Key things to keep in mind when advancing tort claims for IPV in family court
Separation and divorce are difficult processes and never an easy decision. Choosing to pursue tort claims as a survivor of family violence and intimate partner violence (“IPV”), or defending tort claims in relation to allegations of family violence and IPV adds additional complexity to a family law claim.
This blog post outlines some of the key considerations when advancing tort claims for IPV in family court, including:
1. Disclosure Obligations
2. Putting OHIP on Notice regarding a Subrogated Claim
3. Expert Evidence
4. Questioning
5. Damages for Economic Loss vs Claims for Spousal Support
6. Intersection between Criminal Charges and Tort Claims
and intends to provide clarity for those who are considering, already pursuing or responding to these claims.
The Family Law Rules and the Rules of Civil Procedure
The Family Law Rules, O.Reg. 114/99 (the “Family Law Rules”), apply to cases commenced in family court, including cases where a claim in tort for damages for abuse is commenced in family court, whereas the Rules of Civil Procedure, R.R.O. 1990, Reg.194 (the “Rules of Civil Procedure”), apply to cases commenced in civil court, including claims in tort for damages for abuse. There are differences in these rules which impact crucial procedural elements of a tort claim, including disclosure processes and questioning. Where the Family Law Rules are silent on an issue or do not cover an issue adequately, the family court may refer to the Rules of Civil Procedure if the court considers it appropriate to do so. The court is not required to apply the Rules of Civil Procedure.[1]
Disclosure Obligations
The rules applicable to family court and civil court impose different disclosure obligations. The Rules of Civil Procedure require parties to serve on every other party an affidavit of documents, disclosing to the full extent of the party’s knowledge, information and belief, “all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.”[2]
In comparison, the Family Law Rules require parties to produce all relevant financial disclosure, all disclosure they intend to rely on prior to questioning, and all relevant disclosure requested by the other side;[3]however, the Family Law Rules do not require the parties to serve an affidavit of documents unless requested by the other party.[4]
Production of Medical and Health Records
Medical and health records are often relevant to the psychological and physical harms a survivor has experienced and will generally be produce able. Health records that may be helpful or relevant include those from a survivor’s family doctor, therapist, counsellor, psychologist, psychiatrist, social worker, rehabilitation therapist, physiotherapist, chiropractor and naturopath, among others. It may also be useful to request the survivor’s personal claims history/summary from the Ontario Health Insurance Plan (“OHIP”), especially where the survivor does not recall the medical or health practitioners they have received services from. The OHIP personal claims history can assist in determining what records may be helpful and which should be requested.
Understandably, survivors are often concerned about the disclosure and use of their personal health records, which may contain sensitive information that they often fear may be weaponized by the responding party to harass, intimidate or embarrass them. It is therefore very important to advise survivors from the outset that if they choose to advance claims for damages in tort for IPV, they must be prepared to produce these records.
Personal health records have the benefit of substantiating claims and are helpful to corroborate the nature and severity of injuries, and the history and continuity of the abuse. Medical records also bolster the survivor’s credibility, especially where the perpetrator’s argument is that allegations of abuse have been fabricated or exaggerated.
If a party refuses to produce medical and health records, the other party may bring amotion for production. Medical and health records are generally subject to common-law privilege, which means the records may not be produce able if the opposing party meets the following test: (1) the communications originate in a confidence; (2) the confidence is essential to the relationship in which the communication arise; (3) the relationship is one which should be “sedulously fostered” in the public good; and (4) the interest served by protecting the communications from disclosure outweighs the interest in getting at the truth and disposing correctly of the litigation. At stage (4) of the test, the court will consider the potential harm to the ongoing relationship between the survivor and their treatment provider, and the potential discouragement of other survivors from seeking treatment if there is a finding of no privilege. The court will also consider the relevance of the records being sought, with reference to the nature of the claims and/or defenses – relevance may mean that disclosure is needed, despite the high interest of a party in keeping it confidential.[5]
Even if the moving party is successful in obtaining an order for production, the court may impose conditions on disclosure to ensure the confidential nature of the records are preserved to the greatest degree possible. These conditions may include restricting the number of documents disclosed and limiting who may see and copy the documents. [6]
It is important that survivors request and obtain medical records well ahead of any disclosure requests to ensure their lawyers and experts (if any) have sufficient time to review. Where survivors wish to obtain their medical records, medical and health professionals may be reluctant to produce them due to concerns of confidentiality and potentially infringing individual privacy rights.[7] In general, where a party requests their records for the purposes of litigation, the treatment provider is obligated to provide them. Section 52(1)of the Personal Health Information Protection Act confirms that individuals have a right to access their health records subject to a list of exceptions, including where granting access “could reasonably be expected to result in a risk of serious harm to the treatment or recovery of the individual or a risk of serious bodily harm to the individual or another person”.[8]
Putting OHIP on Notice regarding a Subrogated Claim
OHIP pays for many health services, including services that survivors may use during and after abuse. Where OHIP pays for services on behalf of a survivor to treat harms stemming from IPV, the Ontario Ministry of Health is entitled to recover these amounts from the perpetrator. [9]When advancing claims for monetary damages in Ontario, lawyers acting for survivors are required to put the Ministry of Health on notice as they may wish to make a subrogated claim if they have incurred any expenses as a result of the abuse.[10]
Any sums that the perpetrator may be required to pay to the Ministry of Health are separate from damages the perpetrator would be required to pay to the survivor. For example, in a recent British Columbia case, J.K.P. v L.S.B, 2025 BCSC 1494, Justice Milman awarded $779.75 to the Minister of Health for healthcare costs incurred because of the husband’s tortious conduct. This award was separate from the damages awarded to the wife with respect to her tort claims, which totalled $202,849.[11]
Lawyers may put the Ministry of Health on notice by enclosing a complete set of pleadings in the action, and briefly outlining the nature of abuse inflicted and the harms suffered by the survivor.
Expert Evidence
Experts play a crucial role in claims for damages for IPV. They provide valuable and persuasive evidence as to causation and the severity of the harms suffered by survivors; and assist the court in quantifyingthose harms.
There are two main types of experts often relied on in claims for damages for abuse – litigation experts and participant experts. Litigation experts are experts engaged by a party for the purposes of litigation to provide expert opinion evidence. Participant experts are not engaged to provide expert opinion evidence for the purposes of litigation but provide expert opinion evidence based on the exercise of their skills, knowledge, training or experience while observing or participating in the events at issue.[12]
In Barreto v Salema, 2024 ONSC 4972, the wife called her therapist as a participant expert witness and retained a psychologist as a litigation expert witness in support of her claim that her psychological harms were caused by the husband’s tortious conduct arising from the intentional infliction of emotional distress and physical battery. Justice Vella noted that no expert medical or psychological evidence was led to support the spouse’s claim for damages in Ahluwalia v Ahluwalia, 2023 ONCA 476, whereas the wife here had provided “expert evidence on causation and the severity of harms” which were illustrative of the “chronic, pervasive, long-standing” psychological harms suffered by the wife.[13] As a result, she ordered general and aggravated damages at $150,000, higher than the damages of $100,000 awarded in the Court of Appeal’s decision in Ahluwalia[14]
In Schuetze v Pyper, 2021 BCSC 2209, the wife sought damages from the husband, who had subjected her to ongoing family violence. The wife produced expert opinion evidence from her rehabilitation specialist, family physician and neuropsychologist in support of her injuries and symptoms, and an expert report from an economist in support of her claim for damages for past loss of income and loss of earning capacity. The economist calculated the wife’s damages for past loss of income to amount to $239,485. Justice Fleming rejected the husband’s assertion that the wife exaggerated her injuries and could have returned to work much earlier and more fully. She relied on the wife’s expert evidence that the wife had “experienced a complete vocational disability”. In quantifying the wife’s damages, Justice Fleming found that the economist’s calculation was accurate and awarded the wife $239,485 in damages for past loss of income. [15]
Questioning
Questioning is often necessary to understand the other sides’ version of events and to assess credibility and reliability prior to trial. It is an important opportunity to obtain information from the other party, and for the purposes of advancing or defending tort claims, it can be crucial to flush out details of the allegations and statements in pleadings and other court materials.
Understandably, many survivors are concerned about giving evidence about the abuse they have suffered with their perpetrator present. The general rule is that a party has an inherent right to be present at the other’s questioning – in the same way that a party has aright to be present at every other step in the proceedings.[16] However, questioning survivors in the presence of their perpetrators can be deeply traumatizing and may create opportunities for intimidation that favor the perpetrator. In the civil context, the legal principles that apply to exclude a party from an out-of-court examination are summarized in York University v Markicevic, 2012 ONSC 5325:
(i) There is an inherent right for parties to an action to be present during the cross-examination or examination for discovery of other parties to, or witnesses in, an action;
(ii) The court has the discretion to exclude parties from attending such cross-examinations or examinations for discovery;
…
(vi) Demonstrated intimidation by one party towards the other is a justifiable reason to exclude, however a court should guard against assuming intimidation from a set of circumstances. Intimidation must be proven.[17][emphasis added]
A court may order that the other party be excluded from questioning where the party to be questioned can show that there is a real and substantial probability that intimidation would occur, and where the risk of intimidation is supported by a medical opinion. In Antonopoulos v The City of Toronto, 2020 ONSC 637, the defendant alleged that the plaintiff had sexually assaulted her at work and sought the exclusion of the plaintiff from her examination for discovery. The defendant was “extremely fearful” about seeing the plaintiff and her psychologist confirmed that “being in a room, seeing, or interacting with [the plaintiff]” was highly likely to exacerbate the defendant’s PTSD and depressive symptoms. Master Abrams granted the defendant’s motion – the risk of harm to the defendant of re-traumatization and a significant setback to her mental health outweighed any prejudice to the plaintiff from being excluded.[18]
One way to resolve the concern of prejudice to the perpetrator from being excluded from questioning is to agree that the perpetrator may review the transcript after the questioning and put further questions to the survivor in writing if further questions arise.
Damages for Economic Loss vs. Claims for Spousal Support
There are special and intersecting considerations when a party has advanced claims in family court for spousal support and for damages for economic loss as a result of IPV. The purpose of spousal support is to relieve economic hardship arising from the breakdown of the relationship and can be ordered if a party has need or to compensate a party for shouldering household and family responsibilities. In comparison, damages in tort are designed to compensate for harms that flow directly from spousal violence[19]– it aims to put the survivor back in the economic position they would have been in had the abuse not occurred.
A decisionmaker must consider whether an economic loss claim is impacted by an award for spousal support. If a survivor is entitled to spousal support, their claim for damages in economic loss may be less. While a survivor may be entitled to some damages(depending on the value of their claim and the amount of spousal support awarded), the courts have made clear that there can be no “double-dipping”.
Justice Mandhane addresses the issue of double dipping in her decision in Ahluwalia v Ahluwalia, 2022 ONSC 1303. To avoid “double-dipping” when assessing spousal support and damages, Justice Mandhane not only confined herself to only considering the wife’s physical health needs unrelated to the abuse for the purposes of spousal support, but also reduced the wife’s potential compensatory damages – “Had there been no spousal support payable, I could easily have ordered compensatory damages in the range of $100,000.”[20]
Intersection between Criminal Charges and Tort Claims related to those charges
Often times a survivor may wish to advance tort claims when a criminal proceeding for the same instances of abuse are ongoing.
The standard of proof for a criminal conviction is beyond a reasonable doubt, whereas in a civil or family proceeding, the standard of proof is lower – more likely than not on a balance of probabilities. A criminal conviction based on the same facts as a tort claim for damages will therefore generally lead to a successful claim for damages in the civil and family context.
In Morris v Morris, 2025 ONSC 2483, the husband had previously pled guilty to criminal harassment of the wife and was sentenced. Justice J.R. McCarthy found that the summary of facts in the criminal proceeding was sufficient to ground findings related to the torts of assault, battery and intentional infliction of emotional distress against the wife. He awarded the wife damages totaling $75,000.[21]
An acquittal in criminal court does not bar or automatically dismiss a claim for damages on the same facts. In Jain v Jain, 2025 ONSC 4454, the husband was charged but acquitted of assault, mischief and unlawful confinement. He relied heavily on his acquittal to argue that the wife should not be believed with respect to her tort claims. Justice G.D. Lemon disagreed, with reference to the difference in standards of proof between criminal court and family court– while the criminal trial judge could only convict the husband if he was persuaded beyond a reasonable doubt that the husband was guilty of an offence, Justice G.D. Lemon found that the wife’s tort claims were made out on a balance of probabilities, and awarded her damages of $60,000.[22]
As a result, where possible, it is often beneficial to wait for a determination in the criminal proceeding before addressing the tort claims. In family court, it is not always possible to wait to start a family court case until the criminal proceeding is over – often there are other issues that must be addressed more imminently, including parenting and support. Starting a claim before a determination in the criminal proceeding is not always prejudicial – given the slow timelines in family court, even if the family case has been started, the criminal case often concludes before the family case concludes, unless the parties are able to settle the matter. While settlement is generally preferable, if a fair settlement is not possible, it may be beneficial to the claimant to wait for an adjudication on the criminal charges.
Navigating the intricacies of pursuing a tort claim within family law proceedings can be daunting and emotionally taxing. Engaging a trauma-informed lawyer who understands the unique complexities of advancing tort claims within a family proceeding is crucial to minimize re-traumatization during the legal process and to ensure survivors are supported every step of the way.
This blog is intended to provide legal information only. This blog does not provide legal advice. If you need legal advice, contact us or another experienced family law lawyer.
[1] Family Law Rules, O. Reg. 114/99, r. 1(7).
[2] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 33.03(1).
[3] Family Law Rules, O. Reg. 114/99, r. 13, r. 20(8).
[4] Family Law Rules, O. Reg. 114/99, r.19(1).
[5] M(A)v Ryan, 1997 CanLII 403 (SCC), at paras 28, 33, 37,52; relied on in Bontes v Bontes, 2024 ONSC 3692, at para 14.
[6] M(A)v Ryan, 1997 CanLII 403 (SCC), at paras 33, 37.
[7] Office of the Privacy Commissioner of Canada, “Responsible information-sharing in situations involving intimate partner violence: Resolution of the Federal, Provincial and Territorial Privacy Commissioners and Ombuds with responsibility for privacy oversight” (last modified 27 November 2024), online.
[8] Personal Health I nformation Protection Act, S.O. 2004, c 3, Sch. A, s.52(1) and s. 52(1)(e)(i).
[9] Health Insurance Act, RSO 1990, c H.6, s.30(1).
[10] Health Insurance Act, RSO 1990, c H.6, s.31(1).
[11] J.K.P. v L.S.B, 2025BCSC 1494, at paras 173, 181, 187-188.
[12] Family Law Rules, O. Reg. 114/99, r. 20.2(1).
[13] Barreto v Salema, 2024 ONSC 4972, at paras 353, 360-361, 446,448.
[14] Ahluwalia v Ahluwalia, 2023 ONCA 476, at para 133.
[15] Schuetze v Pyper, 2021 BCSC 2209, at paras 6, 7, 8, 234, 455-456, 458, 461-462, 464.
[16] F.(K.) v White [2000] O.J. No. 922 (SCJ), Roe v Leone 2009 CanLII 26359 (ONSC), summarized in York University v Markicevic, 2012 ONSC 5325, at para 8.
[17] York University v Markicevic, 2012 ONSC 5325, at para 8.
[18] Antonopoulos v The City of Toronto, 2020 ONSC 637, at paras 4, 6, 11-12, 15.
[19] Ahluwalia v Ahluwalia, 2022 ONSC 1303, at para 117.
[20] Ahluwalia v Ahluwalia, 2022 ONSC 1303, at paras 112, 117-118, 145.
[21] Morris v Morris, 2025 ONSC 2483, at paras 21, 162, 174.
[22] Jain v Jain, 2025 ONSC 4454 at paras50, 54-55, 74-86, 459.