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Hammerco Lawyers successfully argued against a dismissal of a civil sexual assault action on the basis that a release signed in a divorce proceeding did not prevent the plaintiff from subsequently bringing a claim for sexual assault that arose during the marriage.

Mr. Barens and Ms. McCann had been married, but Mr. Barens sought a divorce in 2015. In the course of the family law proceedings, Ms. McCann alleged that Mr. Barens had been “sexually, emotionally and financially abusive.”

In 2016, the parties attended a mediation and resolved the family proceedings. Following settlement, the parties entered into a consent order which included a release of all claims “arising from their marriage” (the “Release”).

Several years later, Ms. McCann, now the Plaintiff, brought a lawsuit against her former husband for sexual and physical assault that occurred within the course of marriage. The ex-husband applied to have her claim dismissed on the basis that she was barred from bringing such a claim due to the Release that had been previously signed.

The Defendant argued that the matter had been dealt with in the context of the family proceedings and was therefore res judicata (a matter judged).

To support his argument, the Defendant cited three historic cases that reflect outdated reasoning and stereotypical, misogynistic attitudes towards sexual assault and domestic violence, including how those who experience it ought to behave.

The Plaintiff pointed out that although issues of sexual violence had been raised in the family proceedings, no claim for damages was brought at that time. The Plaintiff also argued that the effect of the arguments made in the cases that the Defendant was relying on was to force a person who experienced sexual violence to litigate their claim in the context of family proceedings. This is contrary to the principles behind the removal of the limitation period for claims for sexual assault.

The Plaintiff argued that “a person who has experienced physical and sexual violence should not be forced to come forward simply because the parties’ marriage is ending and they wish to divorce.”

Justice Douglas agreed with the Plaintiff’s arguments and found that the Release only applied to claims arising from the parties’ marriage and cohabitation, not claims of sexual or physical violence.

This is an important decision because it protects the ability of individuals who have suffered violence within a marriage to resolve the separation or divorce proceedings without barring them from bringing a future claim relating to assault that occurred within the marriage.

Perpetrators of sexual or physical violence are also now unable to shield themselves from liability simply by including a general release clause in their divorce or separation agreements. That said, specific attention must be paid to the language of any settlement or release in family proceedings. If you have questions, please give us a call. 

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