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Civil Litigation Cases - Intimate Partner Violence (IPV)
COMMENT
'Intimidate partner violence' has recently established itself as a wide-ranging civil procedural doctrine which can have a party-relieving (usually plaintiff) effect on a range of legal principles and on the assessment of evidence.
It can occur in express statutory regimes [eg. Limitations Act s.16(1)(h.3),(1.3) ('No limitation period - assault - intimidate relationship')] and as well in any doctrine which allows for it's discretionary application, including:- Abuse of Process (as an exception to the re-litigation bar);
- Cause of Action Estoppel (as an exception to the re-litigation bar), and
- generally in evidence law.
CASES
. Malamas v. Wey
In Malamas v. Wey (Ont CA, 2026) the Ontario Court of Appeal partially allowed a plaintiff's appeal, here brought against a summary judgment order "dismissing the appellant’s action" and involving "allegations and evidence of intimate partner violence".
Here the court considered (and illustrates) the important role of allegations of 'intimate partner violence' in civil procedure, and it's potential party-relieving (usually plaintiff) effect on a range of legal principles and the assessment of evidence:[24] This section proceeds in three steps. First, I outline the judicial obligation to be “particularly attentive” to the ramifications of intimate partner violence on the issues before the court: R. v. Bérubé (1999), 1999 CanLII 32756 (NB CA), 215 N.B.R. (2d) 341 (C.A.), at para. 21. Second, I explain what that approach entailed on this record. Third, I turn to the motion judge’s error in failing to apply that approach on the summary judgment motion.
a. Particular Attentiveness to Intimate Partner Violence
[25] The courts have recognized that allegations and evidence of intimate partner violence may be relevant to the adjudication of civil claims and to the application of procedural doctrines. In R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at p. 872, the Supreme Court acknowledged the legal significance of such violence and its effects.
[26] Where allegations of intimate partner violence are raised on the record, courts must consider them where they are relevant to the issues before the court. This includes assessing whether they bear on the factual context in which claims arose or on the application of doctrines such as limitations, res judicata, or abuse of process. A failure to engage with relevant evidence may constitute an error warranting appellate intervention: Dunmore v. Mehralian, 2025 SCC 20, 503 D.L.R. (4th) 686, at para. 73; Shipton v. Shipton, 2024 ONCA 624, 5 R.F.L. (9th) 17, at paras. 35-41.
[27] The jurisprudence further recognizes that intimate partner violence may involve patterns of conduct and may have consequences beyond individual incidents, including psychological and economic effects. These considerations may form part of the broader factual matrix relevant to the issues in dispute: see R. v. Bates (2000), 2000 CanLII 5759 (ON CA), 146 C.C.C. (3d) 321 (Ont. C.A.), at para. 30; Ahluwalia v. Ahluwalia, 2023 ONCA 476, 167 O.R. (3d) 561, at paras. 91-92, leave to appeal granted and appeal heard and reserved February 11-12, 2025, [2023] S.C.C.A. No. 529.
[28] Allegations of this nature must be assessed based on the evidentiary record and the applicable legal principles, without reliance on assumptions or generalizations: Lavallee, at pp. 872-73; K.M.N. v. S.Z.M., 2024 BCCA 70, 98 R.F.L. (8th) 275, at para. 122. For instance, courts have cautioned against assuming that only physical violence is serious, that victims always leave promptly or disclose immediately, or that abuse merely reflects “high conflict” relationships or relationship breakdown: R. v. Finnessey (2000), 2000 CanLII 16862 (ON CA), 135 O.A.C. 396 (C.A.), at para. 16; Lavallee, at pp. 871-73; R. v. Kormendy, 2019 ONCA 676, 147 O.R. (3d) 701, at paras. 58-60.
b. Approaching this Case with Particular Attentiveness
[29] In this case, proper consideration of the appellant’s claims required engagement with the allegations and evidence of intimate partner violence to the extent that they were relevant to the issues raised on the summary judgment motion. The following discussion identifies aspects of the record and governing legal principles which bear on that assessment. This discussion is not intended to resolve disputed facts. Rather, it is meant to explain why the allegations and evidence of intimate partner violence formed part of the context relevant to the motion judge’s analysis.
[30] First, the appellant’s evidence includes allegations that the violence and threats attributed to Eberhard formed part of a broader pattern of conduct that affected her circumstances and decision-making. In Kormendy, this court recognized that intimate partner violence may involve efforts to control or intimidate a partner: at paras. 57, 60-61. On this record, the appellant alleges physical assaults, threats directed at her and the children, and related conduct. These allegations are not findings of fact. However, they form part of the evidentiary context relevant to assessing whether there are genuine issues requiring a trial, including whether the appellant was realistically able to advance civil claims at earlier stages.
[31] Second, the record contains evidence of alleged harms extending beyond physical injury, including fear, trauma, financial insecurity, and alleged financial control. The jurisprudence recognizes that intimate partner violence may have psychological, economic, and relational effects that persist over time: see Dunmore, at para. 57; R. v. Fraser, 2016 ONCA 745, 33 C.R. (7th) 205, at para. 30; Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at paras. 85-86, 95, per Martin J. (concurring). Whether these alleged harms are established is a matter for trial. However, at the summary judgment stage, the analysis must take into account the possibility that such circumstances may bear on the issues raised.
[32] Third, the appellant’s theory is that the alleged violence, threats, and financial conduct formed part of an interconnected course of conduct. Courts have recognized that intimate partner violence may involve multiple forms of conduct occurring over time, rather than isolated incidents: Bates, at para. 30; Ahluwalia, at paras. 91-92. These principles are relevant to assessing the evidentiary record and determining whether the claims can properly be resolved on summary judgment.
[33] Fourth, the appellant alleges that the violence and related conduct occurred within the context of an intimate relationship and its breakdown, including allegations of threats connected to her housing circumstances. The jurisprudence recognizes that violence within intimate relationships – especially when it occurs within the home – may have particular legal and factual significance, including where it affects a party’s security, autonomy, or living arrangements: R. v. Brown, 1992 ABCA 132, 73 C.C.C. (3d) 242, at para. 21; R. v. Cunningham, 2023 ONCA 36, 166 O.R. (3d) 147, at para. 34.
[34] Fifth, the record also includes evidence relating to the appellant’s caregiving responsibilities for children who were allegedly exposed to violence. The Supreme Court has recognized that children’s exposure to intimate partner violence may have significant developmental and psychological consequences: Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at paras. 143, 147. Evidence relating to caregiving responsibilities and their effects may be relevant to assessing the appellant’s circumstances during the relevant period. The appellant’s position is that these circumstances affected her ability to pursue civil claims at earlier stages. This submission is not determined on this appeal. However, it forms part of the factual context relevant to whether there are genuine issues requiring a trial.
c. Application
[35] I turn to whether the motion judge properly considered the appellant’s claims against Eberhard in light of the evidentiary record and the applicable legal principles. In my view, the failure to account for the context of intimate partner violence which I have described above affected the assessment of the limitations defence and the application of res judicata and abuse of process. As a result, those issues could not properly be resolved on summary judgment on this record.
[36] I acknowledge that the motion judge provided detailed reasons and addressed many of the arguments raised by the parties. He also took steps appropriate to ensuring that the self-represented appellant was able to present her position.
[37] However, the motion judge did not address the allegations and evidence of intimate partner violence in assessing the procedural doctrines relied upon by the respondents. In particular, his characterization of the pressures faced by the appellant following the breakdown of the relationship as “not uncommon” did not account for that evidence or its potential relevance. This omission affected the analysis of the limitations defence and the application of res judicata and abuse of process. A failure to consider relevant evidence may constitute an error in principle warranting appellate intervention: Dunmore, at para. 73; K.M.N., at paras. 83, 106-108.
[38] When the allegations and evidence of intimate partner violence are considered, there are genuine issues requiring a trial in relation to the application of the Limitations Act, 2002, and the doctrines of res judicata and abuse of process. As discussed below, that evidence forms part of the factual context relevant to those issues. In these circumstances, the record does not permit their final determination on a motion for summary judgment: Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429, 141 O.R. (3d) 81, at paras. 85-87, 92, citing Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 51.
[39] I also note that the appellant’s pleadings do not set out her claims arising from intimate partner violence with precision. This issue does not preclude the present disposition but will require clarification if the matter proceeds to trial. I return to this point below.
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