Suing your abuser.

• Author: Boll, Rosemarie

One legal concept that we left behind last century was the idea that spouses couldn't sue each other in tort. Before 1970, if a person assaulted a stranger, the victim could sue the wrongdoer for damages, but if the victim were the spouse, he or she could not. We called this concept "spousal tort immunity." It stemmed from an old legal fiction that husband and wife are "one person" so neither could sue the other for wrongs during the marriage. Over the past 30 years, society's awareness of domestic violence increased and the unfairness of this concept was obvious to all. All the Canadian common law provinces responded by 1994 and abolished the concept.

Suing your abuser in tort can provide valuable financial and emotional relief. Even when there are also criminal charges laid, the victim often feels she or he has more control over and involvement in a civil suit. Certainly, for abused children, civil proceedings can work to make an abuser publically accountable. A spouse who misses work because she's been injured can ask her abuser to pay her for her lost wages, for her medical expenses, and for general damages for her pain and suffering. If the abuser's conduct is severe enough, the victim can ask for additional punitive (also called exemplary) damages, specifically to punish the abuser and deter such future conduct.

But obtaining vindication through the court system comes at a cost. The lawsuit is usually highly stressful. It can be complicated and expensive. Already fragmented family relationships may disintegrate further as the litigants call on other family members to take sides. Starting an action may spark retaliatory litigation - "If you sue me for assault, I'll sue you for defamation." Joining a domestic violence claim with a divorce or matrimonial property action may wipe out the possibility of settlement.

If you're considering bringing a tort action for injuries you received from a family member, keep the following points in mind:

* If you're successful, can the wrongdoer pay the damages? Is it possible that the wrongdoer has insurance coverage? (Generally there is no homeowner's insurance coverage where the act is intentional, but you might be able to frame your case in negligence.)

* Do you qualify for a payment from your provincial criminal injuries compensation board?

* Watch your limitation periods for starting your action - different rules apply to children, to adult survivors of child sexual abuse, and for...