Limitation periods, the issue of res judicata and spousal violence: McCann v. Barens, 2023 BCSC 2000 (CanLII)

Canada has some of the most progressive exceptions to limitation periods for spousal violence in the world. Across the country there are no limitation periods for claims related to sexual assault. In Ontario there is no limitation period for sexual assault,[1] misconduct of a sexual nature,[2] and physical assault between parties in an intimate relationship or survivors who are financially or emotionally dependant on the perpetrator.[3] There are strong policy reasons for these exceptions – a variety of factors prevent survivors of sexual and physical violence from coming forward within a prescribed time period.[4] A defendant should not benefit from the harm they have caused to a plaintiff, which often in turn prevents the plaintiff from coming forward with a claim. It can take years before survivors are mentally, emotionally and financially prepared to advance claims against their abuser.

A difficult issue arises where there is spousal violence in an intimate relationship and the parties are now separating – if the parties are addressing the issues resulting from the breakdown of their relationship, a survivor may be forced to deal with claims for damages for abuse, or risk being barred from advancing these claims later pursuant to the doctrines of res judicata and abuse of process. The British Columbia Supreme Court has attempted to address this problem in McCann v. Barens, 2023 BCSC 2000.[5] It is yet to be seen whether this case will gain traction in Ontario. Surprisingly, there has been little commentary on McCann v. Barens to date.[6]

The Doctrine of Res Judicata

Pursuant to the doctrine of res judicata, a matter that has already been litigated, or could have been raised as part of the litigation but was not, may not be relitigated.[7] It is a considered an abuse of process to attempt to relitigate matters already before the court.[8] Where issues of spousal violence could have been raised as part of the family law proceeding, the Court has historically held that they should have been raised, and cannot be advanced once the case has resolved:

“It is worth noting that a party with a legitimate tort claim against a spouse who fails to make such a claim at the time of the matrimonial litigation will likely be barred from doing so subsequently. The principles of res judicata, issue estoppel and finality operate to presume that parties coming to court with a dispute arising out of a particular set of facts have put all of the issues they intend to litigate before the court. A judgment will normally operate as a bar to a subsequent action based on the same facts. It is improper to launch a civil action over issues that have already been adjudicated in family court or which constitutes a collateral attack on the decision.” [9]

Most family law separation agreements also include a full release of all claims between the parties, which prevents a plaintiff from advancing a claim relating to spousal violence at a later time, if they have already released all claims against their former spouse, and those claims could have been raised as part of the negotiation of the issues resulting from the breakdown of the relationship.[10]

McCann v. Barens, 2023 BCSC 2000

The BC Supreme Court has recognized the problematic nature of the doctrines of res judicata and abuse of process in cases of spousal violence and held that where tort claims were not advanced or adjudicated in a family law case, even if the facts on which the claims are advanced were plead in the family law case, the doctrine of res judicata will not prevent a plaintiff from advancing claims for abuse after the family law case has finished – it would not bring the administration of justice into disrepute to allow the plaintiff to advance her claims for physical and sexual assault.[11]

In McCann v. Barens, the defendant brought an application to dismiss a new claim in civil court in BC for spousal violence on the basis of res judicata and abuse of process  - the parties had already resolved their family law dispute before the Court in Ontario, resolved by executed minutes of settlement.[12] The defendant relied on a number of cases in Ontario from the year 2000 or earlier, where claims like the plaintiff’s had been dismissed on the basis of res judicata or abuse of process.[13] The Court noted that there were no similar cases in BC and the Ontario cases were not binding on the BC Court.[14]

The plaintiff urged the court to reject these authorities on the basis that each case was dated, reflected antiquated reasoning and included myths and stereotypical attitudes about claims of spousal violence and sexual assault, and how plaintiffs should behave. The plaintiff submitted that the effect of these Ontario cases is to force a person who has experienced sexual or physical assault to advance the claim as part of the family law proceeding, directly contrary to the legislative intent of removing limitation periods for claims of sexual assault and physical violence. A person who has experienced physical and sexual violence should not be forced to come forward simply because the parties’ marriage (or relationship) is ending, and they wish to divorce.[15]

Accepting the plaintiff’s arguments, the BC Court held that a plaintiff is not required to advance their tort claims as part of the family law proceeding. Even if the plaintiff plead facts to support the claim, if they did not claim damages for the tort and there is no final order relating to damages for the tort, they are not barred from advancing those claims later. Further, the court held that the general release clauses in minutes of settlement or separation agreements waiving all claims “arising from” the parties’ marriage or cohabitation does not bar a party from bringing a claim in the future.[16]

Ontario: The issue of Res Judicata and Abuse of Process

 The trio of cases preventing a plaintiff from advancing claims once the family law issues are resolved is likely binding on the Ontario Superior Court; however, there is room for change. In Ahluwalia v. Ahluwalia, when addressing La Forest J,’s obiter in the Supreme Court of Canada’s decision in Frame v. Smith[17] about not provoking lawsuits within a family, Justice Benotto of the Ontario Court of Appeal correctly and helpfully stated:

“[H]e was speaking of an issue for which there was a direct statutory remedy. More importantly, in the 36 years since Frame was decided, society, the legislature, and the courts have come to recognize the reality of intimate partner violence and the need to condemn it.”[18][emphasis added]

In the 25 or more years since this original trio of cases in Ontario were decided, society, the legislature and the court’s understanding of intimate partner violence has clearly changed[19] – it’s time to change this antiquated precedent in Ontario too.

In 1982, the Federal/Provincial Task Force on the Uniform Rules of Evidence eliminated the doctrine of recent complaint in sexual assault cases, recognizing the law was no longer relevant given societies’ understanding of sexual assault in modern times:

“The expectations of medieval England as to the reaction of an innocent victim of a sexual attack are no longer relevant. A victim may have a genuine complaint but delay making it because of such legitimate concerns as the prospect of embarrassment and humiliation, or the destruction of domestic or personal relationships. The delay may also be attributable to the youth or lack of knowledge of the complainant or to threats of reprisal from the accused. In contemporary society, there is no longer a logical connection between the genuineness of a complaint and the promptness with which it is made.”[20]

The same reasoning should be used here. The doctrines of res judicata and abuse of process are not appropriate when used to require survivors of sexual and physical violence in an intimate relationship to advance claims on the breakdown of their relationship. I urge the legislature in Ontario and Ontario Courts to recognize the antiquated, harmful and highly problematic nature of these cases, and revise the law and rules around advancing claims for spousal violence on the breakdown of a relationship.  

[1] Ontario Limitations Act, 2002, SO 2002 c. 24 Sched B., s. 16(h)

[2] Ontario Limitations Act, 2002, SO 2002 c. 24 Sched B., s. 16(h.1)

[3] Ontario Limitations Act, 2002, SO 2002 c. 24 Sched B., s. 16(h.2)

[4] See Tashjian, S., Goldfarb, D., Goodman, G., Quas, J., & Edelstein, R. (2016). Delay in disclosure of non-parental child sexual abuse in the context of emotional and physical maltreatment: A pilot study. Child Abuse & Neglect, 58, 149–159. https://doi.org/10.1016/j.chiabu.2016.06.020; Ahrens, C., Stansell, J., & Jennings, A. (2010). To tell or not to tell: the impact of disclosure on sexual assault survivors’ recovery. Violence and Victims, 25(5), 631–648. https://doi.org/10.1891/0886-6708.25.5.631; Layman, M. J., Gidycz, C. A., & Lynn, S. J. (1996). Unacknowledged versus acknowledged rape victims: Situational factors and posttraumatic stress. Journal of Abnormal Psychology (1965), 105(1), 124–131. https://doi.org/10.1037/0021-843X.105.1.124

[5] McCann v Barens, 2023 BCSC 2000 (CanLII)

[6] I could only locate one article commenting on McCann v. Barens:  https://canliiconnects.org/en/summaries/93091

[7] Maynard v. Maynard, 1950 CanLII 3 (SCC); [1951] SCR 346, at para. 32

[8] Patterson v. Antonucci, [1988] O.J. No. 1004 (Ont. SC HCJ), at paras. 8-12; I.A. v. RHS, [2000] O.J. No. 481 (ONSC),  at paras. 10 & 42

[9] G. (M.H.) v. B. (R.J.), 2021 ONSC 2467, at para. 30

[10] I.A. v. RHS, [2000] O.J. No. 481 (ONSC), 

[11] McCann v. Barens,  2023 BCSC 2000, at paras. 44-48.

[12] McCann v. Barens,  2023 BCSC 2000

[13] I.A. v. RHS, , [2000] O.J. No. 481 (ONSC); Patterson v. Antonucci, [1988] O.J. No. 1004 (Ont. SC HCJ) and Luton v. Luton, 1995 55 ACWS (3d) 648 (OCJ Gen.Div.).

[14] McCann v. Barens,  2023 BCSC 2000, at para 26.

[15] McCann v. Barens,  2023 BCSC 2000, at paras. 60 & 61

[16] McCann v. Barens,  2023 BCSC 2000, at para. 45-48,64

[17] Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99

[18] Ahluwalia v. Ahluwalia, 2023 ONCA 476, at para. 44

[19] Notably, these decisions predate the amendments to the limitation periods for sexual and physical violence in the Ontario Limitations Act.

[20] R. v. D.D., 2000 SCC 43, at para 62, citing the Federal/Provincial Task Force on Uniform Rules of Evidence.  Report of the Federal/Provincial Task Force on Uniform Rules of Evidence, Toronto:  Carswell, 1982