Mitchell v. Mitchell, 2026 ONSC 4259

CITATION: Mitchell v. Mitchell, 2026 ONSC 4259

COURT FILE NO.: FS-21-00026718-0000

DATE: 20260727

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Lynda Elizabeth Mitchell

Applicant

– and –

Joseph William Mitchell

Respondent

David Tobin and Kuan Ning (Angela) Huang, for the Applicant

Amanda Taerk and Sara Omer, for the Respondent

HEARD: November 10, 12, 13, 14, 24, 25, 26, 27, and 29, 2025 (and supp written closing submissions received May 22 and May 27, 2026)

S. VELLA J.

REASONS FOR JUDGMENT

[1] The Applicant, Lynda Elizabeth Mitchell (“Lynda”), seeks orders for equalization of net family property and damages under the newly created tort of intimate partner violence and, in the alternative, damages for violence under various traditional torts.

[2] The Respondent, Joseph William Mitchell (“Joe”), seeks an order for unequal division of net family property and dismissal of all intimate partner violence related claims.

[3] The parties were able to resolve a number of the family property issues, leaving six items to be resolved. They also resolved Lynda’s spousal support claim by way of a lump sum payment from Joe in the sum of $150,000 payable by February 9, 2026, and the post-separation adjustments owing by Joe in the sum of $67,500 payable by December 10, 2025.

[4] An Agreed Statement of Facts was filed at trial as Exhibit 1 and is incorporated by reference into these Reasons.

[5] After the evidence concluded and the closing submissions heard, the Supreme Court of Canada released its landmark decision in Ahluwalia v. Ahluwalia, 2026 SCC 16. I invited the parties to provide me with written submissions concerning Ahluwalia.

[6] The Respondent denies the Applicant’s claim of coercive control and abusive conduct.

[7] No new evidence is required, nor was there any motion to re-open the trial to hear additional evidence. Furthermore, the Respondent has not raised any claim of prejudice that would arise if I were to entertain this tort claim. Rather, his submissions focussed on the merits of the Applicant’s claim. Accordingly, I will take the evidentiary record as it exists.

[8] Further, while neither party raised the issue of whether the Application should be amended to plead this cause of action, I have concluded that since all of the elements and general facts were already plead under the individual family violence related tort claims, and there are no new facts requiring new evidence, I have the judicial authority to consider this new tort as when “the facts cry out for a remedy, it falls to the court to inform itself of the arguments and the context, and to devise a proper answer that is reflective of the record and respects principles of fairness”: Ahluwalia, at para. 180.

[9] The Respondent is not caught off guard or by surprise. The Respondent was aware of the alleged abusive conduct, claim for damages, and the alleged facts underlying the coercive control allegations and responded to them at trial. Indeed, the Applicant initially plead the tort of family violence based on the trial decision in Ahluwalia and family violence related tort claims of assault, battery, and intentional infliction of emotional distress. The Applicant specifically plead that the Respondent engaged in “coercive and controlling behaviours”, including anger, violence, threats, financial paranoia and abuse, isolation, and harassment, and the use of his access to his gun collection to threaten her. The Applicant withdrew the tort of family violence claim in light of the court of appeal’s decision in Ahluwalia declining to recognize that tort. However, all of the same facts were plead underlying all of the originally plead causes of action. The matter has, in some respects, come full circle.

[10] In Ahluwalia, the Supreme Court of Canada held that this new cause of action need not be specifically pleaded. However, in my view, it is prudent to formally amend the Application to add the tort of intimate partner violence and I make this order nunc pro tunc.

[11] The Supreme Court also left the order of resolution of the family law statutory entitlements, and tort claims up to the trial judge: Ahluwalia, at paras. 210, 220. In this case, as there is no chance of double recovery, I will resolve the family law statutory entitlements first. For clarification, there are no claims of child support or spousal support before me. Joe’s claim for unequal division of the net family properties is unrelated to the claims of abusive conduct Lynda asserts. The children are all adults and independent, and so there are no parenting issues to resolve either. The issues to be resolved as between the family law remedies and the tort remedies are analytically distinct both on a factual and legal basis.

[12] The issues to be resolved are:

(a) Is 329 Hugill Road, Coboconk, Ontario (“Hugill Road Property”), held by Lynda in trust for the parties’ son, Joseph Mitchell Jr., or was it transferred as security for a debt owing to Joe and Lynda? If not held in trust, what value should be ascribed to this property as at the date of separation?

(b) Is the alleged loan to Joe by his sister a proven debt as at the date of separation? If so, what was the value of that debt as at the date of separation?

(c) What value should be ascribed to Joe’s extensive gun collection for equalization purposes? Embedded in this issue is Joe’s claim for unequal division of net family property to reflect the unmarketability of some of his guns due to Bill C-21 and physical damage to his guns caused when the police seized them, both of which occurred after the date of separation.

(d) What is the value of Lynda’s Kia Sorrento car as at the date of separation?

(e) Was Joe’s coin and medal collection inherited? What value should be attributed to it as at date of separation?

(f) What is the value of Joe’s cabin cruiser boat as at the date of separation?

(g) What does Joe owe as an equalization payment?

(h) Has Lynda proven that Joe is liable under the new tort of intimate partner violence?

(i) In the alternative, has Lynda proven her claims for assault, battery, and/or intentional infliction of emotional distress against Joe?

(j) If Lynda has proven any of her alternative traditional tort claims, what are her general and aggravated non-pecuniary damages?

(k) If Lynda has proven the tort of intimate partner violence, what is the appropriate award of compensatory damages?

(l) Are punitive damages warranted under any of the torts?

(m) What are the appropriate rates for prejudgment interest on equalization and damages?

[13] For the reasons that follow I find:

(a) The Hugill Road Property is held in trust and therefore excluded from Lynda’s net family property for equalization purposes;

(b) The debt from Joe’s sister is not proven, and is removed from Joe’s net family property for equalization purposes;

(c) The value of Joe’s gun collection as at the date of valuation/separation is $548,079.36;

(d) The value of Lynda’s Kia Sorrento is $22,900;

(e) Joe’s medal and coin collection was inherited. It is valued at $1,000;

(f) Joe’s Cabin Cruiser is valued at $10,000;

(g) Joe owes Lynda the sum of $1,866.141.34 for equalization of the net family properties;

(h) Lynda has proven that Joe committed the tort of intimate partner violence against her;

(i) Lynda is awarded the sum of $400,000 as compensatory damages under the tort of intimate partner violence;

(j) Lynda also proved, in the alternative, that Joe committed the torts of assault, battery and the intentional infliction of emotional distress (collectively, the “traditional torts”);

(k) In the alternative, under the traditional torts, Lynda’s compensatory damages are assessed at $300,000, including aggravated damages;

(l) Lynda is awarded punitive damages in the sum of $25,000;

(m) Lynda’s compensatory damages attracts a prejudgment interest rate of 5%;

(n) Lynda’s equalization payment attracts a prejudgment interest rate of 2%.

Brief Overview

[14] The parties were married on January 20, 1966.

[15] The parties were separated on November 21, 2020.

[16] Lynda and Joe have four adult children: Coleen Mitchell (“Coleen”), born August 18, 1966; Joseph Mitchell (“Joseph Jr.”), born May 3, 1968; Kathleen Mitchell (“Kathleen”), born December 16, 1982; and Sean Mitchell (“Sean”), born February 4, 1988 (collectively, the “children”).

[17] The parties also filed a joint Comparative Net Family Property Statement as an exhibit at trial which I will use to determine the equalization payment ultimately owing by Joe. In brief, Lynda claims that Joe owes her $2,015,341.73; whereas Joe claims he owes Lynda $1,052,654.60.

[18] Lynda called each of the four children and two of her treating health care professionals as witnesses at trial, in addition to her own testimony.

[19] Joe called Noel Pardy, one of the dealers attempting to sell some of Joe’s guns, as a witness, in addition to his own testimony.

[20] I will review the evidence of each witness, as relevant to my determination of the issues, on a per issue basis.

General Credibility Assessment Framework

[21] Lynda and Joe essentially gave diametrically opposed testimony on most material issues, including Lynda’s tort allegations which Joe adamantly denied aside from the one incident for which he plead guilty.

[22] Traditional indicators of truth telling include:

(a) The presence of internal consistencies or inconsistencies to the witness’ telling of her story;

(b) The existence of documentary and other objective evidence that is consistent or inconsistent with the witness’ telling of their story;

(c) Any corroborative evidence (such as a conviction or eyewitness testimony) or evidence in the nature of confirmation (such as expert evidence) of the witness’ story;

(d) A motive to fabricate;

(e) The witness’ demeanor on the stand, though this factor is fraught with potential difficulties and challenges including being coloured by the above myths, and thus has limited assistance;

(f) Common sense – does the witness’ story make sense or is the explanation, for example, for alleged incidents or occurrences irrational;

(a) Any other factors that are relevant to an assessment of the witness’ story within the unique facts of the case (Barreto v. Salema, 2024 ONSC 4972, 11 R.F.L. (9th) 31, at paras. 161-64; Fatima v. Tunio, 2025 ONSC 5474, at para. 32).

[23] I can accept all, none or part of any witness’ evidence.

[24] In this case, there are no concerns about the reliability of any of the witnesses; i.e., their ability to perceive the truth/reality accurately. I will return to this framework later in my Reasons.

Equalization Claims

[25] Lynda claims that Joe must pay her $2,015,341.73 as his equalization payment. Joe alleges that he only owes Lynda $1,052,654.60.

[26] The main reasons for the discrepancy are their diverse positions on whether Lynda has a beneficial interest in a property known as the Hugill Road Property, and the valuation of Joe’s extensive gun collection.

[27] Section 4(1) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) sets out that “net family property”, is to be presumptively valued on two dates: the date of marriage and the valuation date. The “valuation date” is set out to be the earliest of various occurrences. In this case the valuation date is the date of separation: November 21, 2020.

[28] Section 5(1) sets out the equalization of net family properties calculation: “the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.”

[29] The court has broad discretion to determine the value of family property, even absent expert evidence. Where there is an absence of appraisal or valuation expert evidence, the court must use the best evidence available to make these determinations, in order to come to a fair and reasonable result: Lyttleton v. Lyttleton, 2022 ONSC 5120, at para. 63.

Lynda’s Ownership Interest in Lot 18, Concession 9, Hugill Road

[30] The Hugill Road Property is vacant land located in Coboconk, Ontario.

[31] It is undisputed that Joseph Jr. bought this land in or around July 2004 for approximately $66,000. From the date of purchase until the property was transferred to Lynda on or about April 11, 2013, Joseph Jr. solely paid for the carrying costs, including monthly loan payments of approximately $556.

[32] There have been no improvements built on the vacant land.

[33] It is further undisputed that in or around 2013, Joseph Jr. transferred this property to Lynda. However, the reason for the transfer is disputed.

[34] Joe relies on Lampron v. Lampron, 2004 CanLII 28090 (Ont. S.C.) for the proposition that funds held by a parent in trust for the children must be included in that parent’s net family property when the parent retains exclusive control and no formal, irrevocable trust exists: see also, Ouslis v. Ouslis, 2016 ONSC 6572 and Rea-Cina v. Cina et al, 2025 ONSC 5130.

[35] The decision of Lampron cited before me was Amendments to Reasons for Decision Dated December 16, 2003. The analysis is brief in the Amendments to Reasons and references the rationale from the original Reasons for Decision. It dealt with funds purportedly held in trust by one parent for the children. At para. 5, it simply states that these assets held in trust by the Applicant for the children should be included in the assets owned by the Applicant on the date of marriage, “as he had exclusive control over the funds and no evidence was called to show that the trust was irrevocable”. It is of limited utility on the facts before me.

[36] In Ouslis, the court, relying on Lampron, found that monies held by Ms. Ouslis in her bank account ostensibly on behalf of the children, had to be included in her net family property statement because she had exclusive control over the funds, which were derived from a family trust, and did not call evidence to show that the trust was irrevocable. Some of the children were still dependents. No supporting evidence was called by Ms. Ouslis. This case is also of limited utility on the facts before me.

[37] In Rea-Cina, at issue were two vehicles that were owned by the respondent on the date of valuation. The court, relying on Lampron and Ouslis, found that any future intention with respect to the disposition of these vehicles was “entirely speculative”, and, as they were under the exclusive control of the owner spouse and there was no evidence adduced to show that the trust was irrevocable or that the spouse had relinquished beneficial interest, the vehicles were included in the respondent’s net family property statement. This case is also of limited utility on the facts before me.

[38] I must determine whether Lynda has established a resulting trust, and if so, whether Joe has rebutted the presumption.

[39] In Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 20, 24 and 34, the Supreme Court of Canada confirmed that a gratuitous transfer of property gives rise to a rebuttable presumption of a resulting trust. See also, Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 12.

[40] Joseph Jr. deposed that he bought the property with his own money and a loan he secured solely in his name.

[41] According to Joseph Jr., the reason he transferred the land to his mother was mainly due to his recurring mental health problems that have plagued him since an accident he sustained in 1993 which caused a traumatic brain injury. He testified that one of the results of his injury is an inability to control impulsive selling and purchasing from time to time which had resulted in him squandering his money. This is compounded by the fact that he cannot sustain steady employment as a result of this injury and is on a fixed disability income. He transferred the property to his mother to be held in trust for him to safeguard against him selling or further encumbering this property on an impulse. He was unshaken in his testimony that his intention at the time of transfer was only to transfer the legal, but not beneficial, interest in this property. He testified that the transfer was on the understanding that the land still belongs to him and that if he wishes to sell this land, his mother will respect his wishes and the sale proceeds will be his alone.

[42] Joseph Jr. also testified that he continues to be responsible for the taxes payable with respect to this property and that while his mother makes the tax payments for him, in light of his fixed income arising from CPP disability payments, he pays her back within about a month.

[43] Joseph Jr. disputes his father’s claim that he transferred the property to his mother with the intention of transferring legal title and beneficial ownership as repayment of monies his father lent to him with respect to a failed Marina business and legal fees associated with a lawsuit arising from the dissolution of his business relationship.

[44] Lynda’s testimony corroborated that of Joseph Jr. She noted that her son has suffered bipolar disorder since his closed head injury and that it was believed that it would be safer for him to place this property in her name. She noted that while there has been some improvement in Joseph Jr.’s mental health, in the past if he became manic, he would go on buying and selling sprees. She wanted to keep this land safe for him because it was important to him to own this property. However, she maintained that it was always understood that she was holding this property in trust for Joseph Jr. and that he alone holds the beneficial interest in it.

[45] Joe testified that he lent Joseph Jr. $205,000 to buy a marina business that included a grocery store, hardware store, and warehouse in a location north of Lindsay and that was why the Hugill Road Property was put into Lynda’s name with full ownership. He also lent Joseph Jr. money to buy six watercrafts and paid for his legal fees in connection with a lawsuit, and a new truck after Joseph Jr.’s accident. Joe estimated that his son owed him about $500,000 in all and that is why the property was transferred to Lynda in or around 2013. Under cross-examination he claimed that he could not afford to throw away “$300,000” to Joseph Jr. for nothing.

[46] According to Joe, Joseph Jr. was supposed to pay him back whenever he became successful. In this sense, the Hugill Road Property was to be security for that loan.

[47] The lawsuit Joe was referencing was a dispute with Joseph Jr.’s former girlfriend who was a partner in the marina business.

[48] Joseph Jr. denied he owed any money to his father. He said the lawsuit was in fact brought by his father. He wanted nothing to do with it and stated that his father lost to his former girlfriend. Furthermore, he said that his father ran the business for a while and sold the watercraft, keeping the money. Joe also sold jet skis. Joseph Jr. testified that he signed over the marina to his father and at that time, it was worth over $500,000 inclusive of all chattels and goods. He also opined that in the lawsuit, his former girlfriend was awarded all of the property because his father refused to settle.

[49] In assessing who is likely telling the truth on this issue, I must look to the surrounding circumstances as follows.

[50] First, there is no written evidence that the Hugill Road Property was transferred to Lynda in trust for Joseph Jr.

[51] Second, the title as registered does not indicate that Lynda was holding the property as a trustee.

[52] Third, there is no written evidence that Joe lent any money to Joseph Jr., the terms of such a loan, or that this property would be used as security or collateral for any loan. Added to this, Joe’s evidence was unclear and inconsistent about the loan. He testified, variously that he lent $205,000, and then $500,000 and finally “over $300,000”. He also appeared to characterize the transfer of land as repayment of the debt or as security for the debt pending Joseph Jr. paying him back.

[53] Fourth, there were no bank records to demonstrate that Joe advanced the alleged funds to Joseph Jr., or that Joseph Jr. routinely repays Lynda back the money she advances to pay the property taxes.

[54] The absence of written evidence may not be surprising, since the impugned transactions were between an adult child, who had suffered a traumatic brain injury, and his parents. The lack of written evidence to support either side’s story (Joe’s allegation of a debt, and Lynda’s allegation of a trust) is a neutral factor in these circumstances.

[55] Also, of relevance in my assessment of credibility is the fact that Lynda failed to produce an appraisal of the Hugill Road Property despite it being listed on her net family property (with nil value) and despite receiving a request for information to produce a value and appraisal. All that was produced by her was an MPAC value of $100,000 as of 2016 which she claims is the correct value as at date of separation. Her explanation is that, as she claims not to be the beneficial owner, therefore, she did not have to assign a value as at the date of separation. Joe’s position apparently based on an appraisal he obtained is that the value of this property on October 21, 2025 (about five years after the date of separation) was $430,000. The appraisal to which he referred was not introduced into evidence.

[56] On the other hand, there is no dispute that Joseph Jr. acquired the property on his own in 2004, after his accident, and that he paid all carrying costs until at least 2013. There is also no dispute that Joseph Jr. acquired a closed head injury and that he has suffered from mental health impairments as a result, with which he continues to suffer to some degree today.

[57] There is also no dispute that Joseph Jr. is on a fixed government disability pension, though he is apparently able to work from time to time to supplement that income.

[58] Also, the pattern of putting properties into Lynda’s sole name throughout the marriage, including the matrimonial home and cottage and rental properties in which Joe had a beneficial interest, is undisputed. The reason for this arrangement of real estate affairs was, according to Joe, because he had health challenges and was afraid that Lynda would be left with a mess if the properties were not solely in her name and he suddenly died.

[59] Joe challenged Joseph Jr. and Lynda’s explanation for the trust arrangement and pointed out that in or around (late 2021), Lynda transferred approximately $280,000 to Joseph Jr. reflecting his one third share of the disposition of another property (736 Lansdowne Avenue) which was deposited into an investment account he manages. The Lansdowne Avenue property was an inheritance that entitled Lynda, Coleen, and Joseph Jr. each to one third of the sale proceeds.

[60] Joe also did not testify about the terms of either holding the Hugill Road Property as security, or that the transfer in 2013 was in consideration of that debt, when he was asked. He testified that the property was to be security for the loan in case anything happened to Joseph Jr. and the loan was not paid back.

[61] It appears, in fact, that no consideration was given in exchange for the transfer of the Hugill Road Property, subject to my finding with respect to the veracity of Joe’s explanation. That said, I noted that upon transfer the remaining mortgage loan owed by Joseph Jr. of $8,307.08 was paid and discharged. Based on the real estate closing documents surrounding the transfer of title, it appears that it was Joseph Jr. who paid it off. Neither Lynda nor Joe said they paid of the remaining mortgage, while Joseph Jr. testified he paid all the carrying costs himself.

[62] The other children did not speak to the issue of the circumstances of the transfer of title into Lynda’s name.

[63] Neither Lynda nor Joe produced any formal appraisal to support their respective positions. As Lynda is the legal titleholder to this property, she had the burden to produce an appraisal. All I have before me is the outdated MPAC statement.

[64] However, Joseph Jr.’s evidence was compelling. He was forthright in his evidence. He did not change his story under cross examination. He provided details of the business dispute involving his former girlfriend and his father’s role in running the business and in pursuing litigation which Joseph Jr. did not agree with. He was sincere and was not defensive, evasive or argumentative in his evidence, in sharp contrast with Joe’s evidence, as will be further examined later in these Reasons. His testimony was consistent with the limited documentary evidence. While Lynda’s behaviour in having failed to obtain an appraisal and list a value as at date of separation on her net family property statement is not to be countenanced, her testimony was consistent with Joseph Jr.’s testimony.

[65] I do not find Joe’s argument that the rationale posited by Joseph Jr. and Lynda for the initial transfer of the Hugill Road Property was undermined by Lynda’s transfer of the partial proceeds from the sale of the Lansdowne house in late 2021 to Joseph Jr. persuasive. Lynda testified that Joseph Jr.’s mental health issues had improved since the transfer in 2013. Joseph Jr. maintained that he was content for his mother to continue holding the Hugill Road Property in trust for him, for his own benefit and as a safeguard, as he trusts Lynda to deal with that property as he may instruct. In the dynamics of this family, as will be seen, Joseph Jr.’s explanation makes sense.

[66] I find that no consideration was provided by Lynda (or on behalf of Joe) for the transfer of the Hugill Road Property.

[67] The critical time for the determination of the intention is the intention at the time of the transfer.

[68] I find that Joseph Jr.’s intention at the time of conveyance of the Hugill Road Property to Lynda was for him to maintain the sole beneficial interest in the property as a protective measure in light of his mental health challenges, and not as repayment of a debt or security for a debt allegedly owed to Joe.

[69] Furthermore, I find that while Lynda has been paying the property taxes up front, Joseph Jr. has been paying her back in increments. In any event, Lynda’s payment of property taxes is not enough in this case to establish a proprietary interest in this property.

[70] There is no doubt that Joseph Jr. bought the Hugill Road Property in 2004, paid the mortgage and all carrying costs until 2013. I further find that since 2013 he had paid the carrying costs, including property taxes which he reimburses his mother for on an incremental basis consistent with his fixed income.

[71] Joe has not proven that Joseph Jr. owed him a debt and therefore has failed to prove that the Hugill Road Property was transferred to Lynda either as security for that debt, or in consideration for repayment of that debt.

[72] Accordingly, a resulting trust has been established. Joe has not rebutted the presumptive resulting trust by proving that there was consideration paid in exchange for the transfer of title; namely as security for an alleged debt owed by Joseph Jr. or in repayment of a debt.

[73] Since Lynda, while holding legal title to the Hugill Road Property, did not hold a beneficial interest in that property at the date of separation (or now, for that matter), it does not form part of her net family property and is properly excluded: Oudeh v. Prior-Oudeh, 2021 ONSC 3718, 70 E.T.R. (4th) 286, at para. 21.

Alleged Loan to Joe from his Sister

[74] Joe alleges that he borrowed $120,000 from his sister, Cathy Miceli, on May 11, 2011, at a rate of interest of 5.00% per annum, and that with accrued interest, the debt owed to Ms. Miceli is now $126,000.

[75] Lynda disputes the veracity of this loan and testified that she was never told about it.

[76] In support of his claim, Joe adduced a Demand Promissory Note dated May 18, 2011. It states that, on demand, he promises to pay $120,000 to Cathy Miceli of the principal sum of $120,000, with interest payable monthly, both before and after default, at the rate per annum of 2.00% with interest on overdue interest at the same rate. It is purportedly signed by Joe and Cathy Miceli. In addition, he produced a bank draft dated May 18, 2011, in the sum of $120,000 and what purports to be a Bank of Montreal transaction record of the same date showing the withdrawal of $120,000 purportedly from Ms. Miceli’s bank account, leaving an account balance of $8,776.35.

[77] Joe also produced his Scotiabank bankbook which shows a deposit of $120,000 dated May 19, 2011.

[78] Joe explained that he took the loan from his sister for a couple of reasons. First, his sister was paying too much tax on interest and so was looking to park the money elsewhere. Second, he agreed to accept the loan so as to help Sean buy his second home. He stated that he lent Sean $100,000.

[79] Sean testified that he bought his second home in December 2014. He denied that Joe gave him money to buy a house, but rather that a year or so earlier, he was given money. He testified that he received $100,000 from his mother’s bank account. At the time, he was not looking to buy a second house. Rather, he was given it to hold, not keep. He repaid this sum with bank drafts. He provided a draft to a lawyer for $50,000 plus. In or around 2018 or 2019, he provided a draft for about $40,000 which was used by his parents to purchase a Kia Sorrento car. Then, after an argument that occurred in November 2021 (more of which will be discussed in the IPV claim section), Joe demanded the balance of the money back. He returned the balance of $39,000.

[80] In cross-examination, Joe changed his story. He testified that the funds borrowed from his sister were given to Joseph Jr. to put into his account so that he would look more solvent and be in a position to buy the Hugill Road property. He testified that Joseph Jr. used some of the money to purchase a car.

[81] Under cross-examination, after being shown that the Promissory Demand Note stipulated a 2% interest rate, rather than 5%, Joe said this was not the correct document. He testified that there was a “long document” that shows 5% interest per year. However, the “correct” loan document was not produced in evidence.

[82] He also admitted that shortly after ostensibly receiving the loan in May 2011, he paid his sister the sum of $2,400 on June 13, 2011, in response to being shown his bank account statement. However, he confirmed that he did not produce any bank statement that post dates the June 2011 statement. He also maintained that the $2,400 payment was not towards this loan.

[83] Joseph Jr. was not cross-examined on whether he received any funds that derived from this ostensible loan from his aunt Cathy Miceli.

[84] Joe admitted in cross-examination that he gave Ms. Miceli some money but said it was not in repayment of the loan.

[85] Lynda disputed the authenticity of the documents produced by Joe. She points out that the bank draft and bank account statement do not reflect Ms. Miceli’s name.

[86] Furthermore, Joe failed to call Ms. Miceli as a witness to authenticate the documentation and substantiate his claim that the full loan was outstanding as at the date of separation – nine years later. The only explanation he gave for failing to call Ms. Miceli was that he was now living with her and essentially did not want to bother her.

[87] There is no evidence that Ms. Miceli has demanded payment of the loan, or any part of it, pursuant to the Demand Promissory Note.

[88] The decision not to call Ms. Miceli, in face of Lynda’s challenge to this loan, was Joe’s choice. It did not arise from an inability to call Ms. Miceli, or refusal by Ms. Miceli to testify but rather because he did not think it was necessary to call her.

[89] The timing of the use of the funds by Joe is suspect. I accept Sean’s evidence that he was not looking to buy a second home when his parents provided him with $100,000 and that he returned the money he was holding.

[90] The burden of proof is on Joe to prove that the loan is a bona fide loan, and the amount outstanding as at the date of separation, pursuant to s. 4(3) of the FLA.

[91] I am asked to draw an adverse inference against Joe, for failing to call Cathy Miceli.

[92] The failure to call a material witness, without an adequate explanation, amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

[93] As per Bishop-Gittens v. Lim, 2015 ONSC 3971, at paras. 14-16, the criterion before an adverse inference may be drawn are:

(a) The witness must have key evidence to provide;

(b) There must be no adequate explanation for the failure of the party to call the witness; and

(c) The witness must be within the exclusive control of the party against whom the adverse inference is sought to be drawn.

[94] The failure to call Ms. Miceli satisfies the first two criterion, but not the third. Joe did not have exclusive control over Ms. Miceli. There is no property in a witness, and this is not a situation where the impugned witness owed a duty of confidentiality or fiduciary duty to Joe. I therefore decline to draw an adverse inference for the failure to call Ms. Miceli.

[95] However, in the circumstances of this case, Joe needed to call Ms. Miceli to prove that the bank draft came from her, the Bank of Montreal bank statement was hers, and to verify the bona fides of the loan as well as the outstanding balance. I am not persuaded by Joe’s evidence alone that there was any outstanding balance of this alleged loan on the date of separation. Ms. Miceli’s evidence was required to shore up the frailties of Joe’s evidence.

[96] Joe’s evidence was inconsistent and, at times, nonsensical and unclear. He disavowed the formal Promissory Loan document as accurately describing the loan and stated there was another longer document which he failed to produce. He changed his story as to what was done with the alleged funds. His testimony was not credible.

[97] He has failed to discharge his burden of proof under the Family Law Act. This debt is removed from the comparative net family property statement for equalization purposes.

Valuation of Joe’s Gun Collection and His Claim for Unequal Division of Net Family Property

[98] Joe was an avid gun collector all of his life. He was also a marksman and won many shooting competitions. For a while, he trained military police on how to shoot. He made his own ammunition. He collected all sorts of guns: historical, contemporary, collector’s weapons, combat weapons, handguns, rifles, machine guns, and gun paraphernalia.

[99] Joe kept his guns largely in a secure locked room, equipped with a burglary alarm, which only he could open. He kept some guns in other locations such as his “go bag”.

[100] In all, Joe acquired approximately 500 guns during the course of the marriage.

[101] Joe did not provide an appraisal or even an estimate of the value of his guns as at the date of separation, despite a court order that he at minimum provide an estimate based on the purchase prices, his extensive knowledge about gun values, and the state of the guns as at the date of separation.

[102] By all accounts, including Joe’s, the vast majority of his guns were in “mint” condition, with some still in the original packaging, on the date of separation. It is clear that Joe was very meticulous about his guns, and took superb care of each of them. He testified that he never fired a shot from most of his guns.

[103] The evidence from all of the family members, who testified about these general facts, including in particular Joe, Joseph Jr. and Sean, was consistent.

[104] However, two significant events occurred following the date of separation which adversely impacted the value of the gun collection.

[105] The first event occurred in September of 2021. Joe was arrested in relation to assaulting Lynda. As a result of the arrest, the police seized the entire gun collection. In the course of the seizure and storage, many of the guns were damaged. According to Joe, the stocks of the guns were scratched as the guns were just dumped into trucks by the police. He testified that, based on his own observation, the wood stocks were more damaged than those with plastic or fiberglass stocks. He testified that any damage to previously mint condition guns would reduce their value. The guns were seized by the police on September 30, 2021, save for one gun which was seized on October 7, 2021, all from 266 Waite Road, Pontypool, Ontario, which was the parties’ matrimonial home.

[106] The second event occurred in October 2022, with the passage of Bill C-21. This law made the sale and possession of handguns illegal in Canada, with the practical effect that they have no resale value in Canada. However, they can be sold in the United States.

[107] The burden is on the party claiming the assets as their family property to prove the value as at the date of valuation. The party must provide credible evidence to support their position. In the absence of credible evidence, the court may assign a value that is less advantageous to the party who claims the asset: Virc v. Blair, 2017 ONCA 394, 138 O.R. (3d) 191, at para. 59; Rea-Cina v. Cina et al, at para. 177. Therefore, the burden is on Joe to prove the value of his firearms and related gun paraphernalia as at the date of separation.

[108] The court will not use hindsight evidence to determine the value of net family property for equalization purposes. Lynda relies on Lang-Newlands v. Newlands, 2024 ONSC 6285, 10 R.F.L. (9th) 310, at paras. 147-148 for the proposition that such hindsight includes subsequent changes in the law. In that case, Sharma J. had to determine the correct capital gains rate to apply to one of the spouse’s interest in a family trust. His Honour declined to apply a future capital gains inclusion rate not yet legislated (at the date marriage) because it would be “inconsistent with the language and scheme of the FLA”; namely, that the calculation of equalization of net family property was based on two “snapshot” dates – the date of marriage and the date of valuation. One does not consider the fluctuation in value of net family property between the date of valuation and the date of trial under the base equalization formula.

[109] While the FLA does not stipulate how the court is to calculate the “value” of the family property, the best measure is the concept of “fair value”: Fitzpatrick v. Fitzpatrick, 2004 CanLII 13318 (ON SC), [2004] 3 R.F.L. (6th) 325 (Ont. S.C.), at para. 64.

[110] In Fitzpatrick, at para. 65, Aston J. found that the owner spouse’s “own bona fide belief in the value of his shares, given his skill and experience in that end of the business, including the fact his partners relied on his expertise, cannot be ignored.” Lynda relies on Joe’s valuations that predate the date of separation, as a fair measure of the value of his gun collection as at the date of valuation.

[111] None of the purchase receipts for any of the guns were produced in evidence.

[112] The values offered by each of the parties are varied and not supported by formal appraisal or expert valuation evidence.

[113] Joe valued the gun collection at $130,000 in their current condition and in the aftermath of Bill C-21 which makes his handgun portion of his collection unmarketable in Canada. He based this estimate on the current market value of the legal guns either sold or still listed to date with a firearms dealer, Gagnon, attempting to sell the legal long guns. He testified that he estimated the worth of his gun collection, as it stood in 2010 to be around $500,000. He offered no valuation estimate or opinion for the value of his extensive gun collection as it stood at the date of separation.

[114] Lynda values the gun collection as at the date of separation at $850,000.

[115] The date of valuation for purposes of calculating equalization of net family property is the date of separation in this case: Family Law Act, s. 4(1). Accordingly, my first task is to do my best based on the available evidence, and in the absence of any formal appraisal or record of purchase prices, to value Joe’s gun collection as of November 21, 2020.

[116] As stated, Joe offered no expert evidence to support a date of separation valuation. In fact, up until his most recent financial statement, in which he attributes the sum of $130,000 to the gun collection (though clearly based on his estimate of current market value), he attributed no value to his gun collection. His explanation was that he could not obtain a formal appraisal once the guns were seized by the police. However, as stated, Sharma J. ordered him to provide a valuation based on how much he paid for the guns with adjustments as necessary, and based on his extensive knowledge of guns, in the absence of a formal appraisal and he did not.

Joe’s Testimony

[117] Joe testified that he received his first 22 rifle at the age of 10. His cousin would take him hunting when he was young. He always liked shooting. His grandfather and uncles gave him guns and he developed a keen interest in guns.

[118] Joe’s gun collection includes guns he acquired since he was 10 years old. He went to gun shows on weekends “all over”, including Canada and the United States. This occurred throughout his marriage. He bought most of his guns from these gun shows. The gun show activity stopped when the COVID-19 pandemic shut everything down.

[119] He used to belong to the Maple Leaf Revolver Club which is a bullseye club for shooting practice. He was a member for over 30 years. He graduated to combat shooting which he did until he was arrested in 2021. In his competitions, he won several gun shooting championships including the Yankee Cup, an eight-time winner as New York champion, and a two-time Toronto challenge champion. He was an expert marksman as evidenced by his championships.

[120] He also trained military police to shoot in Petawawa and Trent.

[121] In 2010 he went to the hospital for triple bypass surgery. He wrote out a will just outside the operating room before surgery. He testified that the only instructions he gave to Lynda was to not take less than $500,000 for the guns, and he gave her two names of friends who could help her sell the guns. With respect to the transcribed notes relating to the holograph will Lynda tendered into evidence, he challenged its veracity and said that four of the guns on the note had not been acquired yet. He said he bought them later than 2010. He alleged that the note was fabricated, except for the fact that he told her to get at least $500,000 for the guns.

[122] Lynda’s counsel objected on the basis of Browne v. Dunn (see R. v. Dexter, 2013 ONCA 744, 313 O.A.C. 266, at paras. 20-21). She noted that Joe’s lawyer did not put to her on cross-examination that she had fabricated the holograph will note. Apparently, Joe only received the note on the day of Lynda’s testimony.

[123] However, under cross-examination, he only identified three guns as not having been acquired at the time of his operation: an 1886 Winchester 4570, which he said he got after his friend died and was worth a couple of hundred dollars; a Winchester 1873, and a 22 Marlin.

[124] As stated, Joe provided no documentary evidence to show the purchase price of these or any of the guns, much less their respective purchase dates. Also, I note that the note properly reflected the names of the two friends Joe confirmed he mentioned at the hospital who could help Lynda sell the guns in the case he did not survive the operation. Joe has not demonstrated that Lynda fabricated this note.

[125] In any event, Joe confirmed that he told Lynda that she should not accept any less than $500,000 for the gun collection as it stood in 2010, referring to the entire gun collection.

[126] Joe then tried to distance himself from the accuracy of this 2010 estimate at trial. He explained that he came up with $500,000 as a “guestimate” made to the best of his knowledge. He added it was a “high end estimate”. He also testified that since 2010 he has added only about five further guns to his collection between 2010 and 2020.

[127] He estimated that on the date of separation, he had between 400 and 500 guns in his collection.

[128] Joe testified that he “knows a lot about gun values”. He also knows about depreciation and appreciation. He explained, if guns are in good condition, a lot of them will appreciate but if they are damaged, they are no longer collectible and their value “goes way down”.

[129] He testified that after his arrest and seizure, the police returned his guns in a damaged condition and so they are worth less. He believes the police just took the guns and threw them into the back of the truck with guns banging against each other. Then they were stored in barrels, sock first, and damaged further. He personally inspected the guns when they were delivered to Gagnon’s and took photographs of the guns that were damaged. The guns with a plastic sock had minor scratches, but the guns with wooden stocks had deeper scratches. The photographs were not adduced into evidence.

[130] He confirmed that Gagnon does not have all of the guns, and that some guns remain with the police. He obtained an order for the release of the guns on each of September 28, 2022, and June 20, 2023. However, the police still have some of his handguns.

[131] Joe testified that Elwood Epps was able to take the remaining guns – namely, the restricted handguns and the prohibited machine guns. These are the guns that cannot be sold in Canada due to Bill C-21. To date, Elwood Epps only has some of these guns – the rest are still in police storage. According to Joe, he could sell these guns in the United States, but it costs $500 per gun to transfer it to the United States, and then the gun dealer will tell you how much they will be sold for. However, while a representative from Elwood Epps was scheduled to be a witness for Joe, that witness apparently advised during the course of trial that he could no longer attend. Joe did not seek an adjournment but rather chose to withdraw the witness from his list.

[132] In support of his motion for the release of the guns, Joe swore an affidavit on September 13, 2022, just prior to the passage of Bill C-21. In that affidavit, he deposed that he had 245 handguns and 300 rifles. He estimated the present value of the handguns at over $200,000 and the non restricted rifles and shotguns at over $250,000. His estimates were informed by his own experience of buying and selling guns.

Lynda’s Testimony

[133] According to Lynda’s testimony, she derived the value of the gun collection as of 2010 based on a “holograph will” she testified Joe made in hospital in May 2010. Joe was in the hospital for bypass surgery.

[134] He was concerned about dying and did not want Lynda to be shortchanged when she sold his gun collection, recognizing that she lacks knowledge, much less expertise, in resale values of guns. Sean was present in the hospital room with Lynda and Joe.

[135] Sean corroborated his mother’s testimony that he was present on this occasion and that his father made a list of his most valuable guns and gave a general overview of the value of his guns in the course of organizing his will at the hospital.

[136] Lynda testified that a holograph will was prepared from the information in the typed document produced in evidence entitled “Notes transposed from hand-written instructions at Centenary Hospital in May 2010” (the “transposed Notes”), and that Joe signed the actual will in the presence of two nurses. She prepared the notes that she testified reflected Joe’s instructions regarding the disposition of his guns and other valuables in the house in the event that he died on the operation table. However, the handwritten holograph will itself was not adduced into evidence. Nonetheless, the parties referred to the transposed Notes (which was based on her handwritten notes she made in the hospital) as the “holograph will”.

[137] Lynda further testified that the $500,000 estimate she says was provided by Joe for his gun collection was only for the contents of the secure gun room, as demonstrated in the transposed Notes. However, there were separate guns that he provided her the price of which are also reflected in the typed will document. When all of the gun prices, including the secure room collection, listed in the will are added together, it totals $850,000.

[138] The transposed Notes were not admitted by Joe as reflecting the contents of any alleged holograph will. He says they are fabricated and pointed to the listing of three guns that he said he had not acquired as at 2010. He says they came from a friend’s estate so he would remember that. However, on cross-examination, he was shown a firearm registration certificate dated January 17, 2003, that shows one of the disputed guns, the Marlin rifle, was registered to him. This proved that he had acquired at least one of the three disputed guns as at the date of the holograph will. This resulted in Joe altering his testimony. He did not adduce any independent or documentary evidence to prove that he acquired any of the other challenged guns (the two Winchester rifles) after May 2010. He did not produce any holograph will.

[139] The transposed Notes only records information about the gun collection, names of his friends who can be consulted, the location of his safe combination and some other valuables and money he hid in the matrimonial home. It has no other details, including any bequests. Regardless of whether the transcribed note was of a holograph will, it is offered as a documentary record of Joe’s valuation of his gun collection in May 2010. The surrounding circumstances were that he was afraid he was going to die in the hospital lending to trustworthiness of his recorded oral utterances at the time and reflects information that apparently was transposed into a handwritten holograph will. Sean corroborated Lynda’s testimony that Joe provided the information contained in the transposed Note at the hospital in his presence.

[140] In the transposed Notes, it states that “Gun room contents $500,000”. It also lists price estimates for some of the more valuable individual guns and gun paraphernalia, by name, and gives instructions about going about selling the guns including recommended dealers. It also records where Joe has kept cash and jewelry and where she can find the combination to the wall safe. This is not information that Lynda would have known; particularly as it pertains to the gun collection and associated paraphernalia. She played no role in purchasing the guns or maintaining them. The gun collection was exclusively Joe’s domain, and he had intimate knowledge of each and every gun, magazine, and gun related paraphernalia he bought. Also, Joe changed his answer in part about the three guns he said he did not acquire until after the date of the holograph will, but only when confronted with a document that required him to change his answer. Furthermore, he did not resile from the position that he did, in fact, estimate that his gun collection, as it existed at that time, was worth around $500,000 in 2010 (though not $850,000). His evidence is not credible on this point.

[141] I find that the document entered into evidence as the transposed Notes accurately recorded Joe’s utterances made at the Centenary Hospital in May 2010 regarding his gun collection and what he believed its value to be at that date. The circumstances surrounding him making these utterances were inherently trustworthy. The recording of Joe’s statements in the transposed Notes was admitted by Joe as an admission against interest. I find that Joe admitted in May 2010 that his gun collection, including the related holsters, etc., was worth about $850,000 and this was an estimate based on Joe’s personal knowledge about his own collection and his gun related expertise.

Joseph Jr.’s Testimony

[142] Joseph Jr. deposed in his trial affidavit that both he and his father are gun enthusiasts. His belief was that Joe owned between 350 and 400 guns and was aware that many of his guns were collectables that had been in mint condition. He gave an example of a Thompson Sub machine gun that was in mint condition. He said that gun alone was worth over $40,000 USD. Also, Joe owned MP5 machine guns which, in Joe Jr.’s opinion based on his conversations with his father, would sell for roughly $20,000 USD each. He was also aware that his father owned many antique collector’s items. He was not challenged on these statements in cross-examination.

Sean’s Testimony

[143] Sean testified that he was also very familiar with his father’s extensive gun collection. He testified that he had a “fair bit” of knowledge about the extensive gun collection from Joe. His father taught him how to handle guns, the shot size for certain game, how to be safe with guns, and the like. They went out shooting together. He testified that he knew Joe’s gun collection well. His father collected all types of guns and enjoyed military history. His father bought military style weapons that were civilianized, safari rifles, and “everything really”. His father also participated in cowboy competition shooting for a while.

[144] Sean testified that he and his father also discussed the value of Joe’s guns. He has no doubt that Joe would never have sold his gun collection for as low as $130,000 but he also said Joe would never have sold his gun collection because it was very precious to Joe. He believed that the gun collection was worth closer to $850,000 than $130,000, based on his discussions with his father. Under cross-examination, Sean testified that he believed that valuing the collection at $800,000 was low based on his father’s gun collection as it existed in 2010.

Litigation Gun Expert Issue

[145] Joe eventually sent the guns that became illegal after the passage of Bill C-21 to Elwood Apps with the mandate to attempt to sell those guns in the United States, where it was legal to do so. Joe sent the rest of the guns to Gagnon to attempt to sell in Canada.

[146] At the outset of trial, Joe sought to adduce opinion evidence from Wes Winkle of Elwood Epps and Noel Pardy of Gagnon Sports as litigation experts. Both are licensed firearms dealers. For brief reasons delivered orally, I ruled that the proposed experts could not be called as litigation experts. In brief, those reasons were the fact that no advance notice of an intention to call these witnesses as experts was provided, they were not listed on the witness list prepared for trial, no expert report was delivered (much less a summary of that opinion), and no curriculum vitae or acknowledgment of expert duty were produced. Lynda was taken off guard by the proposed expert evidence.

[147] It was obvious that a central issue in this trial was the valuation of his gun collection for the calculation of equalization of net family property. The lack of a formal valuation or appraisal or even informal valuation had been a bone of contention throughout the litigation, and Joe was ordered to at least provide a detailed estimate of the worth of each of his guns based on his own knowledge and expertise. He failed to do so.

[148] To have permitted these witnesses to testify as litigation experts, in breach of the requirements of the Family Law Rules, O. Reg. 114/99, would have amounted to trial by ambush. There was no reason provided by Joe for this “morning of trial” request to add litigation experts to his witness list. Neither party sought an adjournment of the trial to permit compliance with the Family Law Rules requirements for tendering litigation expert witnesses.

[149] Accordingly, the request was denied.

[150] However, I permitted Joe to call these witnesses as fact witnesses and directed that he deliver a summary of the intended fact witness evidence, which he did. Any objection as to scope of the evidence, including as layperson opinion evidence, was to be made at the time of calling of these witnesses.

[151] In the end, only Noel Pardy was called. The court was advised that Wes Winkle was unable to attend due to a family emergency, and Joe elected to continue the trial without calling Mr. Winkle, rather than requesting an adjournment. Joe withdrew Mr. Winkle from his witness list.

Noel Pardy’s Testimony

[152] Noel Pardy is a co-owner of Gagnon’s Hunting Goods located in Oshawa. One of the main business lines is the sale of used or second hand firearms on consignment, as well as some gun scopes. He is licenced to sell guns, and has been a gun dealer since the 1990’s.

[153] Noel explained that his business has been directly impacted by Bill C-21 which passed in October of 2022. Gagnon’s can no longer sell restricted handguns. Handgun sales were roughly 30% of their gun sales. However, these restricted handguns can be sold in the United States. Of course, any American gun dealer is going to take a commission on these guns.

[154] His uncle Jerry, who also works in the business, met with Joe and agreed to try to sell some of Joe’s guns on assignment. They took delivery of the firearms from the Toronto Police Service, which is not an unusual occurrence for the business, particularly in the wake of Bill C-21.

[155] They received approximately 179 firearms, all “long guns” meaning rifles and shotguns and identified the list of guns received from the Toronto Police Services as belonging to Joe. The list was marked with green lines to show the guns not yet sold, and red lines to show the guns sold. A few of the guns also have an “s” marked beside them. The “s” reflects guns that are not for sale, as they are being held for one of Joe’s sons.

[156] Gagnon receives 20% commission on each gun sale. Noel confirmed that they did not take possession of any of the restricted firearms (the handguns) which are banned from sale in Canada due to Bill C-21. Also, they are not permitted to sell the machine guns as they are prohibited guns, which are a special category. Machine guns can only be sold as between those who have a gun licence to own machine guns. He noted the last licence to own machine guns was issued in 1972, meaning that the market for machine guns is small.

[157] To date, Gagnon’s has sold approximately 115 guns for a total sum of $106,000 (retail price). Joe has received a total of $37,337.20, and the remaining due to him in the sum of $49,451 has been held by Gagnon’s pending disposition of this court case. The balance of the sale price represents their 20% commission. On consent, I ordered the remaining funds in the sum of $49,451 to be released to Joe’s trial lawyer to be held in trust pending release of this decision. The total sum realized by Joe on the sale of these legal long guns to date of trial is $86,788.20.

[158] This leaves about 62 long guns unsold.

[159] Noel testified that while Jerry and Joe discussed the list price for each gun, Joe overrode some of the advice and required that some of the guns be listed higher than their recommended price. The overpricing is what Noel attributes to the inability to sell the remaining guns. He bases this view on his experience and the fact that potential customers expressing an interest in some of the guns have backed off because the price is too high, noting that the guns are damaged. By way of example, he pointed to the Winchester rifles which are each priced between around $3,500 and $3,900. Gagnon’s advice to Joe was that they should be priced at under $2,000 each. If these guns were in mint condition Gagnon’s would have recommended a list price closer to $3,000 each. However, Joe has not accepted the advice and most of the Winchester rifles have not sold. He also noted that the Weatherby rifles and Greener shotgun are also overpriced and that he did not see any firearms that were particularly valuable, in his view.

[160] Noel testified that none of the guns he has were particularly rare guns that would attract much higher prices than the list price for Joe’s collection.

[161] Noel noted that some of the guns they received from TPS had significant damage mainly in the form of scratches. The damage lowered the market value of those guns. He believes that the damage likely occurred while the guns were in police custody. He noted that the Durham Regional police are much more careful in handling seized guns based on his experience. He doubts that the guns were damaged by Joe who was clearly an avid gun collector and very knowledgeable about his guns.

[162] In re-examination, Noel testified that he estimated that the value of the gun collection they had carriage of was devalued by about 20% as a result of the damaged state in which they received the collection.

[163] He noted that some of the guns they received were of a scarce make – the higher priced guns. These types of guns tend to hold their value better than more common guns.

[164] Joe has been unwilling to lower the prices, and hence Gagnon’s are no longer actively marketing those guns, though they are still for sale. They are keeping them in storage as a courtesy to Joe, but after this court case is finished, he expects Gagnon’s will want to return the guns to Joe if he insists on maintaining the current list prices. They have been trying to sell these guns for three years.

[165] Noel Pardy’s evidence was of limited assistance with respect to determining the value of the guns in his carriage as at the date of valuation, as he could only provide evidence about what guns he had, the list prices, his view about the appropriateness of the list prices (set by Joe), and the sales to date of his testimony, based on the current (post valuation date and in the “as is” condition) market conditions, not the conditions that existed as at the date of separation. He estimated that the value of Joe’s long gun collection decreased by about 20% over all due to the damaged state he received them in, and the typical disposition costs of selling the guns. Nonetheless, the evidence is probative particularly with respect to Joe’s request for unequal division.

[166] Mr. Pardy’s evidence was not seriously challenged on cross-examination. He was forthright and knowledgeable about gun sales, resales, and trends as applied to the gun collection he received on behalf of Joe after the police seizure.

[167] The court did not hear from Ellwood Epps and, therefore, has no information about the value of the firearms that gun dealer business took carriage of from the Toronto Police Services. However, an excel spreadsheet reflecting the firearms with Ellwood Epps was adduced into evidence. It shows that Ellwood Epps has carriage of 22 handguns (restricted firearms), the type of gun, and the condition of the gun. Most are listed in “very good” condition, and some are listed in “excellent” condition or “good” condition. It does not reflect any list prices or sales information.

[168] The Property Exhibit List prepared by the TPS reflecting all of the guns and paraphernalia (e.g.: firearm boxes, cleaning brushes, magazines, and scopes) seized was produced and entered into evidence. It lists around 371 guns. There appear to be many more handgun seized than reflected in the Ellwood Epps excel spread sheet. Sone guns remain in police custody with the TPS, despite court orders that order the TPS to release them.

Analysis of Gun Value as at Date of Valuation

[169] Based on the documentary evidence, there are approximately 183 long guns, 245 handguns, and 5 machine guns that have not been sold to date. The court has no evidence on the per gun worth of most of the remaining unsold firearms, including all of the handguns, other than vague estimates of what the whole collection was allegedly worth.

[170] More persuasive is Joe’s own evidence that he valued his guns in 2010 at $500,000 (albeit he now says for the entire collection) together with the evidence of Lynda and Sean that valued the additional guns set out in the transcribed note which Joe provided individual estimates of in addition to the $500,000 secure gun room estimate. This figure makes sense when considered against Joe’s estimate of his damaged guns after police seizure in 2022 at over $450,000 in his affidavit seeking the release of his guns from police custody; i.e.: the handguns were estimated at over $200,000 and the non restricted rifles and shot guns at over $250,000. The latter is his estimate of his personally observed damaged guns but before the passage of Bill C-21. Based on Joe’s own evidence, and he has direct knowledge of his own guns which he purchased as well as having visited gun shows once a month for 30 years, it is reasonable to infer that the value of the gun collection prior to the two intervening events at the date of separation was much higher.

[171] Joe’s evidence that his gun collection was only worth $500,000 in 2010 in the face of his subsequent affidavit is not credible. He testified that he only acquired about five more guns after 2010. This value more or less equates with the same value he ascribed to the gun collection in a damaged state and after the handguns became unmarketable in Canada. It is likely that his valuation of the restricted handguns reflects his estimate of what he thinks they are worth on the market in the United States.

[172] Joe’s position that his gun collection is worth $130,000 somewhat approximates the amount of proceeds from gun sales realized by Gagnon plus the remaining guns at list price to date on a per gun basis. However, the actual sales realized by Gagnon occurred after the date of separation, and the two intervening events. Furthermore, Gagnon does not have all of the guns. Most importantly, Joe did not provide any rationale as to how he arrived at $130,000. There was no attempt to explain to the court the worth of the approximate 500 guns as at the date of separation. This was an arbitrary figure.

[173] Joe failed to prove the market value of his gun collection, and the court must do the best it can with the available evidence.

[174] For these reasons, I accept Lynda and Sean’s evidence that Joe estimated the value of his entire gun collection while he was in the hospital in 2010 to be approximately $850,000, and this is the best evidence I have upon which to base the value of his gun collection on the date of valuation.

[175] However, it is also fair that the disposition costs of selling the guns be factored into the equation. The disposition cost is 20% of the sale price, based on Noel Pardy’s evidence. He testified that the disposition costs would be comparable in the United States. He did not comment on Joe’s testimony that it would cost $500 to send each gun to the United States.

[176] In closing submissions, Lynda revised her request for valuation of the gun collection as at the date of separation from $850,000 to $715,940.80 comprised as follows:

(a) $106,000 for the 115 guns sold by Gagnon;

(b) $202,416 for the 183 remaining guns not yet sold (based on the average sale price of the 155 guns obtained by Gagnon on the long guns);

(c) $92,524.80 accounting for damage to the guns;

(d) $75,000 for the Lancaster 600 double barrel (from the transcribed Note);

(e) $30,000 for the C.W. Andrews double barrel (from the transcribed Note)

(f) $200,000 for the handguns;

(g) $10,000 for the machine guns.

[177] Lynda notes her calculation does not include the gun paraphernalia.

[178] The Lancaster 600 and the C.W. Andrews long guns are listed with Gagnon as not sold. No list price was added to Gagnon’s list; however, the Lancaster has been set aside by Joe to give to his son.

[179] The figure of $92,524.80 reflects the total depreciated value of the guns held by Gagnon have been reduced by due to the damage caused by them, and hence added into the calculation to approximate the value of the guns in an undamaged state as at the date of valuation. This appears to be based on an unproven assumption that the damage caused a depreciation of 30%. However, the only reliable evidence I have on this issue is Noel Pardy’s estimate that the damage caused a depreciation of about 20 percent overall. I will use the 20 percent figure which reduces the damage depreciation to $61,683.20. This in turn reduces the total valuation to $685,099.20 for the collection in an undamaged state as it was at the date of separation.

[180] Lynda’s basic assumptions are reasonable based on the evidence primarily provided by Noel Pardy and takes into account Joe’s apparent tendency to overvalue at least some of his guns.

[181] I find that the value of the gun collection, as it stood in 2020, at the date of valuation/separation is $685,099.20 from which 20 percent should be deducted to account for the commission/disposition costs. This figure is consistent with Joe’s own estimate in 2010 as communicated to Lynda and Sean, Sean and Joseph Jr.’s evidence, as tempered by the sales to date plus list prices which Noel Pardy testified are inflated. This is not an exact calculation, but rather my assessment based on the evidence before me.

[182] However, Joe seeks an order for unequal division of net family property on the basis that his gun collection has been substantially devalued as a result of the damage to the guns caused when the police seized and handled them, and the legislative act of Bill C-21.

The law – Unequal Division of Net Family Property

[183] The FLA provides for an unequal division of net family properties:

Variation of share

(6) the court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

[184] The only subsection that may apply in these circumstances relating to the subsequent the valuation of Joe’s gun collection due to post-separation events is the subsection 5(6)(h) of the FLA.

[185] The burden is on Joe to demonstrate that equalization of the net family properties under section 5(1) it is well established that the test for unconscionability is a high one: Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161. However, the focus is on the result of the application of s. 5(1), not necessarily the conduct giving rise to the result. The result of an equal division of net family property must result in an unconscionable result in order to meet the threshold required.

[186] Once the unconscionability threshold has been crossed, resulting in a rare resort to the exercise of judicial discretion to engage in an unequal division of net family property must exercise its discretion in order to do what is just, fair and equitable in the circumstances of the case: Serra, at paras. 46-67, 93.

[187] Unconscionability has defined as meaning that the result of an equal division would “shock the conscience of the court”: Serra, at para. 47.

[188] The court may take into account the decline in the value of an asset that transpires after separation in determining whether s. 5(6) applies: Serra, at para. 47; Earle Barron v. Barron, 2012 ONSC 2837, at para. 265.

[189] In Kean v. Clausi, 2010 ONSC 2583, 90 R.F.L. (6th) 186, at para. 13, Mossip, J. found that the reasoning in Serra is not restricted to extreme cases involving only the very wealthy, nor where the result would be that the equalization payment would result in an amount that is greater than the net worth of the payor spouse as in Serra.

[190] In this case, Joe’s position is that the legislative change caused by the passage of Bill C-21 is an extraordinary event that has resulted in a decease in the value of his gun collection.

[191] Relevant to the circumstances underpinning this analysis is the extent to which the gun collection has been devalued due to the passage of Bill C-21, and the physical damage to the guns when they were seized and handled by the TPS.

[192] I reject Joe’s position with respect to the current value of the gun collection being worth $130,000. It only reflects sale proceeds plus listing prices of the unsold guns with Gagnon. It does not reflect any of the handguns which can be sold in the United States or any of the guns being marketed by Ellwood Epps.

[193] I find that the more persuasive evidence, given the paucity of evidence, is reflected in Joe’s 2022 affidavit wherein he swore that the guns in their current condition and circumstances were worth over $450,000 and Mr. Pardy’s evidence about the actual sale and list prices of the long guns. This figure somewhat approximates Mr. Pardy’s rough estimate that the damage to the long guns he has carriage of likely reduced their value by about 20 percent, combined with Mr. Pardy’s assessment that the remaining guns were somewhat overvalued by Joe. I have also taken into account the fact that some of the guns held by Gagnon are not for sale, but rather, Joe is holding back these guns to give to his son.

[194] As for the passage of Bill C-21, the evidence is not that the restricted handgun collection cannot be sold. Rather, Bill C-21 prevents the sale of the handgun collection in Canada. Joe still has the option of attempting to sell these guns in the United States.

[195] Again, Joe’s evidence was inadequate. I have no evidence from Elwood Epps on its attempts to sell the handguns, or what additional costs, if any, will be incurred by Joe in order to effect those sales. I have no expert evidence whatsoever on the impact of Bill C-21 on the market value of the handguns, or any evidence regarding the impact of the damage to the handguns, if any, on their resale price.

[196] Furthermore, based on my finding of the worth of the gun collection seized by the TPS, but prior to the passage of Bill C-21, which in turn is primarily based on Joe’s 2022 affidavit, the decrease of about 20 percent is not of a magnitude that is shocking to the conscience, nor will the resulting equalization payment owing by Joe be greater or substantially reduce his net worth. Obviously, Lynda played no role in the police seizure of the guns, much less any resultant physical damage to those guns, nor did she play any role in the legislative change upon the passage of Bill C-21 into law. In fact, Joe’s arrest leading to the seizure resulted in a conviction on the counts of simple assault and uttering threats against Lynda.

[197] Accordingly, I do not find that equalization of the net family properties, reflecting the value of the gun collection as at the date of separation, shocks the conscience of the court, and I decline to exercise my discretion under s. 5(6) of the FLA to order an unequal division of the net family properties.

[198] While Lynda objected to the raising of this claim as it was not pleaded, it is my ruling that she was not caught off guard by Joe’s position regarding the devaluation of his gun collection by reason of these post-separation events. This was the subject of case conferences and court orders. This issue was fully canvassed in the evidence by Lynda and Joe. As stated in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, at paras. 16, 39-40, a claim under s. 5(6) of the FLA need not be specifically pleaded to be considered by the trial judge, provided no one was taken by surprise by the claim. Accordingly, Joe was entitled to raise this claim for unequal division of the net family properties.

[199] To summarize, I find that the value of Joe’s gun collection as at the date of valuation is $685,099.20 less disposition costs of 20 percent ($137,019.84) for a net value of $548,079.36.

Value of Lynda’s Kia Sorrento Car

[200] There was no agreement on the value to be assigned to Lynda’s 2019 Kia Sorrento car as at the date of valuation.

[201] Lynda submits that the value that should be attributed to her net family property for this car is $22,900.

[202] Joe did not address this issue in the oral or written submissions.

[203] Lynda relied on a Black Book value and chose the mid point value.

[204] This is a reasonable approach, and Joe did not tender any evidence to support a different valuation.

[205] I am fixing the value of the Kia Sorrento car at $22,900.

Joe’s Medal and Coin Collection

[206] Joe submits that he inherited the coin collection from his grandfather, and the medals from his father. He testified that the coin collection has little more than sentimental value.

[207] Lynda testified that she recalled that Joe got a bag of coins from a neighbour for “very little money”. She was unable to provide an estimate of the value of these coins. She testified on cross-examination that she did not think Joe’s parents kept coins, but if Joe inherited them, she was unaware of that circumstance.

[208] Lynda did not provide evidence to challenge Joe’s assertion that he inherited the medals from his father.

[209] Lynda submits that the coin collection is worth $1,000.

[210] I am persuaded by Joe that he inherited the medals from his father. I am also persuaded that the coin collection, which appears to be of modest worth at best, was inherited from his grandparents.

[211] These items are excluded as an inheritance to Joe, and valued at $1,000.

Joe’s 1972 Cabin Cruiser Boat

[212] The issue is valuation of this boat as at the date of separation.

[213] Lynda submits the boat was worth $25,000.

[214] Joe submits the boat was worth $10,000.

[215] Lynda relies on a copy of the boat’s State Farm insurance policy for the period from November 20 2018 to November 20, 2019. The property damage coverage for the watercraft, motor and equipment was $25,000.

[216] The policy shows that the boat was built in 2000.

[217] Joe testified that he bought the boat for pleasure in 2001 or 2002 for $11,000. He testified that it is a 1972 model and that it has been in storage for more than 15 years. He testified that the engines do not work and that it costs $1,000 a year to store.

[218] Lynda did not testify about the condition of the boat, the purchase price or the date it was bought.

[219] I am persuaded by Joe that the State Farm insurance policy is not a proxy for the value of the boat as at the date of separation. It does not make sense that a 1972 boat purchased for $11,000 in 2001 or 2002 has appreciated in value.

[220] I accept Joe’s evidence, that the boat is likely worth $10,000 showing a slight depreciation from the purchase price and the condition of the boat as at the date of separation.

Summary of Equalization Claim

[221] The parties filed a Form 13C: Comparison of Net Family Property Statements as an exhibit at trial. The parties agreed upon all of the values with the exception of 6 items. I have used all of the undisputed values, and replaced the six disputed values with my values below.

[222] I have found the following with respect to the six items (in order of appearance in the Form 13C) at date of separation:

(a) 329 Hugill Road: I have determined Lynda is holding this property in trust for Joseph Jr. This property does not form part of the net family property. It is removed.

(b) Value of Lynda’s Kia Sorento: I have valued Lynda’s car at $22,900.

(c) Joe’s Grew Cabin Cruiser: I have valued Joe’s boat at $10,000.

(d) Joe’s Gun Collection: I have valued Joe’s gun collection at $548,079.36.

(e) Joe’s medals and coin collection: I have determined these items were inherited by Joe from his grandfather and mother. I will fix the value at $1,000 for NFP calculations.

(f) Joe’s personal loan from Cathleen Miceli: I have determined that Joe has not proven the existence of this debt. Accordingly, it is removed from his debts under the net family property.

[223] I have calculated the equalization payment. Joe owes Lynda by way of an equalization payment the following: $3,842,251.82 - $109,969.15 divided by 2 = $1,866,141.34.[1] Accordingly, Joe shall pay Lynda an equalization payment of $1,866,141.34.

Tort Claims

The Tort of Intimate Partner Violence and Alternative Traditional (Domestic Violence-Related) Tort Claims

[224] It bears repeating that, since argument concluded before me, the Supreme Court of Canada released its landmark decision in Ahluwalia.

[225] Lynda claims that she was the victim of abusive conduct and was subject to coercive control through Joe’s abusive conduct resulting in a violation of her dignity, autonomy, and equality throughout the course of her married life, including after the date of separation. She claims that Joe engaged in a pattern of abusive tortious conduct, including repeated physical abuse, constantly belittling her, verbally abusing her, threatening to harm or kill her (sometimes in front of the children) and being physically aggressive towards or threatening to the children in front of her to intimidate her. She advances the tort of intimate partner violence (“IPV”) and, now in the alternative, the torts of physical assault, battery, and the intentional infliction of emotional distress, for which she seeks general and aggravated non-pecuniary damages and punitive damages.

[226] In the course of her original closing submissions, Lynda quantified her claim for damages arising from her traditional tort claims as follows: $250,000 for general, non-pecuniary damages, $100,000 for aggravated damages, and $100,000 for punitive damages.

[227] After the release of Ahluwalia by the Supreme Court, and in her recent submissions in support of her IPV tort claim, Lynda requested a lower sum for the tort of IPV. This does not make sense since the Supreme Court of Canada held that whatever damages may be warranted under the pre-existing traditional (personal injury) tort claims, they will be higher under the new tort of IPV for overlapping abusive conduct because the new tort addresses the newly recognized wrong of coercive and controlling behaviour, and a distinct harm; namely, to the intimate partner’s dignity, autonomy and equality within the intimate partnership: Ahluwalia, at para. 56.

[228] This quantum-based directive from the Supreme Court also means, in my view, that there is no personal injury cap with respect to the tort of intimate partner violence. This stands to reason because, assuming the personal injury cap applies to the other tort claims such as assault and battery, then damages for the tort of IPV will exceed the personal injury cap by virtue of the Supreme Court of Canada’s determination that they will be higher than the traditional tort claims for the same overlapping abusive conduct to account coercive control and violation of an intimate partner’s dignity, autonomy and equality. That said, the existing principles for determining tort damages for intentional torts in personal injury cases applies to the newly created intentional tort.

[229] Joe disputes Lynda’s claims and denies that he committed any assaults, battery, or the intentional infliction of emotional distress, or engaged in any form of coercive control through abusive conduct, aside from the two counts of assault and uttering threats he plead guilty to in 2023. In the alternative, Joe submits that any damages awarded should be minimal, and that no punitive damages should be awarded as he was already punished in the criminal justice system.

[230] Joe also raised a concern over the fact that Lynda did not plead specific monetary amounts by way of damages she was seeking in her Application. However, the Family Law Rules do not require that the Applicant set out with particularity the amounts sought as damages.

[231] The pleadings rules under the Family Law Rules are somewhat less demanding that the counterpart rules under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Family Law Rules are governed first and foremost by the primary objective of these rules set out in r. 2(2) and as expanded upon in r. 2(3):

2(2) The primary objective of these rules is to enable the court to deal with cases justly.

2(3) Dealing with a case justly includes,

(a) in ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[232] Provided that Joe was not taken off guard or by surprised by Lynda’s claim for general, aggravated and punitive damages, there is no reason not to adjudicate her claim on the merits. As stated, Joe was well aware of the fact that Lynda was suing him in this family proceeding for damages arising from the tortious abusive conduct. Second, Joe was aware in advance of the trial, that Lynda was calling two of her treating health care providers to provide evidence on harms, treatment, and opinions formed during the course of her treatment with respect to the harms arising from the abusive conduct. The damages issues were fully canvassed during the trial, and Joe responded to them through cross-examination and in closing submissions. Joe did not raise any prejudice.

[233] In fact, in Lynda’s Amended Application, she sought “damages on account of the Husband’s tortious conduct as set out below…”. Under the section, Important Facts Supporting My Other Claim(s), Lynda provided substantial details and an overview of her IPV-related tort claims and the abusive conduct, which included an allegation of coercive control, together with particulars underlying her claim for damages and specifically plead relief in the form of general, special, aggravated and punitive damages for the assault, battery and the former tort of family violence. It was conceded at the outset of trial that the tort of family violence was not recognized as a justiciable claim by the Court of Appeal in Ahluwalia v. Ahluwalia, 2023 ONCA 476, 167 O.R. (3d) 561. That decision has now been overturned, and the tort of IPV has been created.

[234] As an aside, in civil proceedings, the sum of punitive damages being sought is not required to be plead. Furthermore, courts in civil proceedings typically allow the plaintiff to increase their claim for damages at trial.

[235] That said, the Family Law Rules permits a respondent to deliver a Request for Information and seek appropriate details and documents underlying the tort claims and damages being sought arising from intimate partner violence, and the ability to conduct questioning.[2]

Preliminary Issue – Admissibility of Audio Recordings

[236] Lynda tendered a number of audio recordings into evidence. Joe objected on the basis that some of them were surreptitiously recorded.

[237] A voir dire was held to determine admissibility of five of these audio recordings. It was agreed that if I ruled the audio recordings to be admissible, the evidence on the voir dire would form part of the trial record.

[238] The subject disputed audio recordings were of telephone calls between Lynda and Joe. They occurred after the date of separation, from approximately July 2021 to October 2021.

[239] There were also audio recordings of eight voice mail messages Joe left on Lynda’s voicemail after separation in and around 2021, but these were not objected to and were admitted into evidence. The voicemail messages were obviously not surreptitiously recorded as Joe knew his message was being recorded. The tendered video clip was the subject of the agreed statement of facts showing the incident for which Joe was convicted of the simple assault contrary to s. 266 of the Criminal Code. This incident occurred in December 2020.

[240] Lynda identified the voices and affirmed that she did not alter the recordings in any way. The audio recordings did not always capture the whole conversation if she was picking up the phone and did not know it was Joe until he spoke, at which time she would start recording.

[241] There was no dispute that the voices on the audio taped recordings were those of Lynda and Joe. It was clear that only the very beginning portion of some of the calls were not recorded. Lynda had blocked calls on her system as she was experiencing many calls from Joe in 2021.

[242] At the conclusion of the voir dire, for reasons delivered orally, I admitted the audio recordings of the telephone calls between Lynda and Joe, in addition to the voicemail messages left by Joe for Lynda, and the video recording, for the truth of its contents, and reserved the right to address this ruling in these Reasons.[3]

[243] In brief, I determined that the audio recordings were reliable and authenticated. The probative value of the audio recordings was to demonstrate the hostility, threats, language used, and pattern of harassment Lynda alleges against Joe which occurred both before and after the date of separation in support of her tort claims arising from abusive conduct and coercive control, and in support of her request for a permanent restraining order against Joe. The probative value of these recordings outweighed any prejudice to Joe.

[244] I also determined that the general public policy admonition against the admission of surreptitious recordings in family law proceedings was not persuasive in this context. The telephone calls occurred after the children were independent adults. The relevant context is that of the IPV related tort claims. It is well known that many alleged acts of family violence occur in private: Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at paras. 144, 145, 183, 186. Public policy favours the admission of recordings, surreptitious or not (provided they are reliable and authenticated), of events of alleged family violence: see, Fleury v. Budd, 2023 BCSC 1749, 94 R.F.L. (8th) 121, and Kralka v. Courtis 2024 ONSC 1761, at para. 11.

[245] Furthermore, the primary concern in the admissibility of surreptitious recordings in family disputes is the preservation of good faith relations between spouses particularly where the best interests of the children are impacted. In this case, by 2021, there were no dependent children, and no good faith relations remained to be preserved.

The Evidence - Liability

Lynda’s Testimony

[246] Lynda testified that throughout the course of their troubled marriage, Joe was constantly threatening her with violence, physically abusing her, and verbally and psychologically abusing her.

[247] Lynda testified about both general and specific incidents of physical violence which she claims to have sustained over the course of her life with Joe commencing the year of their marriage in 1966 and ending post-separation from Joe.

[248] Lynda testified generally that Joe would kick, smack, slap, choke and punch her, as well as frequently twist her arm behind her back to force her to the ground, pull her hair out of her head, and had “smashed” her head and back, resulting in injuries such as lacerations, bruises, broken teeth, chronic pain, and adverse psychological effects. He would also drag her across the floor and chase her around with a metal “billy” stick about 2 feet long. She explained the “billy” was the same type of instrument used by the police. It was compact but when it was shaken, a steel rod would extend from it.

[249] Lynda also testified that there were so many such incidents that she cannot remember each of them; however, she remembered some of the more severe incidents distinctly.

[250] Specific incidents of abusive conduct she testified about included:

(a) In 1966, shortly after their marriage, Joe took Lynda by car to a Kmart for its grand opening. While there, he inexplicably abandoned her. He drove away without her, while her purse was still in the car requiring her to walk to their first home (an apartment) which was about seven kilometres away at night. When she finally arrived home, Joe falsely accused her of taking a ride home with a man and slapped her hard enough that she fell to the bed. This incident occurred shortly after they had moved into their first home together, in a basement apartment in Toronto. This was her first lesson in what would become a series of adaptations to survive the marriage.

(b) On another occasion in 1966, Joe hit Lynda so hard that she ran out of the home to her neighbour’s house across the road. Joe arrived and threatened to kill her mother if she did not return home immediately. As a result of this threat, she did not allow the neighbour to call the police and returned home. By this time, they had moved to their first house on Syracuse Crescent (“Syracuse”) in Toronto. This lesson resulted in Lynda fearing the consequences to others, should she defy Joe.

(c) In 1967, while still living on Syracuse, Lynda returned home from work in a snowstorm. Their eldest child, Coleen, was three months old. She was late returning home from her overnight job because the bus could not make it up the hill on the way home and she had to wait for another bus. The door was locked and Joe refused to let her in. She broke the glass to the door accidentally from banging on it. Joe opened the door, pulled her in, and started hitting her with a full glass ketchup bottle all over while she was on the floor. He broke her front teeth with the ketchup bottle. Her eyes were blackened and she was bruised. She got her teeth fixed with caps. She thinks this happened on a Friday. She recalls she had to take two days off from work and was concerned that she was going to lose her contract job. She told people at work that she had been in a car accident to explain her injuries.

(d) On a number of occasions while they were living in their semi-detached house on Syracuse, there were multiple instances of Joe’s violent outbursts and beatings against Lynda, leading to the neighbours living in the other half of the house banging on the wall and threatening to call the police. Unfortunately, the police were never called by these neighbours.

(e) In 1970, Lynda had allowed Coleen, who was four years old at the time, to play with the boy who lived next door in the same house on Syracuse. Joe was furious about this and she saw him pick up Coleen by the hair and throw her down the stairs. This made Lynda particularly upset. She testified that it was okay for Joe to mistreat her, but not Coleen. This was not the only time Joe demonstrated uncontrollable rage against the children.

(f) In or around 1990 or 1991, at Christmas time, the children were gathered in the family home living room with Joe and Lynda. After the two youngest went to bed, Lynda, Joe, Coleen, and Joseph Jr. remained. Coleen was attending university. Lynda’s mother had died and left a property at 763 Lansdowne Ave. (“Lansdowne”) to her, Coleen, and Joseph Jr. Coleen wanted the property sold so that she could use her share of the proceeds. Joe said no, and Coleen accused him of being greedy. This enraged Joe. He jumped up and moved towards Coleen aggressively. Lynda, sensing what would happen, intervened and grabbed Joe to restrain him causing Joe to turn on her. This, in turn, caused Joseph Jr. to intervene. Joe went to his gun room and retrieved a gun. In the interim, Lynda ran upstairs and woke up Kathleen and told her to wake up Sean, put on some clothes and get downstairs quickly. At this time, Joseph Jr. was restraining Joe and told the rest of them to get out of the house. They left the house, with Joseph Jr. following in a different car, and they drove away. Lynda believed that Joe was going to fire his gun, probably at her, but she mostly feared for the children at the time.

(g) In September 2005, while driving home from the cottage, Joe became so angry he threatened to punch Lynda, causing her to run out of the car in fear when they arrived home.

(h) In June 2015 (after the children became independent and moved away from the home), in the course of an argument, Joe hit Lynda on the head with such force that she suffered a severe laceration. She reluctantly went to the hospital because on this occasion, unlike others, she could not make the bleeding stop. An emergency record from Lakeridge Health dated June 27, 2015, confirmed this attendance and the head laceration which required stitches. The clinical record stated that the injury occurred at around 6:30 p.m., and that the patient was “vague” about the details leading to the injury, stating that she fell against something. The recorded observation was that Lynda was being avoidant about the cause of the injury. While the emergency record cannot be adduced for a diagnosis or other opinion, the clinical observations and treatment are admissible facts in this business record. Lynda testified that she did not disclose that Joe caused these injuries because she did not want the police called. In response to the question of whether her husband had done this, the record reflects that she “shrugged”.

(i) A second emergency department visit occurred on March 16, 2016. Joe owned a Corvette sports car which he coveted. He was backing into the garage with Lynda directing him. He wanted her to direct him to as close to the garage wall as possible. When he exited the car, he was not happy about its placement. She anticipated he was going to beat her by his posture as he started walking towards her. She grabbed an object from behind her and held it up to defend herself. He grabbed the object out of her hand and struck her hand resulting in a serious V-shaped laceration on the top of her hand. She again went to Lakeridge hospital to have it stitched. It required eight stitches. The Emergency Record indicates that there was a laceration to the right hand which was characterized as a defensive wound from a hammer. In that record, it is recorded that Lynda admitted to enduring decades of physical abuse from Joe. While there was no objection to the record being filed as an exhibit, the prior consistent statement is only admissible to rebut the claim of recent fabrication. A photograph of the unstitched hand which was taken by Lynda at the time was also admitted into evidence. This photograph also shows marks on Lynda’s face and neck. Lynda confirmed that these marks came from Joe during this incident. Another photograph of Lynda’s stitched hand after her return from the hospital was also admitted into evidence.

[251] Lynda testified that Joe’s physical abuse worsened in 2016 causing a brief separation between 2016 and 2017. Lynda moved in with Kathleen and her family during this temporary separation. However, she ultimately returned to Joe in 2017.

[252] Lynda testified about an incident that she experienced in 2018 which she called the “key incident”. In brief, Joe accused her of stealing his keys as he could not find them, and he always kept them in the same place. He eventually found his keys but accused Lynda of hiding them, which she denied. He became enraged, and put her in a choke hold, forced her on to the ground, began beating her, and told her he was going to kill her. This was distinct because he was not in the habit of choking her up to that point.

[253] Lynda testified that beginning in 2020, the physical violence further escalated with Joe, often featuring a push, slap, or punch. He also hit her face hard enough that her glasses would be knocked off, leading to them breaking on one occasion.

[254] She does not know why, but it would not take much for Joe to anger and begin a physical altercation. For example, during the spring of 2020, Joe accused Lynda of taking his pillow leading to violence on his part. Also, during that spring, in response to Lynda throwing out an empty paint can to Joe’s displeasure, he yelled and pushed her.

[255] Joe’s refrain whenever he struck Lynda was that it was her own fault that the physical altercation happened and she had asked for it.

[256] It got to the point where Lynda would try to escape Joe’s rage by barricading herself in a bedroom – referred to as the Green room. She would push the dresser in front of the door to stop Joe from barging in and hide in a closet she secured from the interior with belts. Also, she calculated that she could escape from the window which led to the roof of the garage from which she could “shimmy down”.

[257] Lynda testified that there were other occasions when Joe choked her, twice hit her on the side of the arm with a billy stick, threw dishes at her if he did not like the food she prepared (the last incident being in or around 2019) and slapped, kicked, and punched her, however, as stated, these latter actions were commonplace and she cannot now distinguish between the incidents such as to testify about each one.

[258] Another form of repetitive violence was arm twisting. Lynda testified that, often, Joe harshly twisted her arms and shoulders as that was the movement he used to force her to the ground. She suffered much pain from the arm and shoulder twisting and believes her left rotator cuff was torn twice, and her right one torn three times. She testified this has caused ongoing sleeping difficulties from the discomfort, as well as challenges when trying to reach behind her back or pull a sweater over her head.

[259] Lynda also testified that she had a genuine fear that Joe would put a bullet in her. She testified this fear was bolstered by what he said to her, and the fact he had the means to carry out this threat.

[260] As stated, Joe is a prolific gun collector. He is a marksman. He had every type of firearm from handguns to machine guns. He is extremely proud of his accomplishments at a gun collector of over 500 guns, and his marksmanship in competitions and as a trainer for the military police.

[261] As also stated, Joe would sometimes run into his gun room or to his “go bag” and take out a gun when he was enraged with Lynda.

[262] Lynda also testified that on numerous occasions, in the midst of his rage, Joe would tell her that he had the “25 cent or ten cent solution for her”. This referred to the approximate cost of making a bullet – Joe knew how to make his own ammunition. Lynda understood at the time that Joe was threatening to kill her.

[263] On other occasions, while enraged, Joe would ask, rhetorically, if Lynda needed a “tune up” or would tell her she is going to get a “tune up”. By “tune up”, he meant a beating, and she knew it.

[264] As a result of these constant threats, sometimes backed up by the actual production of a gun or a beating of some sort by Joe, Lynda lived in constant fear of being beaten, if not killed, throughout her life with Joe. Lynda was trapped in the marriage always trying to behave in a manner that would not trigger one of Joe’s bouts of rage and the ensuing violence.

[265] Lynda testified that during their lived married life together, she feared Joe and lived in fear for her own personal safety, but more importantly to her, her children’s safety. She stayed in the marriage because she believed the children would be at risk if they were left alone with Joe.

[266] As at the date of trial, Lynda lives at an undisclosed location as she continues to fear Joe will find and harm her in retribution for the separation and resulting litigation. Her children do not know where she lives. She refers to Joe finding her in the past and relentlessly pursuing her when she lived at her children’s various homes, and particularly, Kathleen’s home.

[267] Lynda was not challenged regarding the incidents of violence towards her on cross-examination. Rather, she was challenged on the incident involving Coleen being thrown down the stairs by Joe. Lynda confirmed that none of the children, including Coleen, had to be hospitalized due to Joe’s alleged abuse. The majority of the cross-examination regarding the IPV/abusive conduct allegations related to damages.

[268] Lynda’s testimony of suffering violence at the hands of Joe was corroborated by the testimony of all four children, the audio and video recordings, by the photographs and Lakeridge emergency records filed in evidence.

Coleen Mitchell

[269] Coleen is the parties’ eldest child. She was 59 years old at the time of trial.

[270] Coleen testified that her mother was kind, loving, compassionate, patient, understanding, and selfless. She treated the children fairly and tried to protect them from the difficult situation at home.

[271] In contrast, she described her father as cruel, impatient, unloving, manipulative, selfish, greedy, assured of himself, and unapologetic.

[272] Coleen testified that Joe was verbally and emotionally abusive to all of them, but mostly and constantly to Lynda. By verbally abusive, Coleen clarified that she meant name calling, humiliating a person, putting them down, and making them feel worthless. She described his verbal behaviour as “beating somebody down with their words”. The names she could recall hearing Joe call Lynda throughout the marriage included: “stupid”, “retard”, “fat”, “cunt”, and “bitch”.

[273] She also witnessed Joe putting their mother down by criticizing how she looked, what she did, and her cooking in front of the family and others outside the family.

[274] She testified that Joe yelled at Lynda a lot, and that Coleen felt sick to her stomach not knowing when Joe would “lose it” next.

[275] Coleen witnessed many arguments and ascribed most of them to her father who would be yelling, screaming, swearing generally at their mother. She rarely saw her mother stand up to her father and described him as being threatening in words and actions towards Lynda.

[276] In terms of threats, Coleen witnessed Joe lunging at Lynda, raising his hand as if to hit Lynda, and threatening that he was going to teach Lynda a lesson or was going to hit her.

[277] While Coleen did not hear Joe say to Lynda that he was going to “shoot” her, she inferred that, when Joe told Lynda he was going to teach her a lesson, it was a gun threat because guns were in the house and a constant danger.

[278] Coleen recalled there was a brief period of separation between Joe and Lynda.

[279] Coleen specifically recalled the Christmas 1990 incident wherein she suggested that the inherited Lansdowne property be sold. She confirmed that when her father resisted, she called him greedy. She testified that Joe sprung from the couch towards her and that Joseph Jr. intervened. Her father ran into the den where he kept his go bag with guns and Joseph Jr. went after him. Lynda then went to get Kathleen and Sean while Joseph Jr. was struggling with Joe who was now armed. Everyone fled into the winter night into two cars. Joseph Jr. went in one car, following Lynda and the other children. Everyone was very afraid that Joe had lost it and was actually going to shoot someone that night. She said it was an extremely frightening and frantic situation.

[280] Coleen observed that, like the Christmas incident, one never knew what was going to spark Joe’s rage and that they were constantly walking on eggshells.

[281] By way of example of Joe’s erratic physical behaviour, Coleen recalled a time when Lynda brought her father a bowl of popcorn and he threw it across the room for no apparent reason.

[282] Under cross-examination, Coleen was not challenged about the abusive conduct she witnessed towards her mother and experienced herself.

[283] It was suggested to Coleen that Joe’s evidence about the Lansdowne property would be that he purchased her interest in it for $30,000. Coleen denied that claim and emphasized that Joe’s agenda was to never sell it, but to keep exercising control over it. She added that she has refused to accept her share of the Lansdowne property sale proceeds from her mother until this litigation is completed and asked her mother to hold on to the proceeds in the interim on her behalf.

Joseph Mitchell Jr.

[284] Joseph Jr. was 57 years old at the time of trial. He deposed that he lived with his parents from the time he was born in 1968 until 1993. He also lived with them periodically during the 1990s and 2000s. He lived with them at 266 Waite Rd., 6 Watson St., and 21 Syracuse Crescent.

[285] He deposed that throughout his life, he witnessed Joe’s “aggressive and violent behaviour” toward Lynda, his siblings, and himself.

[286] He witnessed his father hit or be physically violent with Lynda on numerous occasions.

[287] In particular, he deposed that in or around 1990 he was present during the argument Joe had with Coleen concerning an inheritance from their maternal great-grandmother. He, Coleen, and Lynda each inherited a third share of 763 Lansdowne Ave. He witnessed Lynda intervene when Joe became aggressive towards Coleen. Joe responded by grabbing Lynda by the throat, choking her, and slapping her with an open hand on her face. Joe then left and came back with a gun. Joseph Jr. then intervened to disarm Joe, and they hurriedly left the house in separate cars.

[288] Joseph Jr. deposed that he witnessed Joe lunging or chasing his mother in an intimidating manner when he was angry. He observed that his mother would be scared and intimidated when his father put himself aggressively in her face, and that Lynda would run from Joe to ensure her safety.

[289] He also deposed that his father often threatened to hit Lynda, his siblings, and him, by telling them that he was going to “tune you up”. They all understood by that phrase that Joe was going to hit them.

[290] On some occasions, Joe also punched, kicked, and grabbed Joseph Jr. by the hair, knocking him down on several occasions. He deposed that this sometimes occurred without any provocation such as if he rolled his eyes at his father, or if he did not answer question the way he wanted, Joe would slap him. He estimated this occurred at least 10 times.

[291] In addition, Joseph Jr. deposed that he heard his father repeatedly and routinely call Lynda names such as “stupid”, “cunt”, “whore”, and “douche bag”, and that these and other derogatory names were shouted in anger almost every day. Based on his observations, his mother lived in fear of his father.

[292] Joseph Jr. repeated much of his affidavit evidence in testimony, emphasizing that Joe would threaten to harm Lynda if she did not do as he said. He did not witness any threats of gun violence, other than the above incident. He also testified that they would never have called the police, because they had been taught that if the police came, his father’s gun collection would be taken away, and no one wanted to deal with those consequences given the high value placed on it by Joe. This theme was repeated by the other adult children.

[293] Joseph Jr. was not challenged in cross-examination about his observations of violence against Lynda or against himself and his siblings. Rather, the cross examination focused on property issues.

Kathleen Tsakanikas

[294] Kathleen is the third child born to Joe and Lynda. She was 42 years old at the time of trial and married.

[295] She described her mother as compassionate, empathetic, and responsible for family events, whereas her father was difficult, strong headed, opinionated, aggressive, unpredictable, and “very” controlling.

[296] She lived with the family until she was completed college in 2004.

[297] During her parents’ marriage she witnessed her father being physically aggressive to her mother. She testified that aggression, fighting, yelling and screaming by her father was the norm. She also witnessed physical alterations and gave some examples.

[298] When they were on vacation in the U.K., she and her brother who were sitting in the back seat of the car, witnessed Joe slap Lynda across the face. She saw that the left side of her mother’s face was red. On another occasion, her father was not satisfied with how the chicken was cooked so he took the cutting board with the chicken on it and threw it at Lynda.

[299] In addition, Kathleen heard her father threaten her mother frequently throughout the marriage. Joe’s typical phrases were: “Sounds like you need a tune up” and “I have a 10 or 25 cent solution”. Kathleen believed that a tune up was a reference to physical violence and the 10 or 25 cent solution was a reference to a bullet because that was the approximate cost to her father of making a bullet.

[300] In 2016, Lynda lived for a period with Kathleen and her family, away from Joe. Kathleen believes that there had been some violence prompting her mother to leave. Joe relentlessly called Lynda on the telephone. Kathleen would overhear her father yelling at Lynda to come home and making threats that he would kill Lynda and would come after Kathleen’s family if Lynda did not return. There were also threats to Kathleen’s family vehicles and property. Lynda eventually returned to Joe.

[301] Also, when Lynda came to live with her and her family from late 2020 or early 2021 to 2022, after separation, she witnessed her father exhibit a lot of physical aggression towards her mother. One day, Joe showed up uninvited to Kathleen’s house. Lynda was not there, but Kathleen happened to be working from home that afternoon. She heard pounding on the patio door from the backyard and assumed someone was trying to break into her home, as both sides of her house were fully gated. She thought the door was going to break from the pounding. However, when she realized it was Joe, she chased him away from the house and filmed him. She told him not to come back and reminded him he had already been told to stay away from the house.

[302] On another occasion, Joe showed up at her house and dumped a number of Lynda’s belongings on the front porch in a garbage bag and a purple suitcase.

[303] Kathleen also observed that her mother had no real friends during the marriage. Her father discouraged any such friendships. For example, when her mother joined a choir (during Kathleen’s late teenaged years), her father discouraged her mother from participating by calling the women in the choir “three-time losers” and “femin-nazis”.

[304] Kathleen testified that she has moved to a new home, and that she has not told Joe where she and her family now live because she is fearful for her and her family’s safety due to Joe’s direct threats.

[305] Kathleen was not cross-examined.

Sean Ryan Mitchell

[306] Sean is the parties’ youngest child. He was 37 years old at the time of trial. He was the closest to his father and they share a keen interest in guns. Joe shared a lot of knowledge about guns with him and taught Sean how to shoot and care for the various guns.

[307] Sean witnessed his father’s aggression towards his mother before they separated. There were a number of verbally aggressive situations, and some physical aggression as well.

[308] In terms of the arguments, Sean heard his father call his mother derogatory names such as “bitch”, “nosey”, and “cunt”. As well. Sean heard his father direct much profanity against his mother.

[309] Sean witnessed his father’s physical aggression in the form of grabbing his mother’s forearms with both hands. He saw bruises and skin tears on his mother during the course of their marriage.

[310] He recalled one particular incident in which there was an argument in the kitchen. The argument escalated to the point that Joe grabbed Lynda and was shaking her while calling her names. After Joe left the kitchen, Lynda threw a lemon towards the door and it stained the wall.

[311] He also recalled an incident that occurred in November 2021, after the date of separation. The family had a cottage on property that was part of a managed forest plan through the Municipal Property Assessment Corporation. 2021 was an audit year and Sean was going to try to get a tax rebate. However, in order to do this, the forest had to be logged. Joe agreed and a logging contract was signed. Sean booked a week away from work to tag all of the trees to be cut down. However, on the day in question, his father told the loggers not to come. Sean arrived and was angry about this as he had put much effort into this project and taken time from work to help. While he and his father argued, they walked down to the basement. His mother was with them.

[312] Joe became angry with Lynda, blaming her for causing the argument with Sean, and Sean intervened. He told his mother to get her stuff, as he did not want her staying on her own with his father that night. His mother stayed with Sean for a couple of days, but his house was only five kilometres away from Joe. When Joe came around looking for Lynda, Lynda moved to another sibling’s house.

[313] As well, Sean recalled his father often saying that he had the “25 cent or 10 cent solution” which Sean understood was a reference to a bullet. His father often threatened that “you are going to get what is coming to you” and threatened her to not hassle him.

[314] Again, Sean was not challenged on cross-examination about this evidence. The cross examination focused on property and valuation issues.

Joe Mitchell

[315] Joe’s testimony was diametrically opposed to Lynda and his children’s respective testimonies.

[316] He denied that there was any physical separation in 2016 and has no idea what was being referred to.

[317] He provided a blanket and bald denial of any abuse whatsoever towards Lynda, including any abuse in front of the children or towards the children. He testified that he did not like to argue and so he would go into another room to distance himself rather than argue.

[318] The only time he was ever physical with Lynda was when he had to remove guns from her. He did not provide any examples of Lynda brandishing a gun.

[319] When confronted with the testimony of his children who all gave evidence that they heard him use derogatory and belittling language toward their mother, Joe responded that the children had heard the recorded conversations in which he hurled verbal abuse towards Lynda, and that Lynda had coached them to lie.

[320] His explanation with respect to the children’s evidence was that it was rehearsed and that they colluded. As proof of his allegation, he testified that the children all testified about the same incidents. This allegation of collusion was not put to either Lynda or any of the children in cross-examination.

[321] When asked directly he denied the following:

(a) He did not slap or hit Lynda during the marriage;

(b) He never twisted her arm behind her back ever;

(c) He never choked her;

(d) He never smashed her glasses from her face;

(e) He never pounded her on her back;

(f) He never smashed her head with an open hand;

(g) He never pulled her hair numerous times;

(h) He never chased her around the house with a billy club;

(i) He never threatened her or the children with gun violence;

(j) He did not lock Lynda out when Coleen was three years old during a winter storm; and

(k) He did not commonly use derogatory language such as “slut”.

[322] Joe explained that Lynda’s teeth were broken from a childhood bicycle accident resulting in her chipping two teeth which he paid to have capped. He added that when they were first married, Lynda had a mouth full of cavities.

[323] Joe testified that Lynda was not exaggerating about the abuse but outright lying.

[324] He admitted calling Lynda bipolar and saying she was a paranoid schizophrenic but rationalized his language by saying that her reactions were like Joseph Jr.’s reactions, and his son is, after all, bipolar. He believes Lynda is bipolar and paranoid schizophrenic.

[325] Joe admitted that he got angry with Lynda in August of 2020 when she allegedly told him that the eldest daughter was not his and that she lied during the trial when she denied having said this to him. This is why he demanded that the children provide DNA samples – to prove he was their father. He claims it was only after this event that he used profanity towards Lynda, and that he only did so to explain his language on the voice recordings. No objective evidence was provided in support of this claim, including any DNA reports.

[326] He also claimed that the names he called Lynda, in that context, “were like water off a duck’s back”.

[327] He called Lynda a thief and used the example that she stole chocolate bars from Loblaws in their early days when she worked there. He also claimed that she stole money from him from time to time.

[328] Joe admitted that he used the phrase “tune up” from time to time, but it meant either a tune up on the car, or that he was going to confront Lynda. It did not imply physical violence.

[329] He denied confronting Lynda, after separation while walking her dog, and grabbing her by the hood.

[330] He denied ever telling the family not to call the police.

[331] His recollection with respect to how Lynda got stitches to her head was that they were in the garage, and as they were leaving, she grabbed a hammer “out of nowhere”. She started swinging it at him. He grabbed her arm and during the struggle the hammer hit her in the head. He added that whenever Lynda flew into a rage, she would grab anything she could and would try to hit him with it. According to him, Lynda would go “ballistic” on him. He could not remember, however, what prompted the argument that led to Lynda receiving stitches to her head.

[332] Similarly, his recollection about the events leading to Lynda having a severe laceration on her hand was that she flew into a rage after guiding Joe in parking his Corvette in the garage. He testified that after he got out of the car, he noticed that it was not parked in the correct place. He says this led to an argument and Lynda grabbed a hatchet and went to strike him, but that he grabbed her hand while she was swinging the hatchet, and she – yet again – hit herself.

[333] His explanation for why he thought Lynda told the doctor at the hospital that he inflicted this wound was because she was fearful that the incident would be reported to the police and she wanted to blame him instead of herself, so she would not be charged for assaulting him.

[334] His explanation with respect to Lynda’s claim that he choked her when he lost his keys was that he never loses anything as he always puts his things in the same place.

[335] His explanation for the photographs showing Lynda with a fat lip and blood was that they were doctored up or, if they were real, she must have fallen in the forest at their cottage and hurt herself. He added that if he had struck her, he would do it with his right hand, but her injuries were on the left side of her face. He is right-handed.

[336] He denied any knowledge about any incident involving a paint can.

[337] He denied that Lynda would flee to the “Green room” at the Waite Road matrimonial home. He said the dresser weighed over 300 lbs so it would be impossible for Lynda to move it in front of the door. He said he rarely went in because it was her sewing room. He said that she could not have hidden in the closet and locked it with belts from the inside because it had a single door.

[338] He did not recall any incident in which he forced her to walk on Highway 35 in the evening from the cottage.

[339] He denied causing any rotator cuff injury or ever twisting her arms. Rather, he said these injuries occurred about 20 years ago in the winter. It was icy outside, and Lynda slipped when she exited the car and she hit the bumper of the car door with her shoulder. This injury required her to have cortisone shots. He testified he had nothing to do with her slipping and hurting herself.

[340] Joe acknowledged the violent incident with Sean but testified that Lynda and Sean lured him into the basement on the pretence of getting some brass. When he opened the door and walked into the basement room, Sean shoved him into the wall, then he shoved Sean back, Sean then attacked him, broke his fingers, and left with Lynda. There was no medical evidence of any sort to confirm his contention that his fingers were broken on that day or at all. He admitted that the altercation occurred because he refused to pay the tree harvester $1,000.

[341] With respect to the phrase “25 cent solution”, Joe said that came from a movie they watched. It was a mystery detective movie. He added that in any event, he could make a bullet for five cents, not twenty-five cents. He denied using it as a threat.

[342] He also denied ever threatening to burn the cottage. He added: he paid for the cottage so why would he burn down his own cottage?

Convictions

[343] On May 9, 2023, Joe, who was represented by defence counsel, pleaded guilty to one count of assault between December 1, 2020 and December 31, 2020, against Lynda, contrary to 266 and s. 265(1)(b) of the Criminal Code of Canada, R.S.C., 1985, c. C-46.

[344] Joe admitted this conviction under the Agreed Statement of Facts and therefore a certificate of conviction was not necessary to be entered into evidence. However, the transcript of the plea and conviction was entered into evidence.

[345] The essential facts comprising the constituent elements of the crime as stipulated in the joint submission of Joe’s defence counsel and the Crown, are admissible from the transcript into evidence at this trial.

[346] Those facts are as follows:

(a) In December 2020, Joe made a closed fist and stepped toward Lynda at Lynda’s residence at 20 McNabb Boulevard. By holding his hand in a fist, raising his hand, and stepping towards Lynda, Lynda had cause for concern and turned her head away.

[347] On May 9, 2023, Joe also pleaded guilty to one count of uttering a threat to cause bodily harm on or about September 28, 2021, to Lynda contrary to s. 264.1(1)(a) of the Criminal Code.

[348] The essential facts comprising the constitute elements of the crime, again as stipulated in the joint submission, are:

(a) On Tuesday, September 28, 2021, Joe attended at their daughter’s home at 20 McNabb Boulevard uninvited. When Lynda told Joe to leave, he refused. Lynda was afraid, and retrieved her phone to call the police, at which time Joe uttered to her “Go ahead and call the police and you’ll see what happens”.

[349] Finally, he admitted that he was convicted with a Failure to Comply with a Release Order in relation to Lynda (as complainant) contrary to s. 145(5)(a) of the Criminal Code on May 4, 2022.

[350] As a term of his sentence arising from these three convictions (discharge on conditions), by Probation Order dated June 4, 2024, Joe was ordered to have no contact with Lynda, or be within 500 metres of any place he knows Lynda to live, work, go to school, frequent or any place he knows her to be with the exception of through counsel for purposes of the family law proceedings, amongst other terms. The terms expire two years after the issuance of the probation order.

Recordings

[351] The court listened to the five surreptitiously recorded telephone calls and the voicemail recordings left on Lynda’s machine by Joe. As stated, all were made post-separation and largely in 2021. Lynda started recording Joe’s telephone calls after having received multiple such calls from him which she characterized as vicious, demanding, and driving her crazy with his various demands of her. Most of Joe’s calls occurred when he wanted Lynda to do something for him.

[352] They were revealing.

[353] Joe was obsessed with his unsupported view that Lynda had a boyfriend. For example, when Lynda sent an email presenting three options for her retrieval of her belongings from the cottage, Joe’s response via a telephone call on July 15, 2021was “Get it through your fuckin’ head that you are not using the fuckin’ cottage for your fuckin’ boyfriend…I will burn down the cottage. Find some other place to fuck your boyfriend.” He did not accept Lynda’s response that she did not have a boyfriend.

[354] Disturbingly, in a telephone call in the summer of 2021, Joe threatens Lynda and gives her two choices: either pay him $20,000 for having used the cottage over the summer or she will need a wheelchair and a white cane. Lynda explained that she has little vision in one eye and one of Joe’s common threats was that he would poke out her good eye and she would need a white cane. He would also threaten her physical integrity by saying she was going to need a wheelchair if she wasn’t careful. Another threat he would commonly utter was that she would not need a place to live because she would have two broken hips.

[355] In another profanity ridden recorded telephone call, Joe says twice to Lynda, “it’s tune up time”. Lynda explained that tune up time means a few punches and beating and then she will do what he wants of her. Lynda testified that the language and threats used by Joe on these telephone calls were used throughout their marriage. When Lynda replies that she is changing her telephone number, Joe states “no problem” as he will find her and come to her. He also threatens that as soon as Lynda does something against him, he will come, see her, and she won’t need to do any talking.

[356] The telephone calls feature Joe’s voice in a rage uttering profanity, such as “fucking cunt” and threats to Lynda, including the “tune up” threat which Joe denies was a threat. However, it was undeniably a threat to harm Lynda based on the context of the conversation and as borne out by the children and Lynda’s testimony. I also heard Lynda standing up to Joe, and trying to diffuse the situation during these recorded telephone calls.

[357] These threatening and volatile phone calls stopped once Joe was arrested on the assault and uttering threats charge, and a restraining order against him issued as a term of his release.

[358] The voicemail messages left by Joe featured the same type of profane and derogatory language, threats, demands and anger, dispelling any notion that Joe made about Lynda being the instigator of his rage or the idea that, during marriage, he was in the habit of ignoring Lynda or walking into another room when she was allegedly in a rage. Again, Joe repeated his threat of giving Lynda a “tune up”. Lynda testified that she was accustomed to the threats and language from the marriage. She estimates that in one two-week period she received 44 messages or telephone calls in and around 2021, and called this pattern of telephone calls unrelenting harassment. She lived in fear of him showing up at her daughter’s door where she was living temporarily post-separation as a result of these interactions.

[359] When Joe threatened to attend Kathleen’s house, where Lynda was staying, and destroy all the computers, Lynda left the house as she took his threats seriously, including that he would come and punch or slap her. She began moving between her various children’s homes to keep Joe guessing and prevent him from finding her. She believes Joe’s threats were intended to instil fear in her, continuing the pattern of fear she lived with during the marriage. She knew that Joe would deliver on his threats, as he had many times before. She believes he knew that she would eventually capitulate to his demands because she was already afraid of him due to the past beatings and other forms of physical abuse and aggression. Indeed, post-separation, she kept doing things for Joe because of the fear of what would happen to her, or the children, if she did not.

Credibility and IPV Myths and Stereotypes

[360] The veracity of Lynda’s claims hinge on an assessment of credibility between her account of the incidents and threats, and Joe’s account. There is no issue about the reliability of any of the fact witness’ evidence.

[361] In assessing the respective credibility of Lynda and Joe, I must look at the whole of the evidence within the context of the surrounding circumstances. The surrounding circumstances includes in this case the fact that Lynda has made serious allegations of abuse against Joe, including verbal and physical abuse, and an engagement in a pattern of degrading and violent, coercive and controlling behaviour that was intended to, and caused Lynda to be in a constant state of fear and anxiety. I must therefore be alert to the myths and stereotypes surrounding relationships where intimate partner violence is alleged.

[362] The framework as set out at a high level in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 357 that the evidence must be in harmony with the surrounding circumstances, continues to be instructive, subject to the important observation that the court is now better apprised of the myths and stereotypes that pervade intimate partner violence claims and must not influence a credibility assessment. Some of those myths and stereotypes are:

(a) The partner did not leave the relationship and therefore there was no abuse or mistreatment: McLellan v. Birbilis, 2021 ONSC 7048, 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 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at pp. 871-890; Barreto at para. 166.

[363] In Ahluwalia, at para. 225, the Supreme Court of Canada identified further myths and stereotypes that can pervade IPV cases; namely, a wife’s implied consent to wrongful conduct, marital harmony as a justification for wives willingly staying in abusive relationships, and wives’ propensity to lie.

[364] In this case, another historical relevant myth and stereotype about female intimate partners arose through Joe’s testimony: that women are crazy and therefore inherently untrustworthy.

[365] I have no hesitation favouring Lynda’s testimony over that of Joe’s for several reasons.

[366] Lynda’s evidence of abusive conduct was corroborated by each of the four children. While Joe suggested in his testimony that Lynda had coached the children, and the children had colluded against him, this suggestion was never put to Lynda or any of the four children during cross-examination. It seems to have been a last minute thought by Joe once he took the stand having heard his children’s testimony in unison against him.

[367] Lynda was forthcoming in her testimony. She provided clear details of her allegations. She was not defensive or combative during cross examination. She was unshaken in her cross-examination on the material facts.

[368] Lynda’s testimony was corroborated or confirmed in many material aspects by the documents adduced, including the Lakeridge emergency records, the criminal convictions against Joe, the audio and video recordings, the photographs, and the children’s testimony. Her testimony about her impacts, including the chronic nature of some of them, were also substantially supported by the testimonies of her treating health care professionals and their records.

[369] Furthermore, contrary to Joe’s testimony, the children did not only talk about the same incidents. While some of the evidence overlapped, such as Joe’s aggression, threats, and use of profane language, certain of the children spoke about incidents they personally witnessed and, sometimes, experienced.

[370] The children are all adults and independent. They have no motive to lie, and nothing to gain by lying. While they were consistent with each other and Lynda, as stated, they also gave distinct recollections of independent violent incidents perpetrated by Joe against Lynda, Coleen, Joseph Jr., and Kathleen. They were each substantially unchallenged in their testimony about the abuse and violence they witnessed or experienced on cross examination.

[371] The audio recordings and voice mail messages support the children’s and Lynda’s characterization of Joe as angry, intimidating, threatening, and using profanity, belittling, and demeaning language towards Lynda.

[372] I have taken into account the fact that the recordings occurred post-separation, and conclude that aside from demonstrating his behaviour towards Lynda after separation, they are a continuation of the behaviour he demonstrated towards Lynda during the marriage, and as witnessed by the children.

[373] Joe was also convicted of assault and of uttering threats. While Joe downplayed these convictions on the basis that he plead guilty and relies on them to show that he never actually hit Lynda in relation to the assault, the conviction is conclusive proof of the incidents that took place at Kathleen’s house. The fact that Joe downplayed these incidents, one captured by video, shows that he has not accepted responsibility for his own actions on these occasions.

[374] Furthermore, Joe was not truthful. For example, he denied using the phrase “tune up” as a threat meaning that Lynda was going to be beat if she did not obey him. However, he used that very phrase in that measure in one of the audio recordings. He also testified that he never threatened to burn the cottage down, and yet, again, he was contradicted by his own statement recorded on an audio recording. He also claimed that in 2021, he was unable to cash a $25,500 bank draft because Lynda put a stop payment on it. However, he had to retract that answer when the cashed bank draft was put to him. As well, he claimed that he avoided conflict and would simply leave the room quietly; however, that portrait of himself is diametrically opposed to the eyewitness accounts of violent arguments, physical aggression, and the description of his aggressive and ugly demeanor by all four children.

[375] Furthermore, his explanation that the 10 to 25 cent solution was an innocent phrase that came from a movie was implausible; particularly since he made ammunition in the matrimonial home. The children were all hyper aware that they were not to ever discuss anything that could compromise Joe’s gun collection. They confirmed that they all knew that Joe’s refrain of the 10 or 25 cent solution inferred the use of a bullet against their mother.

[376] Finally, Joe alleged that Lynda was bipolar and schizophrenic as a basis for disbelieving her and to support his claim that she was the aggressor in their relationship. There is no evidence to suggest that Lynda suffers from either of these mental health challenges, including from her treating health care professionals who testified as participant experts, nor was such a suggestion put to either of them.

[377] Accordingly, where there is a conflict on a material fact relating to the tort and damages claims asserted by Lynda, I favour Lynda’s evidence over that of Joe’s.

The Tort of Intimate Partner Violence

[378] With the release of its decision on May 15, 2026, the Supreme Court of Canada created the new tort of intimate partner violence.

[379] The Supreme Court of Canada is using tort law as a tool to regulate behaviour between intimate partners. This is an established function of tort law.

[380] The purpose of this new intentional tort is to protect an intimate partner’s dignity, autonomy, and equality within the intimate partner relationship. This tort provides a cause of action for compensable harm resulting from an intimate partner’s interference with their partner’s dignity, autonomy and equality, within the intimate partnership, through coercive control enabled by abusive conduct which can take a myriad of forms. Also of note, it can take only one abusive act to satisfy the abusive conduct element of the tort. This is because one act can have the effect of “teaching” the vulnerable intimate partner that if she falls out of line again, worse will happen.

[381] The Supreme Court also identified this tort as gender-based; observing the current reality that in the majority of times, the victim of IPV is female, and the aggressor is male. However, of course, men can also be the vulnerable one in an IPV situation, and IPV can also occur in same sex relationships.

[382] Damages will be assessed in the ordinary course of personal injury tort law principles, consistent with intentional tort law, and can include all of the categories of damages: pain and suffering, aggravated, and pecuniary loss including income loss (past and future), special damages (such as for treatment costs), as well as punitive damages. However, the Supreme Court in Ahluwalia has narrowed the scope of aggravating factors to sustain an aggravated damages component to a non-pecuniary damages award by reason that the context of the harms caused by an intimate partner is already an element of the tort: Ahluwalia, at paras. 8-9. This context would include, for example, the betrayal of trust between the intimate partners which would otherwise be a recognized aggravating factor justifying an enhancement of the non-pecuniary damages award. The Supreme Court did not rule out the possibility of other aggravating factors being applicable, but it is clear that they cannot overlap with the elements of the IPV tort.

[383] The claimant, Lynda, must demonstrate the following elements on a balance of probabilities:

(a) The defendant committed wrongful or abusive conduct during the course of an intimate partner relationship and/or its aftermath;

(b) The defendant must have intentionally engaged in the abusive conduct, but not that the defendant subjectively intended to control their intimate partner;

(c) The plaintiff must show that the conduct amounts, on an objective basis, to coercive control. This is an objective test. As stated by the Supreme Court of Canada in Ahluwalia, at paras. 208:

The trial judge must determine whether a reasonable person, fully apprised of the relevant context of the relationship, would have perceived the defendant’s acts, considered cumulatively, as amounting to an assertion of control over the plaintiff that has the effect of depriving them of their dignity, autonomy, and equality in the relationship.

[384] The first prong of this three-part test has two components. First, the plaintiff must show wrongful or abusive conduct. The scope of misconduct captured is very broad and will depend on specific facts of the case. However, it includes the tortious conduct previously relied upon in the traditional domestic violence torts cases, including physical and sexual assault and battery, and the intentional infliction of emotional distress. This is in addition to any other misconduct that results in violating the vulnerable intimate partner’s dignity, autonomy and equality within the intimate partner relationship through coercive control, such as financial abuse and litigation abuse which were not previously captured under the traditional torts: Ahluwalia, at para. 8.

[385] Therefore, the claimant must establish the abusive or wrongful conduct occurred in the first place. Once established, the claimant must demonstrate that the abusive conduct occurred during the course of an intimate partnership and/or in its aftermath. With respect to the abusive conduct that was recognized under the traditional torts prior to Ahluwalia, this could include establishing physical and or sexual assault and battery, and the intentional infliction of emotional distress. This approach to liability is also prudent since if the abusive conduct falls short of constituting coercive control, then the trial judge must make findings in any event on the traditional tort claims. With respect to the expanded list of abusive conduct, the courts will have to develop the elements of those forms of abuse with the guidance provided by Ahluwalia.

[386] The non-exhaustive categories of abusive conduct capable of enabling coercive control are:

(a) Physical and sexual violence;

(b) Emotional and psychological abuse, including verbal abuse (and I would add, gaslighting behaviour[4]);

(c) Harassment, humiliation and denigration;

(d) Behaviour that isolates a parent from others, or that denies a partner access to educational, employment, and recreational opportunities;

(e) Litigation abuse; and

(f) Threatening conduct, including threatening harm to the children or to take them away, and threatening to commit suicide: Ahluwalia, at para. 207.

[387] The following factors are indicators of an intimate partner relationship:

(a) There must be a personal connection, some form of intimacy, and evidence of interdependence and attendant vulnerabilities that form over the course of the relationship: Ahluwalia, at para. 185. Intimacy is not restricted to sexual and physical intimacy, but can also, in my view, include psychological intimacy: John Doe v. Bennett, 2004 SCC 17, [2004] 1 SCR 436, at para. 29; Rich v. Bromley Estate, 2013 NLCA 24, 360 D.L.R. (4th) 51, at para. 135; and

(b) Duration of the relationship. This is a subjective factor that will be fact driven, but the relationship has to have been “long enough” to create an interdependency between the two intimate partners such that one partner has the ability to render the vulnerable partner subservient or submissive to his will.

[388] The claimant must also demonstrate, on a balance of probabilities, that the abusive partner intended to engage in the abusive conduct. However, the claimant need not demonstrate that the abusive partner “intended subjectively to exercise coercive control over them through the abuse, nor that the defendant intended to cause a specific type of harm”: Ahluwalia, para. 186.

[389] Second, the claimant must demonstrate that the respondent intentionally engaged in the abusive conduct. The claimant must prove that the respondent intended to perpetrate the abusive conduct itself, not that he subjectively intended to exercise coercive control through the abuse or that he intended to cause a specific type of harm (Ahluwalia, at para. 186).

[390] What distinguishes this new tort from the traditional personal injury torts often relied upon in domestic violence cases before Ahluwalia, is the element of coercive control and its concurrent capacity to capture conduct and harm not previously captured by tort law. This is the third element of the new tort.

[391] Coercive control is established when the “defendant’s conduct objectively constituted the impairment of the plaintiff’s capacity or willingness to meaningfully make or participate in fundamental decisions concerning the intimate partnership or other core aspects of their own life”: Ahluwalia, at para. 179. Furthermore, “the emphasis on coercive control centres the inquiry on the interference with autonomy, thereby excluding conduct that would not objectively give rise to such interference”: Ahluwalia, at para. 179. It focuses on the intimate partnership context that, in turn, enables the abusive partner to exert coercive control over the vulnerable intimate partner through abusive conduct.

[392] Examples of coercive and controlling conduct include:

…tactics of isolation; manipulation; surveillance; physical, psychological, sexual, and economic abuse; and intimidation that can control, isolate and entrap intimate partners; it is a ‘way to encompass and understand the use of a range of behaviours to control and restrict victims’: Ahluwalia, at para. 190.

[393] The Court, in Ahluwalia at para. 187, gave further examples of coercive and controlling conduct, including stalking, monitoring activities, financial control, threats to family members, making false allegations to the police or to employers; litigation abuse, and preventing the vulnerable partner from seeing family and friends, working, or participating in other educational or recreation activities.

[394] This coercive control renders the intimate partnership fundamentally unequal and results in harm to dignity, autonomy, and equality of the vulnerable intimate partner, alongside but distinct from the physical or psychological harm that can also be caused by the underlying abusive conduct.

[395] Coercive control by the abusive intimate partner, in turn, is enabled by abusive conduct to exert power and domination over the vulnerable intimate partner impairing her ability to make decisions either within the partnership or for herself while in the intimate partnership (or its immediate aftermath). This tortious conduct causes a violation of the vulnerable intimate partner’s dignity, autonomy, and equality within the intimate partner relationship. Again, this is a distinct wrong not addressed by any of the traditional torts.

[396] The Supreme Court stated that when the abusive conduct occurs within the context of an intimate partner relationship, the burden of proving that the conduct amounts to coercive control will be easily met “because a reasonable person would be likely to regard abusive conduct – even where it consists of a single act of violence – as incompatible with the dignity, autonomy, and equality inherent in an intimate partnership”: Ahluwalia, at paras. 188-89.

[397] In addition to the psychological, emotional and physical harms caused by the traditional domestic violence torts, the new tort provides corrective justice and compensation for the harms that flow from the tort to the violation of an intimate partner’s dignity, autonomy and equality. Accordingly, any compensatory damages awarded for the harms caused by the traditional torts must be enhanced to reflect the additional harm caused by the exertion of coercive control and the consequent violation to the abused partner’s dignity, autonomy and equality: Ahluwalia, at paras. 222, 239. This is an emerging area of tort law within the context of family (and possibly civil) proceedings and will be developed by the developing jurisprudence[5].

[398] Joe does not allege that Lynda engaged in the tort of IPV against him.

Element One: Did Joe Commit Wrongful or Abusive Conduct against Lynda during the course of an Intimate Partnership or in its Aftermath

Course of an Intimate Partnership or its Aftermath

[399] There is no doubt that the alleged wrongful or abusive conduct, if it occurred, occurred during the course of an intimate partnership, and continued in its immediate aftermath beyond the date of separation, particularly in 2021.

[400] The vast majority of the abusive conduct was alleged to occur throughout the lengthy 54 year marriage when the parties lived together. There was an economic interdependency throughout the marriage. There was also sexual intimacy in the course of the marriage. Inevitably, there was also an emotional and psychological interdependency during the marriage. The marriage was a traditional one insofar as Lynda took on the primary caregiving and household responsibilities while Joe was the primary income earner, developing and growing his business. In this general context, Lynda contributed to the development of Joe’s business, and also in the earlier part of the marriage to the income of the household through external employment, and Joe contributed to raising the children. Joe and Lynda were also married spouses within the meaning of the FLA and the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) and were engaged in a conjugal relationship until the date of separation.

Abusive and Wrongful Conduct

[401] The Supreme Court did not provide much guidance in Ahluwalia as to how the court should approach the abusive and wrongful conduct component of the first element of the IPV tort test. This can be particularly challenging where some of the abusive conduct overlaps with traditional tortious conduct. It is important because the quantum of damages will be informed, in part, by the severity, frequency, and consequences of the abusive conduct. While the general non-pecuniary damages will ultimately be a global award, capturing all of the relevant factors for assessing damages, it is still important to pay attention to the various forms of abusive conduct as the two can have different consequences.

[402] I will, therefore, embark on a review of the traditional torts under the first element of the tort of IPV to determine whether there is abusive and/or wrongful conduct as the Supreme Court recognized that there may be abusive conduct within the IPV context that will overlap with the traditional torts. There is no suggestion, for example, that physical abuse will have different constituent elements in the traditional tort of assault and battery from physical abuse within the context of the tort of IPV: see, for example, Ahluwalia, at para. 16. However, there is a difference with respect to the tort of intentional infliction of emotional distress (“IIED”) which requires proof of a visible and provable illness as an element of that tort. Nonetheless, the type of conduct typically captured by IIED provides guidance as to the type of verbal and psychologically driven conduct that will be captured by the tort of IPV, as I will expand upon under the latter analysis. The Supreme Court, inter alia, also instructed that there will be additional forms of abusive conduct under the general framework constituting coercive control that would not otherwise be captured by traditional torts, such as financial abuse and litigation abuse.

[403] This approach also makes sense, in my view, since I will have to embark on a compensatory damages analysis under the traditional torts first, as that assessment will inform the compensatory damages under the broader scope of damages under the tort of IPV, mindful of the Supreme Court’s direction that, “in law” damages for IPV will be higher than they would otherwise be assessed under the overlapping traditional personal injury torts: Ahluwalia, at para. 56. As stated at para. 17, the claim by intimate partners is “I am not just a bruised spouse, I am an unfree spouse”.

[404] In addition to the traditional torts of physical assault and battery, and the intentional infliction of emotional distress, Lynda also asserts litigation abuse and financial abuse as abusive and wrongful conduct under the rubric of the tort of intimate partner violence. She defines litigation abuse as: intentionally causing spurious delays, unnecessary steps resulting in increased cost, and using the court to harass and demean her. She defines financial abuse as financial control by Joe over the finances without providing meaningful decision making power over those finances to her.

The Traditional Tort Claims

Battery

[405] The tort of battery is distinct from the tort of assault, and requires, as an element of the tort, intentional, nonconsensual, physical force applied by the alleged tortfeasor to the victim of more than a trivial nature or the bringing about of harmful or offensive contact. In Barker v. Barker, 2022 ONCA 567, 162 O.R. (3d) 337, at paras. 138, the Court of Appeal distinguished the two torts as follows:

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

See also, Barreto, at paras. 256-60.

[406] Of course, the burden of proof is on the claimant, in this case Lynda, to prove the abusive conduct in the form of the tort of battery was committed by Joe on a balance of probabilities.

[407] As stated, I favour Lynda’s evidence, as well as that of the children’s, over that of Joe’s.

[408] Joe battered Lynda on many occasions throughout the marriage. The worse physical violence occurred in the early years of the marriage and in the latter years of the marriage. It did not cease during the middle years, however.

[409] The battery consisted of Joe repeatedly punching, hitting and slapping Lynda over the course of the marriage. He hit her with a “billy” stick from time to time. He threw objects at her, sometimes hitting her. He aggressively twisted her arms behind her to force her on to the ground. He choked her on occasion, with one notable incident when Lynda thought she was going to die. There were three particularly physically violent batteries. On two occasions Lynda was struck with a hatchet or a hammer by Joe causing physical trauma. She sustained a serious laceration to the middle of her hand requiring stitches and a head wound requiring stitches. These injuries are confirmed by hospital records dated June 2015 and March 2016. On the third occasion, some of her front teeth were broken when Joe hit her on the mouth with a glass ketchup bottle.

[410] The batteries were prolonged, persistent and repeated over the course of the 54 year marriage.

[411] Joe is liable to Lynda for committing physical battery.

[412] This form of tortious conduct obviously meets the element of “abusive conduct” within an intimate partner relationship under the first part of the test for the tort of IPV as well.

Assault

[413] As stated above, the torts of assault and battery are conceptually distinct. They are both intentional torts for which damage is presumed as they both protect the bodily/physical integrity and autonomy of the person. However, assault does not include an element of physical force or contact. Rather, it requires that the alleged perpetrator intentionally create the apprehension of imminent harmful or offensive contact: Barker, at para. 170, citing the Hon. Allen M. Linden, et al; Canadian Tort Law 10^th ed. (Toronto: LexisNexis 2015) at [s.] 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 thought that contact never actually occurs.

[414] The courts will often see the civil torts of “assault and battery” pleaded as one tort. While this is conceptually incorrect, it is a common occurrence that the battery has been followed in swift succession by an assault. However, the reverse is not always true. These concepts should not be conflated with the Criminal Code definitions. As stated, they are common law torts. That said, the criminal law jurisprudence that has developed is often instructive.

[415] In this case, Lynda constantly feared that she was going to be hit or struck in some way by Joe, often, but not always, resulting in battery in rapid succession.

[416] However, Lynda also constantly feared that she was going to be the subject of gun violence, with Joe’s refrain of having the “10 cent” or “25 cent” solution for her meaning bullets – and more directly, that he was going to put a bullet in her head. There was his other oft used refrain of words to the effect of “it’s time for a tune up” telegraphing his intention to beat her if she did not get into line – his line. The children all heard these refrains and had no confusion about their respective meanings, including the threat of gun violence and other physical force, throughout the marriage.

[417] And, of course, Joe had the means to deliver on the threat of gun violence. His house was a veritable gun storage facility, with assault rifles, handguns, and even machine guns, amongst other varieties of firearms. He knew how to use these guns – he was a marksman, trained military police for a while, and won awards for his marksmanship.

[418] He was convicted of uttering a threat and of assault as he made an imminent threat of physical force to Lynda, after the date of separation, in February 2021.

[419] Joe is liable to Lynda for the separate tort of assault.

[420] The misconduct captured by these assaults also constitute “abusive conduct” as one of the elements for the tort of IPV.

Intentional Infliction of Emotional Distress

[421] The tort of intentional infliction of emotional distress (sometimes referred to as the intentional infliction of mental suffering in jurisprudence) has three elements:

(a) The perpetrator’s conduct was flagrant and outrageous;

(b) The impugned conduct was calculated to harm; and

(c) The conduct caused the victim to suffer a visible and provable illness: Prinzo v. Baycrest Centre for Geriatric Care 2002 CanLII 45005 (ON CA), [2002] 60 O.R. (3d) 474 (Ont. C.A.), at para. 48; Barreto, at para. 169.

[422] Unlike the torts of assault and battery, damage does not flow from the wrongful conduct – an element of this tort is proof of causation of visible and provable illness.

[423] Notably, the requirement of “visible and provable illness” no longer requires a formal medical or psychiatric diagnosed ailment or disorder, nor is expert evidence required. The illness must, instead, be “serious and prolonged and rise above the ordinary annoyances, anxieties and fears” that people living in society routinely, if sometimes reluctantly, accept: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 37; Barreto at para. 170; Ahluwalia, at para. 114.

[424] With respect to establishing intent, the Court of Appeal stated in Piresferreira v. Ayotte, 2010 ONCA 384, 319 D.L.R. (4th) 665, at para. 78 that the “extent of the harm need not be anticipated, but the kind of harm must have been intended or known to be substantially certain to follow.”

[425] Verbal abuse, threats, degrading insults, and harassment, and forcibly entering a former spouse’s home post-separation can satisfy the conduct aspect of the intentional infliction of emotional distress: Constantini v. Constantini, 2013 ONSC 1626, 28 R.F.L. (7th) 356.

[426] Joe used language as a tool to denigrate, belittle, humiliate, isolate, and instil fear in Lynda throughout the marriage in order to control her. The extremity and volatility of his verbal abuse ramped up in 2020, as demonstrated in part by the audio recordings and his own voicemail messages left in and around 2021. His language directed at Lynda included calling her a cunt, slut, bitch, stupid, fat, retard, whore, and douche bag. He called the women in a choir that Lynda had started to attend “three-time losers” and “femin-Nazi’s” with the effect that Lynda quit the choir.

[427] Joe used this language throughout the marriage on a continuous basis to keep Lynda literally under his thumb.

[428] I have already addressed the many threats made by Joe towards Lynda which implicitly involved the threat of gun violence and physical beatings whenever Lynda, in his view, crossed his line.

[429] In my view, Joe’s beatings of Joseph Jr., and physical aggression towards Coleen and, later, Kathleen, was also a pattern of conduct that was aimed at, and succeeded in, keeping Lynda in a subservient role in this marriage.

[430] The conduct was flagrant, outrageous, and unrelenting. It was done in front of the children without any regard to the stomach wrenching effect on them, or the effect that would have, in turn, on Lynda who tried to protect her children. It occurred during their married life together, and the verbal abuse and threats continued post-separation.

[431] Joe’s conduct was calculated to cause Lynda harm. It is obvious that using such repeated language against one’s intimate partner, on an unrelenting basis, often in front of the children, would have the effect of damaging, if not decimating, the intimate partner’s sense of self, self esteem, worthiness, and at its extreme the will to survive. There would be no other purpose for uttering such foul and derogatory language in a rage which sometimes lead to physical violence, much less a benign purpose. Joe intended to keep Lynda in place. He knew that his language would have these consequences, or at minimum, knew that the consequences were substantially certain to follow: Prinzo, at para. 45.

[432] In this case the relentless verbal abuse, including threats and degrading insults, caused Lynda to suffer from low self esteem, self-worthlessness, and ultimately, depression and insomnia as testified by the participant experts, whose opinion evidence I accept, and based on Lynda’s own evidence of her sleep disorder, feelings of worthlessness and no self esteem which on its own satisfies this element of the test.

[433] Joe is liable to Lynda under the tort of the intentional infliction of emotional distress.

[434] This tortious conduct also constitutes “abusive conduct” under the tort of intimate partner violence.

[435] I also find that Joe engaged in abusive conduct, in the form of physical violence, threats, and verbal and psychological abuse, overlapping with the above traditional torts in the course of an intimate partner relationship against Lynda, and thus Lynda has demonstrated on a balance of probabilities that the first element of the tort of IPV has been established.

Litigation Abuse and Financial Control

[436] Lynda asserts litigation abuse as one of the forms of abusive conduct Joe used to exercise coercive control over her post-separation. She submits that the consequences of the litigation abuse were to cause delays and increase costs with unnecessary steps. Furthermore, she claims Joe used the court process to further harass and demean her.

[437] She relies on the admissions contained in the Agreed Statement of Facts which outline all of the procedural steps from 2022. There is no doubt that Joe breached court orders requiring full disclosure, and was the subject of further disclosure orders. Furthermore, Joe did not pay spousal support until he was ordered to, and then promptly went into arrears for a time. Cost awards were made in favour of Lynda with respect to motions that she was forced to bring.

[438] Understandably, the issue of litigation abuse was not a focus of the trial. Accordingly, I have little evidence on this issue. I also have limited submissions on this issue.

[439] Furthermore, the scope of litigation abuse is in its infancy. In Ahluwalia, the Supreme court mentions litigation abuse as being capable of being coercive and controlling conduct: at para. 187. In Ahluwalia, at para. 194, litigation abuse is defined as “where intimate partners utilize the legal system as a tool ‘to coerce, control, harass, undermine and dominate” their intimate partners’ as a “well-documented tactic frequently employed by abusers to control survivors.”

[440] In the circumstances, I find that any abuse of the litigation process can be adequately addressed by way of costs, and in the case of pretrial motions, has already been addressed by way of cost awards.

[441] I decline to find that the litigation abuse asserted constitutes abusive conduct which enabled Joe’s coercive and controlling behaviour over Lynda, within the meaning of the tort of IPV, and nor is it necessary to find that this conduct constitutes abusive conduct in this case, given my overall findings. In short, I am not satisfied that, as stated in Ahluwalia at para. 7, the litigation abuse asserted was part of coercive control which “controlled” or “entrapped” Lynda either during the marriage or post-separation. This issue is best left for another day on a better evidentiary record and more fulsome submissions.

[442] Joe controlled the family’s main finances even if Lynda had technical access to their funds. She would not touch the finances without Joe’s permission, knowing that if she took any funds whether or not for legitimate purposes, Joe would become enraged and accuse her of stealing – as he did at the trial.

[443] I find that Joe engaged in abusive conduct in the form of financial abuse in a manner that constitutes coercive and controlling behaviour over Lynda and to keep her subservient to him in the marriage.

Element Two: Did Joe intentionally engage in the abusive conduct?

[444] Joe intentionally engaged in the abusive conduct as described above. He intended to hit, slap, punch, strike and choke Lynda, threaten her with imminent physical and gun violence, verbally abused and humiliated her, and constantly instilled fear in her for her own safety and protection, and that of her children during the marriage: Ahluwalia, at para. 207.

[445] There is no suggestion in the evidence that any of the abusive conduct was accidental, trivial or fleeting. Rather, Joe’s defence was centred on bald denials along with his rationalizations for why he would not have done these things. Some of the rationalizations fall into the myths and stereotypes accompanying intimate partner violence as articulated by the Supreme Court in Ahluwalia at para. 225 relating to implied consent, marital harmony and wives’ alleged propensity to fabricate.

[446] Accordingly, for the reasons already stated, I find that Lynda has demonstrated that Joe intentionally engaged in the abusive conduct.

Element Three: Has Lynda demonstrated that the abusive conduct was, on an objective measure, coercive control?

[447] As stated, Ahluwalia, at para. 197, defined the objective test to be used in assessing whether Lynda has discharged her burden of proof (on a balance of probabilities) as follows:

[T]he question is whether a reasonable person, fully aware of the relevant context of the relationship, would have perceived the conduct as coercive control. For example, the victim’s known vulnerability to the defendant will influence how a reasonable person perceives the impugned conduct…the burden will ordinally be readily met by the plaintiff, since a reasonable person would perceive abusive conduct to be fundamentally incompatible with an intimate partnership.

This is an objective test informed by the specific circumstances of the case.

[448] Coercive control, in the context of this tort, is conduct that objectively results in the domination and control by one intimate partner of the other (vulnerable) intimate partner. It focusses on the intimate partnership context that enables the abuser to exert control over their partner in such a way as to undermine the vulnerable intimate partner’s autonomy both over herself and within the partnership. This coercive control renders the partnership unequal and results in harm to dignity alongside, but distinct from, the physical and psychological harms that can be caused by the abusive conduct.

[449] Coercive control is achieved through tactics such as isolation; manipulation; humiliation; surveillance; physical, psychological, sexual, and economic abuse; and intimidation that can control, isolate, and entrap intimate partners thus controlling the life and decisions of the controlled partner in such as way as to exert dominance over that partner: Ahluwalia at para. 190.

[450] Coercive conduct can also take the forms captured by existing torts such as battery, assault and IIED. When abusive conduct occurs in an intimate partner relationship, “it violates the trust that should be present in an intimate partner relationship and is generally part of a pattern of abuse that is aimed at subordinating and controlling the victim” (Ahluwalia, para. 187). However, a single act of abuse may be sufficient to satisfy the elements of this tort, where that act has the effect of subjugating the vulnerable partner to the will of the dominant, controlling, partner.

[451] Again, I have no hesitation in finding that, on an objective measure, Joe engaged in a years’ long pattern of exercising coercive control over Lynda within the intimate partnership by using many tactics including: isolation (Lynda was discouraged from engaging in social activities without Joe, and never saw her family or her childhood friends), threats further isolating Lynda (including a threat to kill her mother if the police were ever called); humiliation and psychological abuse (through the use of verbally abusive language as described, both in the presence of the children, and when they were alone); intimidation (through the constant threats of violence such through the promise of a “tune up” and gun violence through the “10 or 25 cent solution”), physical abuse (including the physical aggression, beatings, hitting with or throwing objects, chokings, punching, slapping, and arm twisting), and stalking (in the aftermath of the separation, by following her to the various homes of the children, and on the street near those homes). The main effect of this pattern of coercive control was to keep Lynda at home as she feared that danger would come to her, and the children, if she left home, and because, quite simply, leaving the marital home was not an option. Joe also controlled the main finances in a way to keep her subservient to him within the marriage. While Lynda had access to funds during the marriage, she dare not spend them on anything not approved by Joe.

[452] Lynda testified that she believed that Joe’s threats were intended to instil fear in her, and they did. She knew that Joe would deliver on his threats of physical harm, because she had already suffered beatings and other forms of physical abuse and aggressive behaviour. She testified that the reason she continued trying to help Joe with paperwork and other domestic tasks after the separation was because she feared what may happen to her, or the children, if she did not. She pointed to the fact that Joe had threatened to attend at Kathleen’s house after she temporarily moved in and destroy Kathleen’s computers. She also pointed to the fact that Joe kept showing up, unannounced, and uninvited, to Kathleen’s house demanding to see Lynda, despite being told not to. He paid no attention to the wishes of others.

[453] In sum, I find that Lynda has proven, on a balance of probabilities, that:

(a) Joe committed abusive and wrongful conduct against Lynda that occurred both during the course of their intimate partnership and in its aftermath until Joe was criminally charged with assault and uttering threats and a no contact order as a term of his release was imposed;

(b) Joe intentionally engaged in the abusive conduct; and

(c) Joe’s abusive and wrongful conduct constituted, on an objective measure, coercive control. A reasonable person, fully apprised of the relevant context of their relationship, would have perceived Joe’s acts as amounting to an assertion of control over Lynda that had the effect of depriving her of her dignity, autonomy, and equality in the intimate partner relationship.

[454] As such, on an objective measure, the impact of Joe’s coercive control over Lynda was to break down her will, manifested through a diminished power to have decided important matters in her own life or to meaningfully take part in decisions that affect their intimate partnership over the course of their lengthy marriage, right from the outset and the first beating, to the imposition of the no contact order in the criminal proceeding.

General Non-Pecuniary Compensatory Damages

General Compensatory Damages under the Traditional Torts

[455] As stated, I will first assess the compensatory damages under the alternative traditional torts, as they will inform the quantum of compensatory damages under the tort of IPV.

[456] At the outset of trial, Lynda sought the following damages arising from the traditional torts:

(a) $250,000 as general nonpecuniary damages;

(b) $100,000 as aggravated damages;

(c) $100,000 as punitive damages.

[457] Lynda did not seek any pecuniary damages, including loss of income (past or future), treatment costs, or loss of economic opportunity.

The Evidence - Damages

Lynda’s Testimony

[458] Lynda described her childhood before marrying Joe, and the impacts of the various forms of abusive conduct.

[459] Prior to meeting Joe, Lynda described having a normal childhood. She did not suffer any abuse or any mental or emotional health issues. Her marks were good, she was athletic, and she worked a part time job during high school.

[460] Lynda’s life changed when she married Joe, without telling her parents, and moved in with him. Her father was dying at the time, and she was ostracized from her parents and family because she could not get out to see her father. This was because she had no travel means, she was working, and she lived too far away from her family.

[461] While she had friends at high school, she had no social life once she married Joe. Joe prevented her from seeing her friends. On one occasion, he refused to let her attend her girlfriend’s wedding. On another occasion, she found out later that some of her childhood friends had been trying to find her and sent a letter to her which Joe intercepted and did not pass along. The only friends she had were Joe’s friends. That said, she did not have a social life of her own, and her social life with Joe was very limited.

[462] She suffered some brief pain from punches and slaps and sometimes bruises, lacerations, black eyes, swollen lips, and much humiliation and embarrassment at being treated in this manner by her husband. She suffered broken teeth from one battery, and stitches to her hand and head from two other incidents of physical violence.

[463] Lynda testified that she suffers from anxiety and stress as a result of Joe’s abuse.

[464] She has difficulty sleeping at night. This difficulty started at least two years before separation and has become worse since. The problem now is that she wakes up at the slightest noise, fearful Joe has found her. She gets up and searches the house for any sign of an intruder.

[465] She is also hypervigilant constantly on the look out for Joe. Whenever she sees a bald man in public, she is frightened it may be him. This is in part because Joe has made a habit of finding her post-separation or telling her that he knows where she is or that he will find her.

[466] She testified that she has high blood pressure which she believes is caused by the stress and anxiety. Lately, she has been fainting which she believes is related to her heart issues.

[467] Furthermore, she testified she has chronic shoulder pain and difficulty moving her shoulders, including repeatedly torn rotator cuffs. She ascribes her shoulder pain to the many times Joe would twist her arms and shoulders hard.

[468] On the incident of choking, Joe was so aggressive that she was convinced that he was going to kill her while she was pinned to the ground. She feared for her life on this occasion and believed she was going to die.

[469] Lynda lived in fear for her own safety and that of her children during the entire marriage.

[470] Lynda continues to be fearful of Joe. She no longer lives with any of the children because of Joe’s threats not only towards her, but towards them. She has found a new place to live but has not disclosed the address to Joe or the children as she fears he will find her.

[471] Lynda testified that she keeps reliving the past trauma she has suffered at Joe’s hands. She feels the trauma is ongoing and lives in a constant state of fear.

[472] Lynda testified that she will never be in a romantic relationship again. She cannot take a chance that she will meet another “bad” man, and she is 79 years old now. Her sexual autonomy has thus been impaired in this respect.

[473] She testified that her self-esteem has been destroyed due to Joe’s verbal abuse, including his derogatory, belittling, and denigrating language. Lynda feels that everything she has done in her life is useless because Joe repeatedly told her she is useless, and she has come to believe and internalize all he said to her.

[474] Under cross-examination, she agreed that she has never seen a psychiatrist. After Joe’s arrest, she saw a therapist from Victims Services, and recently she has been seeing a therapist more regularly.

[475] She stated that she has no psychiatric diagnosis, to the best of her knowledge.

[476] Lynda is seeking treatment for her physical and psychological ailments. She sees a naturopath, Dr. Choi, for treatment of the stress related issues and to help with her heart issues. She is taking natural supplements which she favours over medication which she tried previously but had bad side effects. She prefers naturopathy over medical treatment.

[477] She also sees her general practitioner, Dr. Shepherd, who provided her with pharmaceutical treatment in the past, provided some counselling, and made referrals for her shoulder pain.

[478] Various of the children confirmed that they have witnessed bruises and skin tears/lacerations on their mother from time to time during childhood. Joseph Jr., Coleen, and Kathleen and have also witnessed her overall health deteriorate rapidly recently, and noticed she has become more withdrawn since separation.

[479] Sean saw Joe grab his mother with both hands from time to time. Coleen testified that her father put an incredible amount of stress on her mother, and that her mother was protecting the children. Kathleen saw her mother with injuries throughout the marriage. On one occasion in the summer of 2018 or 2019, she saw bruising on her mother’s arms and face; however, when she asked what happened, her mother did not reply.

[480] Katheleen has severed ties with her father but speaks regularly with her mother. She has observed that Lynda’s health has suffered, and she is deteriorating and aging more rapidly than she should be. She characterized her father’s treatment of her mother as torture, and her mother has been displaced as a result of that treatment.

[481] As stated, the two Lakeridge emergency department records confirm that Lynda has received treatment twice for stitches, once on her hand and once on her head.

Participant Experts

Dr. Susan Shepherd

[482] Dr. Shepherd completed her medial degree in 1997 at the University of Toronto. She completed a residency in family medicine and has been certified since June 1999 in this field.

[483] Lynda has been her patient since 2002.

[484] She was qualified to give opinion evidence in the field of family medicine, as a participant expert, and was aware that she could only provide opinion evidence such as diagnosis and causation where those opinions were formed in the course of her treatment of Lynda.

[485] During her course of treatment, Dr. Shepherd diagnosed Lynda with major depression disorder in 2004, high cholesterol in 2004, and hypertension in 2020. Lynda has seen her doctor for multiple visits for chronic back pain and shoulder pain over the years.

[486] Lynda disclosed Joe’s abuse in 2004 during her second visit to Dr. Shepherd. Lynda reported at that time that she suffered a history of physical abuse, and that she had sleep and mood issues.[6]

[487] Dr. Shepherd administered a depression questionnaire and based on that clinical test, and her own clinical assessment, she determined that Lynda met the criteria for major depressive disorder. The constituent symptoms Lynda suffers from that led to this diagnosis are an inability to enjoy things, insomnia, and fatigue over a long period of time. She prescribed Lynda with an anti-depressant, Sertraline. There were four follow up visits, and the Lynda and Dr. Shepherd decided to stop this medication, because of the side effects Lynda was experiencing. Dr. Shepherd prescribed a different anti-depressant on a trial basis. However, Lynda again experienced side effects so ultimately, she stopped prescribing them as well.

[488] During the course of treatment, Dr. Shepherd formed the opinion that the cause of her stress and depression was Lynda’s chronic fear of Joe. She described the “fight, flight, freeze” response to fear. Lynda adapted to the freeze response in the face of her fear of Joe for most of her married life, before fleeing.

[489] In 2002, Lynda first complained of pain to her right shoulder. An X-ray was ordered.

[490] In 2004, Lynda again complained of significant shoulder pain in her right shoulder. Imaging showed that she had a tear in her shoulder cuff. At the time, Lynda reported that she had fallen and grabbed on to something to steady herself.

[491] In 2023, Lynda reported significant pain to her right shoulder which she attributed to packing and moving. Again, imaging confirmed that she had suffered a tear. She also reported similar pain to her left shoulder. However, it also revealed that Lynda suffered from chronic rotator cuff problems. Dr. Shepherd referred Lynda to an orthopedic surgeon, Dr. Rollins.

[492] Dr. Shepherd confirmed under cross-examination that Lynda did not specifically attribute the shoulder pain to abuse by Joe. However, Lynda reported a history of physical abuse by Joe which was long standing and over decades.

[493] Dr. Shepherd agreed that hypertension and depression “can be” multifactorial, so it is “possible” that there are other causes, aside from stress emanating from Joe’s abusive conduct. However, Dr. Shepherd added that the history of abuse and fear is definitely a cause of Lynda’s hypertension and depression, and furthermore, Dr. Shepherd was not aware of any other stressors in Lynda’s life that would have contributed to those conditions.

[494] Dr. Shepherd’s recommended treatment was therapy. She confirmed she is aware that Lynda attended therapy through the victim impact program when Joe was criminally charged.

Dr. Mary Choi

[495] Dr. Choi is qualified as a naturopathic doctor. She has a health science degree and completed a four-year program at a naturopathic school. She has been practicing for 18 years.

[496] As a naturopathic doctor, Dr. Choi is qualified to make medical diagnoses. She explained that as part of her training, she took courses in psychology and counselling. She has experience in cognitive therapy. She is trained like all other medial practitioners and governed under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.

[497] Dr. Choi was qualified to give expert opinion evidence in the field of naturopathic medicine as a participant expert. Dr. Choi was also aware that she could only provide opinion evidence if that opinion was developed over the course of when she treated Lynda, and not after the fact.

[498] Lynda has been her patient since 2021. Her most recent session with Lynda, prior to trial, was in August 2025.

[499] Lynda’s daughter, who is also a patient, referred Lynda to Dr. Choi. Lynda wanted to avoid pharmaceuticals and was exploring naturopathic options instead.

[500] As part of her course of treatment, Dr. Choi conducted physical examinations on Lynda, including monitoring and measuring her blood pressure.

[501] The main issues Dr. Choi is treating Lynda for are insomnia, dizziness and vertigo, and hypertension with climbing blood pressure.

[502] Dr. Choi diagnosed Lynda with uncontrolled hypertension and elevated blood pressure, chronic insomnia, difficulty sleeping, elevated cholesterol, and thyroid issues with chronic ruminations, worries and sleep difficulties.

[503] Her clinical assessment developed during the course of treatment is that Lynda suffers from grief, stress, hypertension, and trauma caused by marital abuse at the hands of Joe. In her view, Lynda stayed in the abusive relationship for protection of her children. This is a response consistent with Dr. Choi’s experience regarding spouses who stay in abusive marriages for multiple years.

[504] Dr. Choi described Lynda as a high functioning woman who survived many years in an abusive household.

[505] Dr. Choi’s treatment for the sleep issues was to improve Lynda’s nutrition and give her natural treatments to calm and regulate her nerves which has helped improved her sleep somewhat. However, when a person suffers chronic stress, sleep will inevitably be negatively impacted. Her opinion, formed during the course of treatment, is that the chronic stress Lynda has experienced was caused by Joe’s abuse, and this, in turn, caused her insomnia. Furthermore, Lynda’s high anxiety and cholesterol are also caused by the stress which, in turn, was caused by Joe’s abusive conduct over the years.

[506] Under cross-examination, Dr. Choi confirmed that Lynda disclosed a history of marital abuse and physical abuse at Joe’s hands. She recommended therapy, but Lynda declined. Dr. Choi added that her understanding of why Lynda declined was that she had been living in fear for many years and continues to fear disclosing the abuse to others. Dr. Choi stated that Lynda did not want her to testify because of a fear that Joe would harm Dr. Choi.

[507] The expert evidence of Dr. Shepherd and Dr. Choi was largely consistent with their clinical notes, records and reports to the extent referenced during their respective testimony. They were both forthcoming in their evidence and did not venture beyond their area of expertise as participant expert witnesses. They were not shaken on cross-examination.

[508] No expert evidence was led by Joe.

[509] I accept the expert evidence of Dr. Shepherd and Dr. Choi with respect to their opinions on diagnosis, medical and psychological conditions, causation, and prognosis formed during the course of treatment, as well as their fact evidence regarding their clinical observations and treatment with respect to Lynda.

Damages Analysis

[510] I will first undertake a damages analysis under the alterative traditional torts, in part, because it will necessarily inform the quantum of compensatory damages for the tort of IPV. This is because the Supreme Court, in Ahluwalia, made it clear that whatever award of compensatory damages is warranted under the consequential harms caused by the traditional torts (in which there is overlapping abusive conduct with the tort of IPV), the award must necessarily be higher in assessing compensatory damages under the tort of IPV because the new tort reflects a distinct wrong and harm not compensated under the traditional torts.

[511] As indicated, Joe was convicted of two serious offences under the Criminal Code as well as breach of his release order, also contrary to the Criminal Code, that are prescribed crimes under the Victims’ Bill of Rights, 1995, S.O. 1995, c. 6. Accordingly, as these offences were under the Criminal Code, this statute applies to my assessment of damages.

[512] Pursuant to s. 3(1) of the Victims’ Bill of Rights,

A person convicted of a prescribed crime is liable in damages to every victim of the crime for emotional distress, and bodily harm resulting from the distress, arising from the commission of the crime.

[513] This statute also creates a rebuttable presumption of harm in the form of mental distress where, as in this case, the victim of an assault is or was a spouse of the offender within the meaning outlined in s. 29 of the FLA.

[514] The Victims’ Bill of Rights (“VBOR”) at s. 4(3) further provides that the court shall not take a sentence into account in assessing damages, with the exception of punitive damages: VBOR, at s. 4(4). However, notwithstanding the conviction and imposition of a sentence, the court retains discretion to award punitive damages if warranted under the general common law principles underlying punitive damages.

[515] Furthermore, pursuant to s. 4(6) of VBOR, a judge who orders costs in favour of a victim, “shall make the order on a solicitor and client basis, unless the judge considers that to do so would not be in the interests of justice.”

[516] As stated earlier, there is no potential for overlapping or double recovery as between the family law statutory entitlements and Lynda’s claim for compensatory damages in the form of non-pecuniary pain and suffering, aggravated damages, or punitive damages.

[517] The awards for typical general and aggravated damages for pain and suffering under the traditional torts committed in a domestic violence situation between 2023 and 2025, prior to the release of Ahluwalia, ranged from $100,000 to $200,000 in Ontario. Of course, the abusive conduct and proven harms varied in each of those cases influencing the assessment of damages.[7]

[518] As noted by the Supreme Court of Canada, in Ahluwalia, historically abusive spouses appear to receive a “spousal discount” for damages when comparing damage awards for analogous tortious conduct in non-domestic or non-spousal relationships. This is wrong. Furthermore, the above referenced more recent awards did not provide redress for the interference with the victim intimate partner’s dignity, autonomy, and equality. Therefore, in my view, the earlier awards are not a good measure of future damage awards for the tort of IPV as they are too low. That said, they provide some guidance with respect to the awards under the traditional tort claims committed within a domestic relationship.

[519] However, if the claimant seeks to prove consequential harms, such as those that may be caused by assault and battery, and in order to quantify the damages to provide compensation beyond a potentially nominal amount and commensurate with the harms, the claimant must still provide proof of those consequential harms and establish causation: Barreto, at paras. 354-58.

[520] In order to establish causation for damages purposes, the court must determine the extent of the harm that was caused by the tortious conduct: M.B., at para. 31; Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, at para. 78. As part of this exercise, the plaintiff’s original position needs to be considered, as may the principles of “thin skull” and “crumbling skull” and “measurable risk” (M.B. v 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, 109 O.R. (3d) 351, at paras.35, 36).

[521] Finally, expert evidence is not always needed to establish mental injury: Saadati v Moorehead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 38.

Compensatory Damages under the Traditional Torts

[522] As stated, Lynda seeks general, aggravated and punitive damages in the sum of $450,000 arising from the abusive conduct under the traditional torts.

[523] I am satisfied that there were no significant pre-existing events or harms that Lynda experienced prior to her marriage to Joe. There is no history of mental illness, psychological disorders, medical ailments, and no history of abuse, mistreatment, or personal injury related accidents. Accordingly, there is no predisposing factors or independent causes of, or contributory causes to, the harms and injuries that Lynda claims were caused by Joe’s abusive conduct arising from the torts of physical assault and battery, and the intentional infliction of emotional distress.

[524] As I stated in Barreto, at para. 432, the function of compensatory damages in assault and battery claims is threefold,

(a) To provide solace for the victim’s pain and suffering and loss of enjoyment and 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, as aggravating factors.

[525] I further stated in Barreto, at para. 433, that the factors to be considered in determining the appropriate quantum of non-pecuniary damage awards arising from assault and battery 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.

[526] Aggravated 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.

[527] I am satisfied that Lynda suffers many physical and psychological harms that are caused by Joe’s decades long abusive conduct. Some of the harms were temporary and others are chronic and long-standing. She suffers and continues to suffer from serious psychological conditions, notably severe depression, which are likely to be life long.

[528] An upper end compensatory award is warranted when taking into account all of the relevant factors:

(a) The abuse was frequent and over a very long period of time – 54 years;

(b) The abuse was serious and varied in nature – beatings, choking, punches, slaps, arm twisting and being struck with objects that resulted in broken teeth, stitches to her hand, stitches to her head, lacerations, black eyes, and chronic injuries to her shoulder cuff. Also, the constant barrage of verbal abuse and belittling, degrading language persisted through the marriage and in its aftermath, and the assaults and threats of further batteries to her if she did not do as he said, and threatened gun violence in a house full of guns, were other forms of violence Lynda suffered.

(c) Joe was in a position of power over Lynda. He was physically stronger than she was, and had ready access to guns in the house, and was a marksman;

(d) Joe was in a position of trust with Lynda as her intimate partner.

[529] Finally, the consequences Lynda suffered are serious. She suffered physical disfiguration from the broken teeth (even though they were eventually capped) and stitches to her hands and head. She suffers chronic pain for the repetitive tearing of the rotator cuffs. Whether or not she somewhat aggravated those injuries in moving objects, the evidence is clear that her shoulder cuff and ligament tears were long standing and pre-date the moving and packing Lynda reported in 2023 to Dr. Shepherd. Dr. Shepherd confirmed that the right shoulder injury went back to at least 2004 as confirmed by imaging she ordered. Lynda also suffered temporary pain during the course of the physical altercations.

[530] In addition, she suffered and continues to suffer from emotional and psychological disturbances and disorders as a result of Joe’s abusive conduct. I find that Joe’s abusive conduct caused the following disorders and emotional harms:

(a) Ongoing fear of Joe, and a life of fear with Joe;

(b) Major Depressive Disorder;

(c) Trauma;

(d) Sleep difficulties, including insomnia;

(e) Hypervigilance;

(f) Social isolation;

(g) Low self esteem;

(h) Feelings of worthlessness and despair;

(i) Hypertension;

(j) Fatigue;

(k) Grief over the sad and wasted life she believes she has led; and

(l) Chronic ruminations.

[531] Under the traditional torts, the aggravating factors in this case are the betrayal of trust by Joe, and the humiliating and undignified manner in which he perpetrated the tortious conduct against her in private and in front of her children.

[532] I have considered the jurisprudence developed in Ontario to date arising from personal injury tort cases from domestic violence. In my view, the harms and abusive conduct here, for the reasons stated, warrant a higher award than has been awarded to date. This award will also reflect the reality that society and the courts are becoming more aware of the depth and pervasiveness and profound seriousness of the harms and injuries caused to a vulnerable spouse, usually a woman as observed in Ahluwalia, by an aggressor spouse, usually a man, over years of a spousal relationship.

[533] The non-pecuniary (pain and suffering), and aggravated general damages award for the harms and injuries caused by the tortious conduct, arising from the alternative, traditional, torts is $300,000.

Compensatory Damages under the Tort of IPV

[534] As per the framework set out in Ahluwalia, whatever the damages are arising from the traditional torts in an intimate partner relationship, they must be higher for the tort of intimate partner violence. This is because the new tort captures not only the harms and injuries arising from the pre-existing traditional tortious conduct, but the added harm caused by the exercise of coercive control to the abused intimate partner’s dignity, autonomy, and equality.

[535] The tort of IPV vindicates the right of intimate partners to exercise autonomy over decision making, be equal, and have their dignity respected by their intimate partner within the intimate partner relationship. Compensation is intended to provide solace and recourse for the additional harm caused by the exercise of coercive control over the vulnerable intimate partner resulting in an impairment of those rights, in addition to the other harms that are caused by the underlying abusive conduct itself. Punishment can be achieved through the assessment of punitive damages where appropriate.

[536] Of note, as with any intentional torts, this tort is actionable without proof of causation or damage. This is because the harm flows from the wrong (Ahluwalia, at para. 177).

[537] The Supreme Court stated in Ahluwalia, at para. 184:

The harm associated with coercion flows from proof of the wrongful conduct. The interference with an intimate partner’s dignity, autonomy, and equality itself constitutes the harm experienced by the victim of coercive control. Accordingly, much like certain intentional torts, this new tort does not require the plaintiff to prove any consequential harm separately. The quantum of compensatory damages that may then be awarded “must represent a meaningful response to the seriousness of the breach”. The quantum of damages depends on the extent of the harm and the factual circumstances. Generally, coercive control constitutes a serious breach of a victim’s intangible interests, as dignity, autonomy, and equality are fundamental tenants of intimate partnerships.

[538] The court emphasized that, “[c]onsistent with the corrective function of tort law, the guiding principle in assessing the quantum of compensatory damages is that the award should restore the plaintiff to the position they would have been in had the specific wrong occurred (at least insofar as money can do so): Ahluwalia, at para. 222. The Supreme Court calls upon lower courts to take on the task of assessing damages for this novel tort, recognizing the seriousness of the conduct and the adverse impact to a fundamental right of intimate partners; namely, the right to maintain their dignity, their autonomy, and their equality, within the context of an intimate partner relationship.

[539] In Ahluwalia, the Court, at para. 227, summarizes the unique harm that is being redressed by the new tort, which harm flows from the tortious conduct without the need to prove any further consequential harms:

Intimate partner violence is a social ill and a deep affront to one’s dignity. The common law’s remedial response against it must therefore be corrective and strongly denunciatory. This cannot occur when even those plaintiffs who make out their claim in court are unable to fully recover their losses due to myths or stereotypes. However, loss of dignity is not simply an aggravating factor that justifies a higher quantum of damages. As previously discussed, in the context of intimate partner violence, the interference with dignity is a feature of the tort itself: it is inherent to, and indissociable from, the conduct and its harm as is evident in respect of the elements of the new tort identified here. General compensatory damages, therefore, must fully redress the injury to the victim’s autonomy arising from a conduct amounting to coercive control. Violence that occurs at the hands of one’s intimate partner is arguably more harmful, or at least differently harmful, than violence at the hands of a stranger. Where a court is satisfied that the defendant’s tortious conduct arose in the context of intimate partner violence, the damages awarded must acknowledge and fully compensate the plaintiff for that harm, without discount or exceptionalism. It would be an error to presume that the violence that occurs in the context of an intimate partnership is somehow less damaging.

[540] In her written submissions, Lynda sought $200,000 as compensatory damages, $50,000 as aggravated damages, and $50,000 as punitive damages for a total of $300,000. However, under the traditional torts, at trial, she sought an award of $450,000.

[541] As stated, Lynda’s approach to damages reflects a misunderstanding of Ahluwalia and its directive that damages for the new tort will be greater than the sum of the damages for the traditional torts because the latter does not address the distinct harm to dignity, autonomy, and equality when the tortious conduct occurs within an intimate partnership. I will apply the law as set down by the Supreme Court.

[542] At paras. 9 and 248, the Supreme Court noted that the aggravating factors considered by the trial judge in Ahluwalia were not true aggravating factors in the context of the new tort because the intimate partnership is embedded as an element in the tort itself. This includes traditional aggravating features like betrayal of trust and the manner in which the abuse was perpetrated. The Supreme Court does not provide examples of other aggravating factors that are not embedded in the tort but may feature in assessing enhanced compensatory nonpecuniary damages.

[543] Lynda has not advanced any aggravating factors that are not inherent to the intimate partner relationship. Hence, I will not award aggravated damages as part of the general compensatory award for this tort.

[544] Nonetheless, the Supreme Court was clear that compensatory damages awards for this new tort must be higher than the damages awarded under the traditional torts due to the new distinct harm that is being addressed.

[545] The harm which distinguishes the IPV tort damages from the consequential damages/harms arising from the traditional torts she has proven, is the severe impairment of Lynda’s own sense of dignity, her autonomy to make decisions for herself and her family including the ability to leave the abusive marriage earlier than she did and to start a new life, and her right to equality within the intimate partner relationship. Lynda’s dignity continues to be impaired by the consequences of Joe’s abusive actions in the aftermath of separation, particularly in the forms of pervasive fear, low self esteem and low self worth. She is effectively in hiding as she fears Joe’s ongoing ability to exert coercive control over her through violence. The fact that she cannot contemplate another romantic relationship demonstrates that her sexual autonomy continues to be severely impaired today.

[546] I have considered the additional harm caused by Joe’s intimate partner violence tortious conduct and the quantum of damages that will compensate Lynda for the violation to her autonomy, dignity, and equality, distinct the consequential harms that were caused by the abusive conduct amounting to coercive control in the form of assault, battery, and the intentional infliction of emotional distress, and determined that the appropriate additional compensation to address this distinct harm will be significant. Awarding a “notional” amount for the distinct harm caused by the tort of IPV, as recognized in Ahluwalia, would be unjust and undervalue the “deep affront” to the abused intimate partner’s dignity, as well as the losses associated with dignity, autonomy and equality resulting from coercive control: Ahluwalia, at paras. 222 and 227. The additional amount of compensatory damages for the violation of Lynda’s autonomy, dignity and equality is $100,000.

[547] Of course, money cannot ever truly restore Lynda to the place she would have been but for the tortious conduct she experienced. As she observed, she has lived most of her life with intimate partner violence. However, an appropriate award of compensatory damages for the harms, injuries, and losses suffered by Lynda arising from the tort of intimate partner violence in this case is $400,000.[8] This award achieves the objective of corrective justice and attempts to place Lynda in the position she would have been but for Joe’s IPV tortious conduct.

Punitive Damages

[548] The other category of damages sought by Lynda is punitive damages.

[549] There is no doubt that Joe’s conduct is deserves specific and general deterrence by way of an award of punitive damages.

[550] The sentence he received was a conditional discharge and was for two discrete acts of abuse and the breach of his probation order.

[551] However, in fixing the quantum, I am also aware that Joe owes Lynda a substantial equalization payment, as well as an award of compensatory damages. In my view, his limited financial means is a relevant consideration in fixing an appropriate amount.

[552] In my view, a punitive damages award of $25,000 is sufficient to satisfy the twin objectives of specific and general deterrence, and amounts to a strong condemnation of his behaviour, in the circumstances of this case.

Permanent Restraining Order

[553] Lynda seeks a permanent restraining order against Joe with the following conditions:

(a) The restraining order shall remain in effect until a further order of the court. If there is no incident within the next 36 months from the date of the order, Joe may move to terminate the restraining order.

(b) Joe shall not attend within 1000 metres of Lynda’s home, or any other place he may reasonably expect her to be;

(c) Joe shall not communicate directly or indirectly with Lynda except through their respective lawyers.

[554] As stated, the no contact order provided in the probation order recently expired.

[555] Section 46(1) of the FLA provides that an interim or final restraining order may be ordered against a spouse or former spouse, if, inter alia, the applicant spouse “has reasonable grounds to fear for his or her own safety”. Section 46(3) describes the provisions which can attach to such a restraining order.

[556] In Tiveron v. Collins, 2014 ONCJ 574, at paras. 168-69, the court held that the relevant factors are:

(a) The Applicant must have a reasonable fear for her safety;

(b) The fear may be subjective so long as it is legitimate; and

(c) The fear may be equally for psychological safety as well as for physical safety.

[557] A restraining order, however, is not to be granted lightly. It can have criminal ramifications if breached. Also, although not applicable to this case, it can interfere with a respondent’s ability to be employed. These and other principles are set out in G.P. v. R.P., 2023 ONCJ 388, 92 R.F.L. (8th) 45.

[558] Joe submits that the restraining order is not necessary, because he was subject to a criminal restraining order at the time of trial. However, that order has now expired.

[559] Joe notes that he does not know where Lynda lives and that raises a practical concern about the ability to stay 1000 metres away from her place of residence. Furthermore, he is living in the matrimonial home which is in close proximity to one of the children’s homes (Sean’s). Therefore, if Lynda visits that home, Joe would be in breach by simply being at his home.

[560] I heard much evidence from Lynda and the children concerning times when Joe located Lynda post-separation and acted in a hostile and threatening manner. Two such events resulted in criminal convictions.

[561] I also heard much evidence through the audio recordings demonstrating hostile and threatening attitude from Joe directed at Lynda, again post-separation.

[562] I need not review that evidence again.

[563] However, there have been no recent such interactions.

[564] I find as a fact that Lynda continues to fear that Joe will find her, as he often threatened, he would search and sometimes did find her post-separation, when he knew Lynda did not welcome his contact and the children, notably Kathleen, discouraged the contact. This supports the finding that Lynda has a reasonable fear which is subjective but based in tangible events in the relatively recent past and is therefore legitimate. Lynda has acted on her fears by moving to an undisclosed location, away from her children. I further find that Lynda’s fear is for both her psychological safety and her physical safety.

[565] Accordingly, a restraining order is warranted and will issue.

[566] The main concern is the terms of the restraining order.

[567] The terms of the restraining order must be practical. Keeping in mind the proximity of the matrimonial home, in which Joe will live once he pays the monetary orders[9], and one of the children’s homes which Lynda may visit, I add the following terms to the restraining order:

(a) The restraining order shall remain in effect until a further order of the court. If there is no incident within the next 36 months from the date of the order, Joe may move to terminate the restraining order.

(b) Joe shall not knowingly attend within 500 metres of Lynda’s home, or any other place he may reasonably expect her to be. This term is not breached, however, by reason of Joe being physically located within the 266 Waite Road property.

(c) Joe shall not communicate directly or indirectly with Lynda except through their respective lawyers. For clarity, this term prohibits Joe communicating with Lynda through the children, by telephone, social media, text, or any other medium.

Prejudgment Interest on the Damages Award and Equalization Payment

[568] Lynda seeks prejudgment interest in the sum of two percent per year on the equalization award from November 20, 2021. In her calculations, she listed what she assumed would be the remaining unpaid amount of $690,870 and calculated 1,432 days to the date of the last day of trial in the sum of $54,171.78.

[569] Lynda also seeks prejudgment interest on the non-pecuniary and punitive damages from November 20, 2021, at the rates of five percent and two percent respectively.

[570] Section 128(2) of the Courts of Justice Act governs prejudgment interest. However, pursuant to section 130 of the Courts of Justice Act, I have discretion in setting the prejudgment interest, including the period for which it is payable.

[571] Rule 53.10 of the Rules of Civil Procedure sets out the presumptive prejudgment interest rate on non-pecuniary damages at five percent. There is no reason to displace that interest rate, and no evidence was advanced to displace the presumptive interest rate: Henry v. Zaitlen, 2024 ONCA 614, 174 O.R. (3d) 489. Accordingly, I fix the prejudgment rate at five percent with respect to the non-pecuniary damages award.

[572] Prejudgment interest on non-pecuniary damages arising from personal injury accrues from the date that the plaintiff’s cause of action arose: Courts of Justice Act, at s. 128(1). A default position is often the date the legal proceeding seeking damages was served. Lynda did not lead evidence as to when she discovered her cause of action. It is possible that claimants with claims based in the tort of IPV and domestic violence-related traditional torts will have discovered their claims prior to the date of separation. Each case is fact-specific, and evidence driven. Furthermore, I note that the cause of action of the tort of IPV did not exist prior to the release of the Supreme Court of Canada’s decision in Ahluwalia. However, it is clear that Lynda discovered her tort claims arising from Joe’s abusive conduct, including coercive control, at least by the time she issued her Application on November 15, 2021. I assume Lynda put forth the November 20, 2021, date as the start date for the accrual of prejudgment interest as this was the date she served her Application on Joe.

[573] Accordingly, prejudgment interest is fixed at the rate of five percent on the non-pecuniary damages award of $400,000 commencing November 20, 2021.

[574] Punitive damages do not attract prejudgment interest: Courts of Justice Act, at s. 128(4)(a).

[575] Joe submits that a prejudgment interest award is not warranted on the equalization payment as he was prevented from enjoying, realizing, and monetizing his assets, citing Burgess v Burgess, 1995 CanLII 8950 (ON CA), [1995] 24 O.R. (3d) 547 (C.A.); Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65; Moss v. Jackson, 2024 ONSC 4504. The main assets in dispute were his gun collection which was seized by the police after his arrest in September 2021, preventing him from selling them until they were released and even then, some have not yet been released by the police, and the handguns and machine guns cannot be sold in Canada due to the amendments to the Canadian gun laws. Furthermore, after he was criminally charged in September 2021 and released on restrictive bail conditions, he was not able to enter or enjoy the matrimonial home until those charges were resolved. Finally, Joe was unable to access the Sandy Cove cottage after Lynda changed the locks and later had him charged with breach of his bail conditions for attending at this property (which charges were later withdrawn).

[576] In Burgess, the Court of Appeal held that prejudgment interest was not warranted on an equalization payment where the asset giving rise to it (the payor’s future pension) could not be liquidated, enjoyed or used by the payor and did not earn income prior to the trial.

[577] The Court further held that while, as a general rule, the payor spouse is required to pay prejudgment interest on an equalization payment, there are exceptions to that rule that may be exercised under the court’s discretion under s. 130 of the Courts of Justice Act. Those exceptions included:

(a) The payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial;

(b) Does not have the use of the asset prior to trial;

(c) The asset generates no income; and

(d) The payor spouse has not delayed the case being brought to trial.

[578] In Fielding, at paras. 42-43, the Court of Appeal upheld the trial judge’s decision not to award prejudgment interest on the equalization payment owed by the payor husband because the payee wife had use of the matrimonial home from the date of separation and the husband accordingly did not have use of that asset or the income from its value.

[579] In Moss, the trial judge declined to award prejudgment interest on the equalization payment because the main asset, the matrimonial home, was sold but the sale proceeds held in trust just prior to the commencement of trial. In the circumstances, it would be unfair to award prejudgment interest.

[580] I find that Joe’s arguments are not persuasive. First, his guns were seized by the police due to his own criminal conduct. Second, his inability to initially access the matrimonial home was also because of his own criminal conduct. These are not reasons to deprive Lynda of prejudgment interest. Second, the parties both played a role in the upheaval around the matrimonial home and the cottage post-separation. Third, Joe delayed this matter in proceeding to trial because of his incomplete disclosure issues and failure to value his gun collection as at the date of separation, in breach of court orders.

[581] Prejudgment interest on pecuniary awards, including equalization awards, is the bank rate at the end of the first day of the last month of the quarter preceding the quarter in which the proceeding was commenced, rounded to the nearest tenth of a percentage point: Courts of Justice Act, at s. 127(1). In this case, the Application was commenced in November 2021. Therefore, the interest rate is the rate fixed in the third quarter, ending September 31, 2021 which was two percent, as claimed by Lynda.

[582] There is no good reason to deprive Lynda of prejudgment interest on the equalization award at the prescribed rate from November 20, 2021, as claimed.

[583] Accordingly, I award prejudgment interest on the equalization payment fixed at two percent commencing November 20, 2021.

[584] The parties may calculate the various prejudgment interest amounts and provide them to me with the formal judgment for execution.

Orders

[585] I therefore make the following orders, which are in addition to the consent orders, made at trial:

(a) The Application is amended, nunc pro tunc, to plead the tort of intimate partner violence;

(b) The Respondent shall pay the Applicant the sum of $1,866,141.34 as the equalization payment;

(c) The Respondent shall pay the Applicant general, non-pecuniary (compensatory) damages in the sum of $400,000;

(d) The Respondent shall pay the Applicant punitive damages in the sum of $25,000;

(e) A restraining order shall be issued on the terms set out in this judgment;

(f) Prejudgment interest shall accrue at the rate of two percent per year on the equalization payment from November 20, 2021, to the date of this judgment;

(g) Prejudgment interest shall accrue at the rate of five percent per year on the general, non-pecuniary (compensatory) damages award from November 20, 2021 to the date of this judgment;

(h) Post-judgment interest shall accrue at the rate prescribed by the Courts of Justice Act.

(i) Costs to be determined.

Costs

[586] The Applicant shall provide her costs outline and costs submissions within 10 days from today. The Respondent shall provide his costs outline and cost submissions within 10 days thereafter. The respective cost submissions shall not exceed five double spaced, typed pages each and these documents shall be provided to my judicial assistant, Katie Ray (katie.ray@ontario.ca) and filed on C-Track.

S. VELLA J.

Released: July 27, 2026

CITATION: Mitchell v. Mitchell, 2026 ONSC 4259

COURT FILE NO.: FS-21-00026718-0000

DATE: 20260727

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Lynda Elizabeth Mitchell

Applicant

– and –

Joseph William Mitchell

Respondent

REASONS FOR JUDGMENT

S. VELLA J.

Released: July 27, 2026

1If I have made a mathematical error, the parties may provide me with the correct figure by way of a joint submission.

2It may be an opportune time to review the Family Law Rules to fill in any gaps that may exist as a result of the addition of this newly created tort in light of the anticipation that the Ahluwalia decision is likely to spawn a significant increase in these types of claims which are in the nature of personal injury claims. Currently, any gap may be filled by resort to the Rules of Civil Procedure. However, such an approach may not always be the best way to serve the primary objective of the Family Law Rules.

3Where there is a discrepancy between my oral reasons and my written summary of those reasons, my oral reasons prevail.

4As I stated in Barreto, at paras. 158-159, “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. According 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.”

5Not surprisingly, the parties did not refer the court to any jurisprudence developed on the tort of intimate partner violence following the release of the Supreme Court of Canada’s decision of Ahluwalia.

6While Lynda’s disclosure of abuse is inadmissible for the truth of the content as a prior consistent statement, it is admissible for purposes of explaining Dr. Shepherd’s diagnoses, causation opinion, and treatment.

7Ahluwalia v Ahluwalia, 2026 ($100,000 but the damages award was not appealed); Zunnurain v. Chowdhury 2024 ONSC 5552 ($200,000); Barreto v. Salema, 2024 ONSC 4972 ($150,000 plus $10,000 punitive damages); Mikhail v. Mikhail, 2024 ONSC 4427 ($100,000); Pichie v. Pichie, 2024 ONSC 2868 ($100,000 plus $15,000 loss of earning capacity, $2,885.75 OHIP subrogated claim); Wang v. Li, 2024 ONSC 2352 ($75,000); Sethi v. Sethi, 2025 ONSC 5079 ($100,000).

8While Lynda requested $350,000 in nonpecuniary damages, she also requested $100,000 in punitive damages. The new tort of IPV is in a state of infancy and could not be well assessed by Lynda’s or Joe’s counsel at the time of trial. Furthermore, Joe is not taken by surprise given the total award sought against him in damages is $450,000 and the damages were thoroughly canvassed by the parties in the evidence and submissions. Furthermore, the Family Law Rules do not require that the quantum of damages be stipulated. The award of $400,000 is inclusive of all harms and losses arising from the abusive conduct and coercive control.

9By terms reached on consent of the parties and to be incorporated into the final order, contemporaneous with the payments of all amounts owed to the Applicant by the Respondent as a result of the final order or any other order in these proceedings, the Applicant shall transfer her interest in, inter alia, 266 Waite Road, Pontypool, Ontario, referenced as the “matrimonial home”, to Joe by way of an interspousal rollover.