr. Salema’s question. He responded, quite appropriately, that he did not conduct a psycho-vocational assessment and therefore could not comment.

405Dr. Cook did not agree with Mr. Salema’s propositions that Ms. Barreto’s mental health condition and symptoms might be caused or contributed to by a motor vehicle accident or her childhood experiences, or that she suffers from Borderline Personality Disorder. He clarified that it was the physical assaults (including the choking incident) which were the traumatic incidents for the purposes of satisfying the diagnostic criterion for PTSD.

406Under cross-examination, Dr. Cook also clarified that there is no one “right” way for a victim of domestic violence (IPV) to react to ongoing violence: some will go to a shelter, some will approach a therapist or their doctor, some will reach out to community programs that deal with domestic violence, and some will keep the violence a secret for fear of provoking more violence.

407I found Dr. Cook to be credible and his methodology reliable. I accept his opinion in all respects.

Angela Slingerland

408Ms. Slingerland is a psychotherapist. She has been working with the Catholic Family Services of Toronto (CFST) since 2007. She works with women who have been victims of IPV on a one-on-one basis, and also, since 2009, in the context of group therapy at the CFST.

409She has a Bachelor of Arts in Psychology, a Master’s of Social Work, and a Master’s of Psychology.

410Ms. Slingerland has been Ms. Barreto’s treating therapist since September 2020.

411I admitted Ms. Slingerland as a participant expert witness. While Ms. Slingerland did not produce a report (nor was she obliged to in this role), her complete clinical notes and records were produced. Her clinical notes and records were entered into evidence as business records under the common law business records rule in Ares v. Venner, 1970 5 (SCC), [1970] S.C.R. 608 and s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 with respect to the facts, occurrences, events and transactions recorded (not the truth of any statements attributed to Ms. Barreto, but rather in support of the fact that they were made and formed a part of the information that Ms. Slingerland relied upon in forming her clinical opinions and impressions in the course of treatment). She was instructed by me to restrict her evidence to her findings, clinical observations and impressions, and opinions that she made during the course of her counselling sessions with Ms. Barreto.

412Ms. Barreto attends therapy once every three months. There is no fee for this service.

413Ms. Slingerland testified that the purpose of the sessions was to provide Ms. Barreto with supportive counselling primarily for the IPV she reported to have suffered at the hands of Mr. Salema.

414Ms. Slingerland testified that Ms. Barreto told her that she suffered physical abuse from her spouse. She further testified that, initially, Ms. Barreto downplayed the seriousness of the physical abuse (e.g., initially she said that Mr. Salema put his hands around her neck but did not use the word “choking”). However, after she completed group therapy, she provided more details of the physical abuse (e.g., twisting her arm, grabbing her head and hitting it against the wall, sitting on her until she couldn’t breathe, and choking her to the point of nearly blacking out). Ms. Slingerland described this process as progressive disclosure which, in her experience, is common in IPV situations. It is through therapy that the client becomes more able to articulate the abuse she has suffered.

415Her clinical judgment, developed over the course of therapy, is that, based on Ms. Barreto’s self reports and her clinical observations, Ms. Barreto experienced “domestic” abuse as well as some childhood verbal and emotional abuse.

416Furthermore, Ms. Barreto described to Ms. Slingerland what, in her opinion, was financial abuse arising from Mr. Salema closing their joint bank account, after separation, so she could not pay for anything.

417While no objections were raised with respect to Ms. Slingerland’s opinion concerning whether or not Ms. Barreto suffered domestic or intimate partner abuse and financial abuse, I am not attaching any weight to it except to the extent that it informed Ms. Slingerland’s treatment decisions and as it relates to determining when Ms. Barreto discovered her claims (under s. 5(1) of the Limitations Act) for the purposes of addressing Mr. Salema’s limitation defence.

418Ms. Barreto also reported to Ms. Slingerland that Mr. Salema had turned her family against her by portraying her as “crazy” and “difficult”, resulting in her family taking Mr. Salema’s side and isolating themselves from her. In addition, Ms. Barreto shared with Ms. Slingerland many incidents of Mr. Salema taunting her, putting her down, and mocking her if she reacted with anger or upset, telling her on at least one occasion that she would be “better off not living”.

419Ms. Slingerland identified two letters she wrote, one at the request of Ms. Barreto’s former lawyer and the other at Ms. Barreto’s request. The first letter is dated January 10, 2022 and the second letter is dated December 22, 2022. They were contained in her clinical notes and records. She confirmed that much of these letters were based on what Ms. Barreto told her and her own clinical observations.

420Notably, Ms. Slingerland confirmed that Ms. Barreto began attending individual counselling sessions with her on September 24, 2020 and had attended 28 sessions as of January 10, 2022. She also attended nine of the ten sessions of a psychoeducational group for women who have experienced domestic abuse (called Understanding Abuse) in the fall of 2020.

421The goals of the individual counselling sessions were to increase Ms. Barreto’s understanding of domestic abuse and how she has been impacted by it, and secondly to take control of her emotional wellbeing as she goes through the legal separation process.

422As of December 22, 2022, Ms. Barreto had attended an additional 22 sessions for a total of 50 sessions.

423Ms. Slingerland testified that, based on her clinical observations, Ms. Barreto did not gain awareness of the impacts of the abuse until she finished group therapy in the fall of 2020. Ms. Barreto has achieved some of the therapy goals. She has come to an understanding of what domestic abuse is and its impacts since completing group therapy. She has made good progress on looking after her emotional health, including accepting that the marriage is over with no prospect of reconciliation. However, she has not yet achieved her therapy goals completely and challenges continue to persist so long as this proceeding is ongoing.

424In cross-examination, Ms. Slingerland clarified that the counselling sessions were initially done virtually because Ms. Barreto would not leave her home and because it was during the COVID-19 pandemic. It then switched to telephone counselling because of internet problems Ms. Barreto was experiencing and continues by telephone.

425Ms. Slingerland rejected Mr. Salema’s proposition that, if Ms. Barreto described mothering him, as the “parent” she would logically be the abuser. Ms. Slingerland agreed that for a long time Ms. Barreto wanted to reconcile with him in the face of his express rejection.

426She also clarified that she was not providing counselling for the agoraphobia as she is not qualified to do so.

427Finally, Ms. Slingerland testified under cross-examination that, in her clinical experience, once an abuser leaves the home, flashbacks decrease and there is no longer a safety concern. She has had other clients who felt safe at home, after the abuser left.

iii) Findings

428There is no evidence of clinically significant pre-existing factors or experiences that Ms. Barreto suffered that could serve as potential other causes or contributory causes of her mental health disorders and symptoms, other than the tortious conduct of Mr. Salema. At best, Mr. Salema offered speculative evidence and did not obtain any admissions from Dr. Cook, Ms. Slingerland or Ms. Barreto to support his supposition.

429While Ms. Barreto admitted to some physical mistreatment by her mother during childhood, she showed her resilience to any adverse impacts that mistreatment may have had by excelling in university and her job as a child psychologist prior to her marriage. There is no evidence that she was diagnosed with, or treated for, any mental health or psychological issues prior to her marriage.

430Ms. Barreto has proven on a balance of probabilities that, but for the physical battery and intentional infliction of emotional distress she suffered at the hands of Mr. Salema, she would not have developed chronic PTSD, agoraphobia, severe depression, anxiety, or the low self-esteem issues she now suffers from.

431Furthermore, Ms. Barreto has proven that the cause of her chronic PTSD is the incident of choking and the incidents of other forms of physical battery she suffered over the course of her marital relationship perpetrated by Mr. Salema. In addition, I find that the remaining harms as above specified were caused by the combination of the repeated battery and the intentional infliction of emotional distress perpetrated by Mr. Salema.

iv) General (Non-Pecuniary) and Aggravated Damages

432The function of non-pecuniary damages awards in assault and battery claims is threefold:

a. To provide solace for the victim’s pain and suffering and loss of enjoyment of life;

b. To recognize the violation to the victim’s physical autonomy and integrity; and

c. To reflect the humiliating and degrading nature of the tortious conduct (and betrayal of trust where featured) as aggravating factors: Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120, 260 N.S.R. (2d) 257 (“B.M.G.”), at para. 132.

433The factors to be considered in determining the appropriate quantum of non-pecuniary damage awards in assault and battery cases are:

a. The circumstances of the victim at the time of the events, including factors such as age and vulnerability;

b. The circumstances of the assaults, including their number, frequency, and how violent, invasive and degrading they were;

c. The circumstances of the perpetrator, including age and whether they were in a position of trust; and

d. The consequences for the victim of the wrongful behaviour, including ongoing psychological injuries: B.M.G. at para 134; Blackwater v. Plint, 2005 SCC 58, [2005]

3 S.C.R. 3, at para. 89, approving the factors considered by the trial judge in

Blackwater v. Plint, 2001 BCSC 997, 93 B.C.L.R. (3d) 228.

434Aggravated damages may be awarded to recognize the circumstances or manner in which the abuse was committed (e.g., humiliating, undignified, or involving a betrayal of trust). They are not a separate species of damages. Rather, aggravating circumstances are additional factors to consider when assessing general non-pecuniary damages. In other words, aggravating circumstances may enhance the award of general damages that would otherwise be awarded. Often, judges will specify the amount of increased damages being awarded as a result of aggravating circumstances but, in the end, the total general non-pecuniary damages will reflect the aggravated damages component.

435There is some precedent for quantifying damage awards for intimate partner physical violence, but less so for intimate partner psychological violence.

436In Montgomery v. Kenwell, 2017 ONSC 3107, [2017] W.D.F.L. 3458 (“Montgomery”), Healey J. attached a chart prepared by counsel summarizing the decisions in which Canadian courts have awarded damages for intimate partner physical violence to the reasons. I agree with Healy J.’s observation that damages are slowly evolving in this area from nominal to more substantial. I also agree with the observation that 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”: Montgomery, at para. 35. In that case, Healey J. awarded $75,000 as general aggravated damages for 14 years of abuse and the resultant harms, which included permanent loss of hearing in the wife’s left ear, low self-esteem, social withdrawal, sleep deprivation and symptoms of depression and anxiety.

437In the chart attached to Montgomery, the damages awarded for various types of IPV tend to be low. Notably, the cases cited are dated, ranging from 1990 to 2013, so the awards rendered must be adjusted for inflation: Zando v. Ali, 2018 ONCA 680, [2018] O.J. No. 4110 (“Zando (ONCA)”), at para. 15. The courts’ recognition of the insidious harms caused by IPV is evolving, much like it did with respect to civil sexual assault claims, which were originally very modest but have evolved considerably.

438By way of contrast to the generally low damages historically awarded for family violence related torts, in a recently decided non-intimate partner physical assault case, Currie v. Kikkert, 2022 ONSC 7260, [2022] O.J. No. 5718 (“Currie”), general damages in the sum of $85,000 were awarded when a woman was pushed forcefully by another woman in a bar setting. The court characterized her harms as a “modest orthopaedic injury, with ongoing symptoms and some ongoing limitations”, in addition to symptoms of depression and anxiety: Currie, at paras. 65, 68.

439As noted by Gomery J. in Jane Doe 72511, at para. 117:

I do not see why assault and battery by a spouse should attract a lower range of damages than attacks by any other defendant. Violence by a partner may in fact be a more traumatic event than violence by a stranger. Spousal violence violates the trust that we are taught to have in our partners. It often involves repeated verbal and physical abuse. It typically occurs at home, the place where we should feel the most safe and secure. A battered spouse may be left not only with bruises but with an inability to trust other people or ever really feel safe.

440In the case at hand, resort to the civil sexual assault damage awards is helpful as a general guide because the dominant harms experienced generally tend to be psychological, accompanied by a betrayal of trust, much like the case at bar. However, this is not to say that the sexual assault awards would be identical to physical assault claims committed in an IPV context, but rather they provide a useful framework for how to assess psychological impacts committed within a betrayal of trust. Indeed, the legislature has recognized the similarities between sexual assaults and physical assaults committed in either a power dependency or intimate relationship by having eliminated the limitation period for both types of claims.

441In Zando (ONCA), at paras. 4, 15 and 20, affirming 2017 ONSC 1289, the Court of Appeal considered the appropriate range of non-pecuniary damages for adult-on-adult sexual assault and affirmed the trial judge’s range of $144,000 to $290,000 in 2017 dollars. I reference this case to demonstrate the evolution of damages in civil sexual assault cases and note that a comparable evolution is appropriate for IPV-related tort cases as well.

442The harms suffered by Ms. Barreto are long-standing, chronic, and serious. She will require ongoing therapeutic and pharmacological treatment. The harms constitute a significant impairment of her quality and enjoyment of life.

443The harms established by Ms. Barreto are primarily psychological in nature. They were committed by her intimate partner, and she experienced a betrayal of trust. Furthermore, the manner in which the abuse was perpetrated was humiliating to Ms. Barreto. For example, the restraining incidents included Mr. Salema telling her he was doing this for her own good, and when she tried to push herself away, sometimes scratching him, he called her the abuser.

444Ms. Barreto seeks $50,000 in total damages for the intentional infliction of emotional distress and an additional unspecified amount for non-pecuniary, aggravated, and punitive damages for the assault and battery claims. She did not seek any pecuniary damages in her Application – there is no income replacement or cost of future treatment sought by her. The income replacement component is, in any event, adequately compensated by virtue of the spousal support claim awarded. Furthermore, Ms. Barreto did not plead a claim for treatment costs (nor did she prove the cost of any such course of treatment), though she requested them in her closing submissions. Accordingly, I will not entertain her claim for treatment costs.

445Some of the harms are caused or contributed to by both types of tortious conduct. However, the battery claims are the sole cause of Ms. Barreto’s chronic PTSD. Accordingly, it makes sense to assess her damages on a global basis.

446The court of appeal in Ahluwalia , at para. 128, stated that the while sum of $100,000 for general and aggravated damages was higher than in previous jurisprudence, “the higher damage award reflects an emerging understanding of the evils of intimate partner violence and its harms”. However, there was no expert evidence as to the harms (causation or severity) in Ahluwalia. The case at hand is distinguishable. I have expert evidence on causation and the severity of harms, which I have accepted, in support of my finding that the psychological harms suffered by Ms. Barreto are chronic, pervasive, long-standing, and significantly impair her enjoyment of life. For example, Ms. Barreto suffers from flashbacks and intrusive thoughts relating to the physical assaults and battery. She suffers from agoraphobia which impairs (though does not eliminate) her ability to enjoy venturing out of her home without experiencing anxiety. She suffers from major depression which sometimes prevents or delays her ability to get out of bed. These are examples of the adverse impacts she suffers which impair her ability to enjoy life. She also, in the immediate aftermath of the separation, which she had a hard time accepting (notwithstanding the abusive nature of the relationship), ruminated over how she spent her 17-year relationship with Mr. Salema and the seeming futility of her efforts to preserve her marriage, only to discover that her spouse had betrayed her and implicated her own family in that betrayal.

447The physical assaults occurred frequently between 2016 and 2017. While the physical injuries suffered were largely minor and short in duration, the psychological harms and psychiatric disorders noted earlier are chronic, pervasive, long standing and continue to impair the quality of her life. There is a guarded prognosis with respect to the PTSD. The physical assaults occurred in an intimate relationship of which