Woman assaulted by husband awarded $800K in civil lawsuit. He received an absolute discharge in criminal case

·9 min read
A Supreme Court of British Columbia judge found in a November 2021 civil decision that a man attacked his wife at least three times during a violent incident and that her actions were limited to self-defence. She was awarded $800,000 in damages, a decision that her husband has appealed. (Ben Nelms/CBC - image credit)
A Supreme Court of British Columbia judge found in a November 2021 civil decision that a man attacked his wife at least three times during a violent incident and that her actions were limited to self-defence. She was awarded $800,000 in damages, a decision that her husband has appealed. (Ben Nelms/CBC - image credit)

WARNING: This article contains details of abuse.

A B.C. woman has been awarded $800,000 in damages after filing a lawsuit against her husband for assaulting her in 2018.

The financial award for the 43-year-old woman came in a decision by a judge in the Supreme Court of British Columbia in November 2021 after her husband, 48, pleaded guilty to assault in a separate criminal trial in 2020 and was granted an absolute discharge.

The two decisions highlight differences in how incidents of intimate partner violence are handled in the criminal court system, where the case is brought forward by the Crown prosecution, as opposed to civil court, where the plaintiff, in this case the victim of abuse, can have more control over the evidence brought forward.

A Vancouver women's advocate says the civil court decision is a rare example of a judge ruling so dramatically in favour of a woman bringing forward a complaint of intimate partner violence.

"Women usually do not have what it takes to go to civil court," said Hilla Kerner, a spokesperson for Vancouver Rape Relief and Women's Shelter. She said there is often a lack of physical evidence of the injury and its long-term impact.

The civil decision is a 117-page document that describes the history of the relationship in detail, from how the couple met more than two decades ago to the events of the 2018 attack and their present-day interactions. The criminal sentence, on the other hand, numbers only six pages and summarizes the assault in four paragraphs.

Ben Nelms/CBC
Ben Nelms/CBC

"It was such a striking example of the way that the criminal justice system can filter out and filter down incidents of violence against women in a way that really mutes the voices of women who are victims of that violence," said Janine Benedet, a law professor at the University of British Columbia.

Canadian victims of intimate partner violence have for decades made tort claims in civil court for sexual, physical, verbal and emotional abuse, with awards ranging from $2,500 for an assault that broke a hand to $155,000 for an attack with a shovel handle that resulted in shoulder and head injuries.

The $800,000 award was for physical and psychological damages suffered after the woman's husband assaulted her in September 2018.

According to evidence submitted in the lawsuit, the attack left the woman with a concussion and bruises across her body that prevented her from performing basic tasks like driving and cooking for months.

The sum is due in part to the wages lost by the woman, a director at a high-profile video game company.

CBC has chosen not to name both individuals to protect the identities of the couple's children, which are protected under a court-ordered publication ban.

Children witnessed assault

The civil lawsuit describes in detail a violent incident that occurred on Sept. 16, 2018.

The assault began after the couple — now separated — got in an argument in their kitchen while the woman was preparing breakfast for their two young children, the lawsuit said. The husband grabbed her from behind, restraining her in a bear hug while he kicked at her and struck at her upper body.

The woman struggled to free herself, possibly kicking her husband in the process.

Both parties ended up in the entryway of the house where the woman, fearing another attack, threw her tampon at her husband, the lawsuit said.

The couple went upstairs, where the husband ripped a cellphone out of the wife's hand with such force that it injured her wrist and finger and caused both of them to fall to the floor.

The husband then sat on his wife's back, immobilizing her as he grabbed and turned her head from side to side, striking her with considerable force on each side several times, the lawsuit said.

The attack ended and one of the couple's children dialled 911 and handed the phone to their mother.

In the civil decision published in November 2021, Justice Margot Fleming found that the husband attacked his wife at least three times during the violent incident and that her actions were limited to self-defence.

The judge rejected the husband's version of events — that his wife was the main attacker and he restrained her in self-defence — stating that based on his testimony, she was "firmly of the view that he was dishonest, calculating and cleverly manipulative."

Ben Nelms/CBC
Ben Nelms/CBC

The husband has filed an appeal of the decision in civil court and declined, through his lawyer, to respond to questions from CBC News.

The victim declined to comment because of ongoing custody proceedings, but the personal injury lawyer who represented her in the civil lawsuit agreed to an interview.

"My client, when she read [the] decision, she cried and she cried because finally, the truth had been told," lawyer Bonnie Lepin told CBC News.

"She appreciates the money and she can use that money because she still hasn't been able to work more than 12 hours a week, but it's the justice of that. It was such a relief for her."

Ben Nelms/CBC
Ben Nelms/CBC

Formerly a director at a high profile video game company, the woman was unable to work between September 2018 and May 2019.

Medical experts testified in civil court that the woman sustained a mild traumatic brain injury as a result of the assault and experienced ongoing symptoms including headaches, dizziness, diarrhea, very uncomfortable ear ringing, light sensitivity, poor focus, lack of concentration and PTSD.

The victim testified that chest pain from the attack prevented her from wearing a bra for nearly six months. She also said that she lives in constant fear of her husband, who lives a kilometre away from her and her children.

Absolute discharge

The $800,000 financial award — including $100,000 for non-pecuniary damages, $664,000 for loss of past and future income and more than $20,000 for the cost of future care for her injuries — is a significant sum, said Benedet, whose research focuses on how the criminal justice system deals with violence against women.

"I think it's definitely unusual to see an award of this magnitude," she said.

"Part of it comes from being from a plaintiff who had a significant professional sort of executive career and the loss of ... past and future income that could be attributed to that."

The financial penalty is a contrast to the absolute discharge the husband received in his criminal trial in B.C. provincial court in December 2020.

In the criminal case, the husband — a chief financial officer for a B.C.-based corporation at the time of the incident — pleaded guilty to assault.

The court heard submissions from character witnesses, including the husband's new partner and his sister, who testified that they had never known him to be violent.

While the woman read a victim impact statement in criminal court, her injuries were not considered by the judge during sentencing.

After hearing that the husband had also completed more than 170 hours of counselling and a program in anger management, Justice Reginald Harris concluded that the September 2018 assault was out of character for the husband.

"Specifically, there is no evidence that he struck [his wife] or that he was trying to inflict gratuitous pain, rather, he was protecting himself and trying to retrieve his property and it is in this context that he went too far," wrote the judge in his decision.

Ben Nelms/CBC
Ben Nelms/CBC

Harris dismissed the Crown's submission for conditions to be placed on the husband and granted him an absolute discharge, meaning he will not have a criminal record.

The outcome of the criminal case is concerning to Benedet.

"It's really troubling to see an absolute discharge used in a case of domestic violence and particularly in a case of domestic violence that appears to have involved serious repeated blows to the head," she said.

Benedet said that because the husband pleaded guilty, there was no opportunity for the woman to testify in the criminal case.

In the civil lawsuit, the woman testified about a prior history of abuse and control in the relationship, including attempts by the husband to limit her travel to visit family in Germany, his disapproval of her speaking German to the children and an incident where he attempted to strangle her.

"They're just such textbook examples of serious domestic abuse and they're all absent from the criminal case entirely, which portrays this as just a heated argument where each of them basically gave as good as they got," said Benedet.

Meanwhile, Fleming in the civil trial noted that the husband's controlling, and at times violent, behaviour toward his wife prior to the September 2018 assault was crucial context about the relationship.

She found that he had strangled and punched the woman in late January 2015 and struck her in the back of the head in early February 2016.

Lepin said her client was disappointed by the agreed statement of facts describing the violent incident in the criminal case and felt her input wasn't fully considered by Crown counsel in building the case against her husband.

In an emailed statement to CBC News, the B.C. Prosecution Service responded that "while the complainant is typically engaged in the trial process as a witness, they are not generally involved in the conduct of the prosecution and would not have a say in the composition of court materials."

Ben Nelms/CBC
Ben Nelms/CBC

Lepin believes more women should sue their abusers in civil court because of this lack of control over the criminal court process.

"When there's serious injuries or psychological injuries, which there can't help but being serious psychological injuries along with the physical, we should absolutely sue these people."

Kerner agrees that civil lawsuits are sometimes the only option for women who don't get justice in criminal court.

"For us, as advocates, the monetary compensation is secondary to the fact that we need a judge, or we want a judge to say, 'Yeah, this man has done wrong to this woman,'" she said.

"As a society, we need a mechanism that is denouncing men who commit violent crimes against women."

Kerner said, however, there needs to be a mechanism in place to provide legal aid funding for women to realistically be able to hire a lawyer to sue their abusers.

Different thresholds

The burden of proof in civil trials is much lower than the "beyond a reasonable doubt" threshold needed to convict in a criminal trial.

In a civil trial, the plaintiff's lawyer needs only to prove on a balance of probabilities that the defendant is liable.

But Benedet said the victim does not have the same protections in a civil trial that she would have in a criminal court.

"The woman can be attacked in different ways. She can be portrayed as a gold digger. Her mental health history, her sexual history are potentially fair game."

And if an abuser doesn't have financial resources, there will be no financial award to collect, Benedet said.

Support is available for anyone who has been assaulted. You can access crisis lines and local support services through this Government of Canada website or the Ending Violence Association of Canada database. If you're in immediate danger or fear for your safety or that of others around you, please call 911.

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