Suing her ex-husband and his parents, woman alleges emotional distress, financial deception
In an action alleging intimate partner violence, emotional distress, and financial misconduct relating to the ownership of a family home, the Ontario Court of Appeal found summary judgment in the former husband’s favour inappropriate for the issues involved.
In Malamas v. Wey, 2026 ONCA 133, the parties married and had two children. In August 2022, the appellant ex-wife filed a statement of claim against the respondents, who were her ex-husband and his parents. She sought damages.
While pregnant with their daughter, the ex-wife accepted the ex-husband’s proposal, supposedly because he said his parents would buy a home as a gift for them, with his name registered on the title.
The ex-husband’s parents purchased the home in their own name and never registered their son on the title. The ex-husband admitted that he and his parents did not disclose this fact to the ex-wife.
The ex-wife alleged that the ex-husband physically assaulted her multiple times during their nine-year marriage. Contemporaneous emails documented these incidents. She claimed he threatened violence against her and the children and also assaulted their son.
Alleging financial control, the ex-wife claimed that the ex-husband made her cover household expenses on the basis that his parents had bought the home and that he and his parents were paying the mortgage, property taxes, and home insurance.
In summer 2016, the ex-wife reported the ex-husband’s assaults to police. Weeks later, the ex-husband sent the ex-wife a letter from his parents’ lawyer. The letter asked her to vacate the home by early fall, as the parents were its sole owners. This revelation shocked her.
On cross-examination, the ex-husband admitted that he had assaulted the ex-wife and their daughter during the marriage. He disputed other allegations.
The respondents moved for summary judgment. They asserted the procedural doctrines of limitations, res judicata, and abuse of process.
In May 2023, Justice Alexander Sosna of the Ontario Superior Court of Justice summarily dismissed the action upon finding that the defence in Ontario’s Limitations Act, 2002, and the res judicata doctrine barred the ex-wife’s claims.
The motion judge also considered the claims an abuse of process. Lastly, the judge acknowledged an August 2017 consent order, issued in related family proceedings, as a bar to the claims against the parents.
The Court of Appeal for Ontario partly allowed the appeal, set aside the summary judgment and cost award in the ex-husband’s favour, and remitted the ex-wife’s action against him for trial. The appeal court granted her leave to amend and clarify her claims against him.
The appeal court dismissed the appeal in connection with the ex-wife’s claims against the parents because the 2017 consent order barred them.
Regarding the claims against the ex-husband, the appeal court saw genuine issues requiring a trial in relation to the limitations defence and the doctrines of res judicata and abuse of process in light of the allegations and evidence of intimate partner violence.
The appeal court ruled that the motion judge failed to address this evidence when assessing the procedural doctrines and overlooked the context of intimate partner violence when describing the pressures facing the ex-wife after the relationship breakdown as “not uncommon.”
The appeal court acknowledged that the record included evidence of alleged harms extending beyond physical injury, including fear, trauma, and financial insecurity.
The appeal court explained that ss. 16(1)(h.2) and 16(1.3) – enacted by Ontario’s Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 – removed the limitation period for claims in a proceeding “based on” an assault in an intimate relationship if the party advanced the claims “in relation to” that assault.
The appeal court deemed summary judgment inappropriate for determining the applicability of s. 16. Given the ex-wife’s evidence, the appeal court saw a possible temporal and contextual connection between the alleged financial deception and the assaults.
The appeal court found a genuine issue requiring a trial regarding whether the ex-wife’s claims were “in relation to” the assaults. The appeal court noted that the ex-husband admitted to assaults that could meet the “based on” requirement.
The appeal court added that the assaults were part of the factual foundation for the emotional distress claim and gave context for the related financial allegations.
Regarding the claims against the parents, the appeal court saw no reversible error on the judge’s part. The appeal court pointed out that the 2017 consent order referred to “all claims” between the ex-wife and the parents, in the context of finally resolving the parents’ involvement in the family proceeding.
