Court File and Parties

Court File No.: FS-24-109346 Date: September 3, 2025

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SANGEETA SETHI

S. Sharda, for the Applicant

Applicant

- and -

SANJAY SETHI

Self Represented

Respondent

HEARD: July 30, 2025

Final Reasons for Decision on Uncontested Trial

McGee J.

Overview and Result

[1] This is a claim for $100,000 in damages on a tort claim within a family law Application that has been improperly pleaded.

[2] The parties are former spouses who separated in September 2023 after 30 years of marriage. This Application was issued the following year by Sangeeta Sethi ("Sangeeta"). The respondent, Sanjay Sethi ("Sanjay") has refused to participate throughout this Application and two other legal disputes: the loss of the family home by Power of Sale and an estate dispute initiated by his niece, the executor of his mother's estate.

[3] The only issue to determine in this uncontested trial on the family law Application is Sangeeta's claim for damages of $100,000 arising from Sanjay's abusive and violent behaviour during the marriage. No family law statutory claims are before the court but for a claim for divorce. The parties' two adult sons are no longer dependant, neither Sangeeta nor Sanjay have made a claim for spousal support, and Sangeeta withdrew her claim for an equalization payment within her opening statement at trial.

[4] I reserved my decision to grapple with the question of whether I can make an award of damages on a tort claim that has been improperly plead.

[5] Sangeeta's claim at para. 50 of her Application is for "damages in the amount of $100,000 for intentional infliction of mental, emotional and physical abuse by the Respondent." This is not a recognized tort. Her counsel did not make any submissions on the legal basis for the tort claim as plead, but to point me to the Ontario Court of Appeal's decision in Ahluwalia v. Ahluwalia, 2023 ONCA 476, 167 O.R. (3d) 561, leave to appeal granted, [2023] S.C.C.A. No. 529.

[6] Ultimately, I have determined that I can make the award of damages sought using a practical and principled approach. For the reasons set out below, I find that the nature, and the consequence of the claim as plead is clearly and plainly on notice to Sanjay, and the three elements of the tort of the intentional infliction of emotional distress have been satisfied.

[7] At the same time, this decision is not to be read as a permission slip for a casual approach to pleadings. A tort claim is a serious undertaking, the monetary value of which can exceed the family law statutory entitlements between former spouses. The drafting of a tort claim requires the utmost care, commensurate with its complexity.

Background Facts Relevant to these Reasons

Family Law Dispute

[8] The parties are former spouses who lived together for 30 years, from September 25, 1993, to September 1, 2023. They are the parents of two adult sons, now ages 30 and 27.

[9] Sangeeta describes her former spouse's conduct as controlling, manipulative and entirely self-focussed, punctuated by violent outbursts aggravated by lengthy periods of alcohol and substance abuse. Sangeeta and their two sons have been deeply affected by the constant fear and instability that Sanjay used to control their lives.

[10] Sangeeta and the boys have not suffered alone. Sanjay's parents, with whom they lived, have also suffered. After his father's death in 1996, Sanjay's mother, ("Usha") became a frequent target of his misdirected rage. Sanjay beat his mother and stole money from her. Sangeeta did her very best to protect her mother-in-law, and her sons while working fulltime to support the family.

[11] Sanjay was financially irresponsible. The home in which the three generations resided, 3 Lindridge Ave., Brampton ("the home") had been purchased by Sanjay's parents in 1987. After his father's death, title was held by the sole surviving tenant, his mother, Usha. The family refinanced the home in 1996, and Sanjay was added to title as a joint owner.

[12] It was Sanjay's responsibility to carry the costs of the home. He failed to do so. Sanjay took equity from the matrimonial home for his own purposes, lost monies through failed ventures and made few, if any, contributions to the mortgage or to the carrying costs of the home.

[13] When the home had to be refinanced on December 30, 2014, Sangeeta replaced Sanjay as the joint title owner with Usha because neither Sanjay nor Usha had income sufficient to qualify for a mortgage. Sangeeta, who had started working outside the home in 2001, was the only reliable income earner in the household. She tried to increase the family's revenue by renting out the basement. Sanjay refused.

[14] Usha died on January 17, 2023.

[15] When a joint tenant dies, a Certificate of Death is registered on title, and ownership continues in the sole name of the surviving joint tenant. Although I was not provided with a copy of the parcel register, Sangeeta filed documents at trial that satisfy me that she and Usha held title jointly, with a right to survivorship, and that title continued under her sole name after Usha's death.

[16] Sangeeta wanted to sell the home because the mortgage and municipal taxes were in significant arrears, and she could not carry the housing expenses and the day-to-day expenses for the boys on her own.

[17] Truth be told, by the time of Usha's death, the family's dire financial situation was past the point of no return. The bank moved for judgment on the mortgage and sent a letter giving notice of possession in March of 2023. Judgment on the power of sale proceeding followed that summer. A notice was served that required vacant possession of the home.

[18] On September 1, 2023, Sangeeta and the boys moved to a friend's basement apartment, where she continues to reside to this day. Sanjay refused to leave the home, or to deal with the situation in any manner, forcing Sangeeta to obtain proper legal assistance.

[19] Sangeeta brought an urgent motion, and the resulting Order dated October 30, 2023, within civil Court File: CV-23-3988, dispensed with Sanjay's spousal consent to refinance and to sell the home. Sanjay was ordered to vacate the home within 14 days and Sangeeta was granted vacant possession pending its sale. This allowed her to take carriage of the sale of the home and maximize its value.

[20] Sanjay disregarded the Order and in November of 2023, he was forcibly removed from the home by the Bailiff. Sangeeta states that he was incarcerated after his removal and that thereafter, he went to live with his brother. She advised that his whereabouts at the time of this trial were unknown.

[21] The home was sold on April 24, 2024. In the ordinary course, the net proceeds of sale should have been paid to Sangeeta because she was the sole owner of the home at the time of its sale. However, the monies were not paid to her because prior to closing a lien was placed on title as set out below. Instead, the sale proceeds were held by Sangeeta's lawyer, in trust.

Estate Dispute

[22] Usha executed a Will on April 13, 2017 that named her granddaughter Sapna (daughter of her other son) as her primary executor. Her Will leaves 50% of the residue of her estate to Sanjay, with the remaining 50% divided into five equal shares for each of her five grandchildren.

[23] Because title to the home passed directly to Sangeeta as the surviving joint tenant, its equity did not form part of Usha's estate.

[24] Nonetheless, in circumstances not made known to me, Sapna caused the estate to register a lien on title to the home in March of 2024, just before its sale. In this proceeding, I was not provided with any estate documents, such as an Application for Estate Trustee with a Will showing that Sapna had the authority to do so.

[25] Ultimately, for reasons not known to me, Sapna on behalf of Usha's estate and Sangeeta entered into Minutes of Settlement (the "Minutes") dated December 30, 2024. The Minutes provide that the net sale proceeds being held in trust were to be dispersed 45% to Sangeeta and 55% to the estate. Sangeeta has received her 45% share and does not seek to set aside the December 30, 2024 Minutes of Settlement.

[26] The estate's 55% share, calculated as $298,616.52, was divided into two sub shares. The half share payable to the five grandchildren was dispersed in accordance with Usha's Will. The remaining half share payable to Sanjay, rounded to $112,000 after costs was agreed:

a. to be held in trust pending the outcome of this Application and

b. would be available to satisfy any judgment received by Sangeeta in this Application.

c. Each of the two parties to the December 30, 2024 Minutes of Settlement, being Sangeeta and the estate, bore their own costs within the estate conflict.

Divorce Application

[27] Sangeeta issued this Amended Application on July 4, 2024, (the "Application"). The Application seeks final Orders for:

i. a divorce,

ii. an equalization payment and variation of share: being an award of more than half the difference between the parties' respective net family property values pursuant to section 5(6) of the Family Law Act, and

iii. damages in the amount of $100,000 for "intentional infliction of mental, emotional and physical abuse by the Respondent."

[28] On August 9, 2024, Sanjay was served with this Application in accordance with the Order of July 26, 2024, which permitted substituted service by email and text. Sanjay has never filed an Answer.

[29] As a result, this uncontested trial first came before me as a motion in writing on April 4, 2025. The motion sought damages of $100,000 for the intentional infliction of mental, emotional, and physical abuse, a finding of unequal division of the sale proceeds of the home (the vernacular for variation of share per section 5(6) of the Family Law Act, R.S.O. 1990, c. F.3), an Order that there be no equalization payable, and an Order for costs.

[30] In my endorsement of that day, I required an oral hearing because the claims sought were unclear. For example, to seek a variation of share, a party must first calculate the equalization payment owing. If there is no equalization payment, there can be no variation of share. There also appeared to be an interwoven estate claim that involved persons who were not parties to the application.

[31] I directed that the matter proceed to an oral hearing and that Sanjay be copied with my endorsement of April 4, 2025. I also provided that he would not have any participation rights at trial unless he first obtained an Order permitting him to late file his Answer and Financial Statement.

[32] On April 9, 2025, court staff emailed a copy of my endorsement to counsel for the applicant wife ("Sangeeta") and to Sanjay directly. Sanjay made no response. I am satisfied that all materials have come to Sanjay's attention because the email address used is the same as the email from which Sanjay has sent communications to Sangeeta.

Analysis

Final Orders on Uncontested Trial

[33] I will begin with a general overview of final Orders that are sought on an uncontested trial.

[34] When a respondent to a divorce application fails to serve and file an answer within 30 days of service pursuant to rule 10(1) of the Family Law Rules, O. Reg. 114/99 ("FLR"), the applicant may seek final Orders on an uncontested trial per rules 10(5) and 1(8.4). No further notice need be provided.

[35] An uncontested trial is a trial at which only the party making the claim provides evidence and submissions. The moving party bears the onus to demonstrate on a balance of probabilities that there is a sufficient evidentiary basis on which to make each of the Orders sought.

[36] Additionally, the moving party has a "very high duty" to make full and frank disclosure at an uncontested trial, and to advise the court of all material facts required to make a just determination, including material facts that do not assist his or her case: see Irons v. Irons, 2020 ONSC 1471, at para. 90.

[37] Orders on uncontested trials have a special form (25D) and a special affidavit (23C), but the evidentiary standards remain the same. Affidavit evidence may be relied on at an uncontested trial unless the court directs that oral evidence be given, see rule 23(22) of the FLR.

Claim for a Divorce Order is Severed

[38] At the time of trial, no statutory family law claims were before the Court, but for the claim for Divorce and the claim for damages. The claim for a Divorce Order is hereby severed and may proceed by separate Motion, uncontested.

The Role of Pleadings

[39] It is fundamental to the litigation process and the principles of fairness that lawsuits be decided within the boundaries of their pleadings. Pleadings frame the case before the court. The claiming party sets out the case to be made, and the responding party knows the case to be met. Pleadings inform the court of the matters in issue, provide a record of the issues raised, define the scope of discovery, outline the relevance and necessity of evidence, and prevent further litigation upon matters that have already been judicially determined.

[40] In Provenzano v. Thunder Bay (City), at para. 7, Smith J. outlined the critical importance of pleadings:

Rules exist to ensure that pleadings meet certain standards. Pleadings that are defective or inadequate lead to chaotic litigation which is often unnecessarily expensive and protracted.

[41] A court cannot make an Order on a motion or at trial that has not been sought in the underlying pleadings, except in the unusual case in which a responding party is clearly on notice of the moving party's positions, and there is no element of surprise, or inability to know the case to be met. In such circumstances, courts may take a practical and principled approach to pleadings.

[42] The authority for so doing in family law matters is often cited as rule 2(3) of the Family Law Rules, which provides that the primary objective of the FLR is to deal with matters justly. This includes ensuring that the procedure is fair to all parties, saving expense and time, dealing with a case in a manner that is appropriate to its importance and complexity, and giving appropriate resources to the case recognizing the need to also give resources to other cases.

[43] A practical and principled approach to pleadings is also supported by rule 1.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that the rules are to be "liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits."

[44] In Moreira v. Garcia Dominguez, 2012 ONCJ 128, at para. 229 the court found that:

Where relief is sought in broad or imprecise language, a court may be prepared to accept the notion that a specific form of the relief is subsumed in the pleadings.

[45] For example, parties are routinely permitted to seek the proportionate sharing of special expenses (being section 7 expenses, Federal Child Support Guidelines, S.O.R./97-175) even if the pleading only seeks child support. This is because a section 7 expense is a form of child support and to subsume its pleadings into a general pleading for table child support is consistent with the overall approach by the courts of being more amenable to forgive a void in the pleadings if it affects the best interests of a child.

[46] It is also fair to say that where parties are self-represented, a practical and principled approach to pleadings will assist in treating matters justly. But here, the interests of a child are not affected, and Sangeeta has had the benefit of counsel throughout both the family law and the estate matters.

[47] In Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, at paragraphs 30 and 31, Justice Benotto of the Ontario Court of Appeal declined to strike a claim for an unequal division per section 5(6) of the Family Law Act because it had not been pleaded. Justice Benotto reasoned that the legislative structure for an equalization payment includes a provision for the payment to a spouse of more or less than one-half the difference between former spouses' net family property, the claim was known to the responding party, and the civil rules cannot always be "parachuted into the family rules" (Frick, at para. 20).

[48] Justice Benotto helpfully reminds us at para. 11 of Frick that

The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

[49] A tort claim for damages is a civil lawsuit, usually but not necessarily plead within a family law Application when the parties are former intimate partners. Although the appeal of Ahluwalia, supra to the Supreme Court of Canada remains under reserve at this time of this decision, the jurisprudence across Canada has evolved in a manner that clearly recognizes the importance of engaging with the serious consequences of family violence in all matters affecting the family. In my view, the importance of the issue of family violence brings it within the "philosophy peculiar to a lawsuit that involves a family," per para 11 of Frick supra.

On What Basis Can I Consider the Tort as Plead?

[50] It is not the case in these circumstances, as it was in Frick, that material facts have not been pleaded, or that there is a conflict between the Family Law Rules and the Rules of Civil Procedure. Instead, I must determine if I can grant an award of damages on a tort claim that appears in its drafting to have conflated the torts of the intentional infliction of emotional distress, with the torts of assault and battery; while refencing facts that support all three torts.

[51] In Ahluwalia, supra the Ontario Court of Appeal summarized the available torts arising from intimate partner violence at paragraph 91, being the torts of assault and battery, and the tort of the intentional infliction of emotional distress. Sexual and physical assault is included within the torts of assault and battery.

[52] Although the terms "assault and battery" are often used interchangeably, there is a distinction. As set out in Barker v. Barker, 2022 ONCA 567, 162 O.R. (3d) 337, at para. 138:

… battery and assault are distinct concepts in tort law, both being examples of trespass to the person … a battery involves actual physical contact by the tortfeasor or bringing about harmful or offensive contact with another person, whereas a tortious assault involves intentionally causing another to fear imminent contact of a harmful or offensive nature…

[53] Ahluwalia explores these distinctions at para. 64, noting that:

Assault is conceptually different. It involves creating the apprehension of imminent harmful or offensive contact. In Barker, at para. 170, this court [ONCA] approved the following statement of law from the Hon. Allen M. Linden, et al., Canadian Tort Law, 10th ed. (Toronto: LexisNexis, 2015), at §2.42:

Assault is the intentional creation of the apprehension of imminent harmful - or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs. [Emphasis added by Benotto J.A.]

[54] Ahluwalia also summarizes the tort of intentional infliction of emotional distress. As set out at paras. 69 and 70,

[69] …It has three elements: (i) the defendant's conduct was flagrant and outrageous; (ii) the conduct was calculated to harm; and (iii) the conduct caused the plaintiff to suffer a visible and provable illness. See Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (C.A.).

[70] The requirement that the conduct be calculated to produce harm is met where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow: Allen M. Linden, Canadian Tort Law, 7th ed. (Markham, Ont.: Butterworths, 2001) at p. 34, Prof. G.H.L. Fridman, The Law of Torts in Canada (Toronto: Carswell, 1989) at p. 53. The "visible and provable illness" does not require expert medical evidence. It is satisfied when depression or physical illness result from the conduct: see Saadati v. Moorehead, 2017 SCC 28, [2017] 1 S.C.R. 543.

[55] I find that on this pleading, taking a practical and principled approach, it is just and appropriate to consider an award of damages on the tort claim of intentional infliction of emotional distress. The facts pleaded within the Application speak to specific incidents and an overall pattern of emotional, physical and financial harm intentionally caused to Sangeeta, and her visible harms. Her lengthy affidavit of February 9, 2025, adopted as part of her oral evidence at trial and served on Sanjay with her motion record further details the harm caused to her and its intentionality.

[56] The intentional nature of the acts, that is, that the tortfeasor caused broad emotional harms on purpose is plainly drafted and the allegations of family violence are central to the Application. The amount of damages claimed is stated with precision. The claim is on notice, having been served twice, once as a pleading, and second, within the motion record for this uncontested trial.

[57] Sanjay has chosen not to make any response, knowing the nature of the claims against him, the potential consequence, and the material facts pleaded and later deposed in the Affidavit for Uncontested Trial.

The Evidence of Emotional Harm

[58] Two witnesses were called at the trial heard on July 30, 2025: Sangeeta, and one of the parties' sons, whom I will not name to protect his privacy.

[59] Sangeeta provided credible and compelling evidence of three decades of emotional and physical abuse, and at least two serious sexual assaults. One of the sexual assaults occurred just after a surgical procedure and caused long-term damage to Sangeeta's health. Physical attacks included striking her, pushing her and throwing objects.

[60] Sangeeta described how Usha was also being beaten and that she had an acute fear of leaving her mother-in-law alone in the home when she had to go to work. As her mother-in-law aged, Sangeeta took over her personal care and often saw bruising on Usha when she assisted her with her bath.

[61] Sanjay would steal money from Sangeeta and Usha, leaving the family in constant financial jeopardy. Sangeeta was continually worried about the family's finances.

[62] If Sangeeta talked about calling the police or leaving, Sanjay would threaten to kill her or kill the dog.

[63] One of the parties' adult sons, now serving in the Canadian Armed Forces, bravely and candidly spoke to his father's violent, unprovoked rages, and his mercurial manner. He reported calling the police at least 15 times between 2005 and 2025, but that by the time the police arrived, his father would act normally and deny any wrongdoing. He described how he and his brother were deeply affected by the unrelenting violence against them, their mother, and their grandmother. He described a father who knew that he was doing harm, who would instantly change his demeanor in front of the authorities, and then would resume his control of the family once the authorities had left.

[64] I am fully satisfied that the three elements of the intentional infliction of emotional distress have been made out.

Damages

[65] An award of damages for an intentional tort is meant to denounce grievous behaviour. Its purpose is to compensate victims for having suffered from the behaviour because we assume that the behaviour itself is harmful, even in the absence of demonstrable harm.

[66] Once the elements of the tort are established on a balance of probabilities, the assessment of damages can be complex. There are several heads of damages that may be claimed, and certain heads of damages may require expert evidence.

[67] General damages, or non-pecuniary damages, compensate the plaintiff for the pain and suffering that he or she experiences as a result of his or her injuries. This is meant to compensate the plaintiff for the physical, emotional, and psychological impact that the injury has on his or her life. There is no precise formula for calculating general damages. Expert evidence is not required.

[68] In contrast, pecuniary damages compensate a claimant for income lost or expenses incurred as a result of the tortious behaviour. Economic experts are often retained to assist with calculating the loss of income, the loss of earning capacity, the cost of care and the cost of future care.

[69] In some cases, additional damages, such as aggravated or punitive damages may be available. Aggravated damages are awarded to compensate the plaintiff for mental distress or injured feelings caused by the manner of, or motives behind, a defendant's misconduct. Punitive damages, also known as exemplary damages, are rare, and can be used to sanction or punish the defendant in the absence of criminal charges.

[70] Here, Sangeeta's counsel leads no evidence with respect to any pecuniary loss but for the inference that the mortgage fell into arrears because of Sanjay's intentional acts of refusing to maintain employment, disallowing the basement to be rented out, and failing to contribute to the costs of the home.

[71] With respect to general, or non-pecuniary damages, counsel cites only Ahluwalia as authority for an award of $100,000 in damages. Counsel has not assisted me in any other manner with the range of available damages awards or their calculation on these facts.

[72] At the same time, the compelling evidence of Sangeeta and her son persuades me that the emotional harm caused by Sanjay was intentional, significant and its effects long-standing. As importantly, it satisfies me that it is behaviour that must be denounced.

[73] I find that Sangeeta should be compensated in the amount of $100,000 in general damages for the intangible impacts of her injury, such as her constant anxiety and sense of helplessness to protect herself, her mother-in-law and her sons, her constant financial distress and exhaustion, the emotional harm caused by the sexual assaults, and her overall loss of enjoyment of life.

[74] I am satisfied that the amount of damages sought, $100,000, which has not been contested, is a fair and reasonable award of damages for the tort of intentional infliction of emotional harm in these circumstances.

[75] The award of $100,000 in damages is payable forthwith from the estate monies being held in trust for Sanjay, with interest thereon at the Courts of Justice interest rate commencing July 4, 2024.

Costs

[76] Sangeeta's counsel has submitted a Bill of Costs totalling $44,348.50 which is calculated as a full recovery of all her costs for this family law Application (including the equalization claim withdrawn at trial), the estate matter inclusive of the Minutes of Settlement, and the costs of $3,500 ordered by Justice Doi on October 30, 2023 in the civil proceeding.

[77] Many of the amounts included in the Bill of Costs are outside the scope of this Application. One cannot recover costs in one proceeding that were incurred in another proceeding with different parties. Neither can one obtain an order for the payment of costs (also in another proceeding) that have already been ordered to be paid. If there is an unpaid Order for $3,500 payable in costs to Sangeeta from Sanjay, it can be paid from his share of the estate monies held in trust for him after this Judgment is satisfied. No further Order is required.

[78] Because of the manner in which the Bill of Costs was prepared, I have no confidence that the fees reported to have been incurred between the various proceedings have been properly attributed. Moreover, at para. 5 of the December 30, 2024 Minutes of Settlement on the estate matter, it specifically reads, "[t]he Parties will bear their own legal costs incurred up to the signing of these Minutes of Settlement."

[79] The inadequate state of the Bill of Costs, with the additional deficit of counsel having prepared no case law or assisted the court in the determination of damages on a tort claim must draw sanction. Rule 24(7) of the FLR provides that the court can deprive a party of their costs, even if successful, if there has been unreasonable behaviour. As indicated in paras. 35 to 37 above, an uncontested trial does not mean that a moving party need not apply the same vigour and diligence as would be applied in a contested trial.

[80] Costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants, and (4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules. See: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[81] In reviewing Sangeeta's improper Bill of Costs, the factors in rule 24(14) of the FLR, and the purposes of a costs award, I am not inclined to grant any costs. While this may be an unusual outcome, particularly on an uncontested trial in which the applicant has been successful, I find it necessary to reflect an expected standard of practice. Courts promote what they permit. To permit costs in this case would be to promote uncareful pleadings, an assumed entitlement to substantial damages without provision of any legal precedent and an inflated Bill of Costs.

[82] No costs are granted.

McGee J.

Released: September 3, 2025