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The Ontario Superior Court of Justice recently considered the appropriate amount of damages to award in a divorce matter involving both invasion of privacy and domestic violence allegations.

What Happened?

The parties in question were married in September 2010, and had one child in October 2011. The wife left the husband in April 2012 and pressed charges with the police, claiming that he had assaulted her. She took the child and moved in with her parents. The parties reconciled in April 2013, and split again in January 2014, when the wife once again left the husband due to alleged emotional and physical abuse. The husband filed for divorce in March 2014.

In October 2014, the wife found a camera hidden in a keychain on the dresser in her bedroom. During the divorce proceedings, she claimed damages for invasion of privacy as well as damages related to the alleged assaults by her husband, seeking $50,000 in damages for invasion of privacy and $5,000- $20,000 for the assault and battery in 2012.

Invasion of Privacy or Intrusion Upon Seclusion

In a groundbreaking decision in 2012, the Court of Appeal recognized the new tort (i.e. wrongful act) of invasion of personal privacy, calling it “intrusion upon seclusion”.

Invasion of privacy occurs where someone “… intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns”. The “intruder” is “…subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.”

The three elements that must be established to prove invasion of privacy are:

  1. The defendant’s conduct must be intentional or reckless;
  2. The defendant must have invaded the plaintiff’s private affairs without legal justification;
  3. A reasonable person would consider the invasion highly offensive causing “distress, humiliation, or anguish”.

Damages for invasion of privacy will vary depending on the specific facts at hand. In determining what an appropriate damages award is, a Court may consider:

  1. The “nature, incidence and occasion” of the wrongful act;
  2. The effect on the wrongful act on the health or financial position of the plaintiff;
  3. Whether any relationship (domestic or otherwise) exists between the parties;
  4. The level of distress or embarrassment suffered by the plaintiff as a result of the wrongdoing;
  5. The conduct of both parties (before and after the wrongdoing), including whether any apology was made.
The Husband’s Position

At trial, the husband claimed that the relationship changed after the couple’s reconciliation in 2013. He alleged that he had installed the hidden camera because he was “concerned about his own security” and wanted to “protect himself” after the wife allegedly falsely accused him of assault in 2012. He was concerned that she would make another false accusation, and therefore planted the camera in her bedroom surreptitiously. He argued that no damages should attach to his actions.

The Wife’s Position

The wife claimed that the camera was placed in such a location that it captured both her bedroom and adjoining bathroom. Both of these areas were “personal”, and it was “highly offensive” for the husband to have breached her privacy in this way.

Further, she pointed to the fact that the husband had lied about installing the camera during the initial discovery phase of the proceedings, and only admitted to planting the camera during cross-examination at trial (at which time he also admitted to lying the first time he was asked about the camera).

Additionally, she argued that the husband’s “protection excuse” made no sense, since there were no other cameras installed, which technically meant that he could still have assaulted her in another room in the house or out of view of the camera.

The Court

Justice Fragomeni was ultimately satisfied that the wife had successfully made out a claim for invasion of privacy by the husband:

  • The husband had lied repeatedly under oath at discovery;
  • The husband finally admitted at trial that he had secretly planted a camera in the bedroom;
  • The husband’s explanation for why he planted the camera “makes no sense”- if his intention had been to protect himself from a false allegation of assault, he would have had to place cameras in all of the rooms in the house;
  • The camera had a view of the bedroom and the bathroom;
  • Both the bedroom and the bathroom “are very private rooms”; while the footage the husband gathered did not show anything explicit or embarrassing, it could have;
  • The wife was embarrassed and shocked by the camera;

The Court awarded the wife $15,000, but ordered no additional punitive or aggravated damages. The Justice’s reasoning was that:

  • The privacy interests of the wife due to the placement of the camera were “significant”;
  • The intrusion of privacy took place within the context of a domestic partnership;
  • The husband’s conduct in lying about the camera and in attempting to blame the wife for allegedly creating a need for him to use a camera to protect himself was “extremely aggravating” and demonstrated “a lack of any insight into what he did as being wrong”;
  • While the wife claimed she had been embarrassed and shocked at the breach of her privacy, she provided no medical information in support of any significant effect this may have had on her health or well-being;

Assault and Battery

The wife testified about the events that led her to press charges against her husband in April 2012. She claimed that while they were arguing, he grabbed her face and she told him to let go because he was hurting her. She claims that he then grabbed her left arm, called her “dumb” and “stupid” and told her that she “did not have the guts to call 9-1-1”. The police report that the wife filed in April 2012 claimed that she had advised the police that she had been so fearful that she had taken son and gone to her parent’s home in Brampton.

The Court

In making a determination about the wife’s assault allegations and request for damages, Justice Fragomeni considered a number of similar cases and noted that recent decisions had awarded between $5,000 and $20,000 in general damages in such instances.

Importantly, the Justice noted the differences between assault and battery:

A person who “intentionally causes a harmful or offensive contact with another person is liable for battery”

…A battery may occur even when no harm is intended. The only intention required is that of making contact.

In contrast:

Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault provides protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs. The underlying policy of the tort of assault, like that of battery, is the reduction of violence. Because threatening to inflict harm is apt to attract retaliation in the same way as causing harm, it must also be discouraged by tort law.

Assault should be distinguished from battery, although the two are often blurred together and called “assault”. This does not usually matter very much because in most cases both assault and battery are committed in rapid succession. If a battery occurs, the assault tends to be ignored since the quantum of damages for it will be rather small. An assault can be committed without a battery and battery can occur without an assault preceding it. For example, swinging at someone and missing is an assault but not a battery; striking someone from behind, without his or her knowledge, is a battery but not an assault.

Conduct which intentionally arouses apprehension of an imminent battery constitutes an assault.

In this instance, Justice Fragomeni was satisfied that the wife had established that the husband had committed battery. Moreover, the husband’s credibility was seriously damaged by his repeated lies under oath, and therefore his version of events was not accepted by the Court.

In determining the proper level of damages to award the wife for the battery, Justice Fragomeni considered that her injuries had not been “significant” but that they had occurred within the context of a domestic relationship, concluding that the “low end” of the range of applicable damages was fair and reasonable.

The wife was awarded $5,000.

Lessons Learned

If you are dealing with domestic violence in your marriage, take all necessary steps to protect your safety and the safety of your children. Once you do so, you can focus on your legal rights. As the Judge noted in this case, damages have been awarded in divorce proceedings to spouses who have been subject to violence from their spouse.

Damages can also be awarded where spouses engage in non-violent, but invasive behavior such as breaching their spouse’s privacy rights.

If you have questions about your spouse’s conduct, contact the family lawyers at Gelman & Associates to learn how our experienced team can help protect your rights. Our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation. We have six offices throughout Ontario for your convenience.

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