Finalizing divorce should not bar subsequent civil claim for sexual assault: lawyer Kevin McLaren

Family lawyers dealing with sexual issues should consult with lawyers familiar with civil tort

Finalizing divorce should not bar subsequent civil claim for sexual assault: lawyer Kevin McLaren
Kevin McLaren

If a family lawyer becomes aware that sexual violence occurred during their client’s marriage, a civil claim can still be pursued after the conclusion of the separation or divorce, says a civil litigator who handles sexual assault cases.

Kevin McLaren, who successfully argued last year that a release his client signed in her divorce proceedings did not bar her subsequent civil claim for sexual assault, says family law lawyers need to be aware of the interplay between a sexual violence claim and family law proceedings.

McLaren says he has consulted with several family lawyers who are aware that sexual violence occurred during their clients’ marriages, and clients often want to seal the proceeding and separation as quickly as possible and do not wish to complicate matters by raising the issue of sexual violence.

He says people who have suffered intimate partner violence may be reluctant to raise the issue in the family law proceedings out of urgency to separate for the safety of themselves and their children. These people often receive legal advice that they cannot do anything after they sign off on their separation or divorce. There is also a reluctance to lump claims of sexual violence in with the others out of concern that their amalgamation will result in reduced compensation.

“There's a population of people that are unaware that certain behaviours that happen in the context of a marriage are actually sexual violence,” says McLaren. “It may not be until they enter therapy or seek appropriate advice that they actually understand that what was occurring in the context of marriage was sexual violence.

“It likely applies to a number of women that have been in that situation and this decision gives them more latitude to bring forward a claim without being barred by whatever documents may have been signed in the family law proceedings.”

In his case, released last November, McLaren’s client commenced a tort claim for damages alleging sexual assault and physical violence. The client’s ex-husband responded with an application for an order dismissing her action as an abuse of process, arguing her claims were res judicata as she sought to relitigate issues raised in their family law proceedings. He also argued the terms of their final consent order clearly barred her claims.

“In the family law proceedings, she did not claim for damages arising from physical or sexual assault,” says McLaren. “But the consent order and the release did reflect that she was releasing him from any claims ‘arising out of the marriage or cohabitation.’”

The plaintiff denied that the issues were litigated or understood as part of the resolution of the family proceedings, barred by the consent order or statute barred. She submitted that claims of sexual misconduct and physical violence in an intimate partner relationship are subject to an express exemption in s. 3(1) of the Limitation Act.

The plaintiff said her ex-husband was “sexually, emotionally, and financially abusive” and “exploited her vulnerabilities” surrounding her long-standing mental health and alcohol use issues. She said in her application that the respondent’s conduct amounted to “family violence” under s. 1 of the Family Law Act. She also said that on one night in June 2018, the respondent “violently raped” her, after which the police took her to the hospital.

The couple mediated and signed the final divorce order on Jan. 16, 2020. The consent order states, “Any other claims by either party arising from their marriage or their cohabitation will be and are hereby dismissed as if there had been a trial on the merits.”

Justice Karen Douglas of the BC Supreme Court said she was not persuaded that the doctrines of res judicata or abuse of process could bar the plaintiff’s tort claim.

The respondent relied on three Ontario cases to support his application. The plaintiff noted that the rulings were all between 23 and 35 years old and highlighted that all three cases pre-date the amendments removing the limitation period for sexual assault or domestic violence claims from the Ontario Limitations Act. BC has a comparable provision.

“We argued successfully that the Ontario cases… reflected outdated attitudes towards sexual violence and shouldn't be followed,” says McLaren. This was important, he says, because lawyers across Canada representing claimants in sexual violence cases believed that those Ontario decisions and the “broad general release language that you saw in family law proceedings” would erect a barrier to a sexual assault claim against a former partner.

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