LAWYER INSIGHTS
Our sexual assault and abuse lawyers share their insights to help you move forward.
Justice After Trauma: What The Evans v. CCAST Decision Means For Survivors
Madeleine Cleland’s latest blog covers Evans v. The Catholic Children’s Aid Society of Toronto et al. The jury awarded $2.3 million, recognizing the lasting effects of trauma. She explains what this case means for survivors seeking accountability.
If you are a survivor of childhood sexual abuse, you may wonder whether the legal system can still help you — especially if the abuse happened many years ago. The recent decision in Evans v. The Catholic Children’s Aid Society of Toronto shows that justice is possible, even decades later.
This case is a powerful example of how survivors can be heard, believed, and compensated through our civil court system.
Background
Diane Evans was sexually abused between 1956 and 1962 by her mother’s live-in boyfriend, Peter Kaczmarczyk. In her lawsuit, she alleged that the Catholic Children’s Aid Society of Toronto (CCAST), which was involved with her family at the time, failed to protect her. Ms. Evans sued both the Estate of Mr. Kaczmarczyk who had died, and the CCAST.
What the Court Awarded
After a 20-day jury trial, the jury found both defendants legally responsible and awarded Ms. Evans over $2.3 million in damages.
Against the Estate of Mr. Kaczmarczyk and the CCAST, jointly, the jury awarded:
$400,000 for pain and suffering (also known as general and aggravated damages),
$940,000 for lost income due to the long-term impact of the abuse, and
$50,000 for future counselling and mental health support.
Against Mr. Kaczmarczyk’s estate, only, the jury awarded:
$1,000,000 in punitive damages to send a strong message of condemnation.
The joint award of $1,390,000 means Ms. Evans can collect the full amount owing from either the CCAST or the Estate of Mr. Kaczmarczyk. The $1 million punitive damages award made solely against the Estate means Ms. Evans can collect this amount only from the Estate.
Why This Case Matters
If you are a survivor of childhood sexual abuse — even if it happened many years ago — you may still have legal options. This case shows that:
You can still come forward: There is no time limit to bring a civil claim for sexual assault in Ontario.
You can be believed: Courts and juries are increasingly recognizing the realities of trauma and delayed disclosure.
You can be compensated: Damages can include pain and suffering, lost income, therapy costs, and more.
Reach Out
Our legal team has decades of collective experience working on behalf of survivors of sexual assault and understands the courage it takes to come forward. We are here to listen, support, and guide you through the legal process with compassion and respect.
If you are considering a civil claim or want to learn more about your rights, please contact us for a free and confidential preliminary consultation. We are here to help you take the next step toward healing and justice.
Contact MADELEINE Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
Civil Jury Speaks: Historic Sex Abuse, Institutional Negligence, Ends With $2.3M Verdict In Evans v. CCAST
In her new blog, Civil Jury Speaks: Historic Sex Abuse, Institutional Negligence, Ends with $2.3M Verdict in Evans v. The Catholic Children’s Aid Society of Toronto et al., Madeleine Cleland examines the Court’s reasoning on punitive damages, joint and several liability, and the role of prejudgment interest in high-value cases.
On October 9, 2025, the Ontario Superior Court of Justice released its post-verdict reasons in Evans v. The Catholic Children’s Aid Society of Toronto et al., 2025 ONSC 5652, upholding the jury verdict that awarded over $2.3 million to a survivor of historical childhood sexual abuse.
This decision is a significant development in civil sexual assault litigation and offers valuable guidance for lawyers navigating historical abuse claims, institutional liability, and potentially high-value damages.
Case Overview
After a 20-day jury trial, the jury found both the individual and the organizational defendants liable and awarded Ms. Evans over $2.3 million in damages, as follows.
Against the Estate of Mr. Kaczmarczyk and the CCAST jointly, the jury awarded:
$400,000 for general and aggravated damages,
$940,000 for loss of income due to the long-term impact of the abuse, and
$50,000 for future counselling and mental health support.
Against Mr. Kaczmarczyk’s Estate only, the jury awarded:
$1,000,000 in punitive damages, sending a strong message of condemnation.
Key Legal Issues and Takeaways for Counsel
1. Amending the Claim Post-Verdict
Justice Callaghan allowed the plaintiff to amend her claim to reflect the jury’s award, applying Rule 26.01 of the Ontario Rules of Civil Procedure. The decision reaffirms that amendments post-verdict are permissible unless they cause non-compensable prejudice.
The court relied on Hill v. Church of Scientology[1], emphasizing that a jury’s award exceeding the pleaded amount does not, in itself, constitute prejudice. The Estate’s objections — focused on the lack of a punitive damages range provided to the jury — were dismissed as tactical choices made by all parties.
Practice Point: Counsel should not hesitate to seek amendments post-verdict to align pleadings with jury findings. This case supports an approach that prioritizes substantive justice over technical pleading limits.
2. Punitive Damages Against a Deceased Defendant
The Estate sought to set aside or reduce the punitive damages award, raising the following arguments:
1. The defendant is deceased, and therefore punitive damages serve no purpose since specific deterrence is no longer possible.
2. Prior criminal proceedings and bail conditions constituted sufficient punishment.
3. The award was excessive and out of step with precedent.
4. The award punishes the heirs to the Estate.
Justice Callaghan rejected all three arguments, finding:
Punitive damages serve broader purposes than punishing the individual wrongdoer. They also aim to deter others and express societal condemnation of egregious conduct. These objectives remain valid even when the perpetrator is dead.
Prior criminal proceedings were insufficient. Although Kaczmarczyk was charged, he was never convicted, and the case never went to trial. Bail conditions alone do not constitute punishment or public denunciation.
The award was proportionate to the severity of the abuse. Testimony from the defence expert Dr. Phillip Klassen, a psychiatrist, described the abuse as the worst case of child sexual assault he had encountered. The jury clearly accepted the plaintiff’s account and the expert’s assessment. Justice Callaghan referenced Hill v. Church of Scientology, where a jury awarded $800,000 in punitive damages in 1992 ($1.5 million in 2025 dollars) upheld through multiple appeals, as a precedent for allowing substantial awards when warranted.
The award does not punish the Estate’s heirs; it compensates the victim. Heirs are only entitled to the residue of an estate after debts are paid.
The Court found no basis to interfere with the jury’s punitive damages award, reinforcing the role of such awards in cases of extreme misconduct.
Practice Point: This decision confirms that high punitive damages awards can be made posthumously and in historical abuse cases, even where the perpetrator was charged criminally and involved in criminal proceedings.
3. Joint and Several Liability
CCAST sought to avoid joint liability, arguing its negligence should not be equated with Kaczmarczyk’s intentional misconduct. The Court disagreed, affirming that under Ontario’s Negligence Act, concurrent tortfeasors — including those liable in connection with intentional torts — can be held jointly and severally liable.
Practice Point: Institutional defendants — such as child protection agencies, schools, or religious organizations — can be held jointly and severally liable alongside individual perpetrators, even when their conduct differs in nature (e.g. systemic negligence vs. intentional abuse). This principle is especially critical in cases involving institutional omissions or failures to protect, where the institution's inaction contributes to the harm. In such cases, jury apportionment of fault does not limit the plaintiff’s recovery. As affirmed in Evans v. CCAST, a plaintiff may recover the entire award from any one defendant, regardless of the jury’s apportionment of liability. The right to full recovery is preserved under Ontario’s Negligence Act, leaving defendants to resolve contribution and indemnity among themselves.
4. Prejudgment Interest (PJI)
The Court awarded prejudgment interest from June 1992, when the plaintiff first sought therapeutic assistance. Despite defence arguments about delay and financial hardship aimed at reducing the rate of PJI and having it run from the date the claim was served (2019) or the date the plaintiff learned that the defendant had won the lottery and decided to reengage (2010), the Court upheld the presumptive (in Ontario) 5% rate for non-pecuniary damages and 2% for pecuniary damages.
The resulting PJI awards were substantial:
$660,000 for general and aggravated damages, and
$318,833.46 for past income loss.
Practice Point: In historical sexual assault cases in Ontario, the point from which prejudgment interest runs and the rate to be applied are often points of contention amongst the parties. In this case, we see the date of therapeutic disclosure being used to establish when the cause of action arose for interest accrual purposes, even where thought the plaintiff had confronted her perpetrator 30 years earlier in 1964 and started her action in 2019. Counsel should come prepared with supporting evidence and case law to argue this issue because prejudgment interest can significantly increase the amount of the award, in this case resulting in far more than the $2.3 million in damages.
Why This Case Matters for Lawyers
Evans v. CCAST is a precedent-setting case that will shape future litigation involving:
Historical sexual assault claims
Institutional negligence
High-value punitive damages awards
Complex apportionment and liability issues
Survivors with delayed disclosure and therapeutic timelines
If you are counsel to a client considering a civil claim for historical abuse, or if you are seeking co-counsel with experience in trauma-informed litigation and complex damages advocacy, I welcome referrals and collaboration.
At Lerners LLP, we have the depth of experience and resources to handle these cases with the sensitivity and strategic rigour they require.
[1]Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.
Contact MADELEINE Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
Prosecuting Civil Tort Claims In The Context Of Family Proceedings Following The Ahluwalia Onca Decision
Courts are recognizing psychological harm caused by intimate partner violence in civil tort claims. Erika Tower & Madeleine Cleland discuss how to limit effects of trauma & myths around IPV on credibility of survivors in family law trials.
This article was updated on April 2, 2025, and originally published by Law360 Canada, part of LexisNexis Canada Inc.
Since the Ontario Court of Appeal decision in Ahluwalia v. Ahluwalia[1] (“Ahluwalia”), in which the creation of a new tort of family violence was rejected as unnecessary because existing torts are sufficient, there has been some uncertainty about how civil claims arising from intimate partner violence (“IPV”) and abuse should be dealt with in the context of family law proceedings. This is not the last word on the tort of family violence, as the Supreme Court of Canada has granted leave to appeal the ONCA decision. Regardless of the final outcome in Ahluwalia, issues surrounding how to most effectively and efficiently prosecute civil tort claims in the context of family proceedings will remain a live issue.
As the ONCA stated in Ahuluwalia:
“Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.”[2]
It is clear based on the pervasiveness of IPV, and the developing law in response, that we will continue to see an increase in the number of civil tort claims being pursued by survivors of IPV, particularly once the relationship ends and family law proceedings are initiated. In the recent decision Barreto v. Salema[3] (“Barreto”), Justice Susan Vella of the Ontario Superior Court of Justice provides useful guidance on how these cases should be approached, and valuable insight into how they will be viewed and assessed by the Court.
Factual Background in Barreto
Ms. Barreto (the “Wife”) and Mr. Salema (the “Husband”) were married in 2003 and separated in 2020, with no children of the marriage. A 9-day hybrid trial of the family law and tort matters proceeded before Justice Vella in January and February 2024. The family law issues to be decided included divorce, spousal support, and disposition of the matrimonial home. Also at issue were tort claims raised by the Wife, which included intentional infliction of emotional distress, breach of public disclosure of private facts and of confidence, assault and battery.
The term “gaslighting” was used by the Wife to describe the Husband’s pattern of behaviour which included secretly communicating to her family in India that she was violent, abusive, mentally ill and suicidal. The Husband also had a pattern of telling the Wife that she was the one who abused him, and that he only used force against her to protect himself from her physical abuse of him and to stop her from self-harming. Justice Vella adopted the “gaslighting” terminology as a descriptive term only.
Preliminary Considerations and Framework
In setting out the framework for her decision, Justice Vella confirmed, as in Ahluwalia, that where family and civil proceedings are heard together, the trial judge should start with a determination of the financial claims arising from the marriage, specifically beginning with any of those arising from statute, before assessing damages for the tort claims. This sequence considers that statutory entitlements may inform the damages arising from the IPV-related tort damages assessment.
Justice Vella accordingly begins by considering the family law claims raised by both the Wife and the Husband, the findings of which are largely irrelevant for the purpose of this article. Turning next to the civil claims, Justice Vella first provides guidance on how to approach credibility assessments in claims involving IPV and then addresses a number of dangerous myths about IPV that must be dispelled.
Regarding the credibility assessment, Justice Vella adopted “the framework outlined in Faryna v. Chorny[4] and developed in subsequent cases, recognizing that trauma can impact one’s ability to recount the traumatic incidents.”[5] Her Honour also highlighted the importance of corroborating evidence from witnesses and contemporaneous documentary evidence.
The myths about IPV that Justice Vella said must be dispelled include:
The partner did not leave the relationship until now, and therefore there was no abuse or mistreatment;
The partner must have consented to the offensive treatment because she/he/they did not leave the intimate relationship;
The partner did not complain to anyone in authority, his/her/their family or others of the offensive treatment or abuse and therefore it did not happen; and
The partner did not behave in a certain manner in response to the alleged abuse or mistreatment and therefore cannot be believed.[6]
Liability Analysis
With these considerations in mind, Justice Vella assessed the evidence presented by both sides and found the Wife’s version of events to be more believable than the Husband’s. The Wife called witnesses who corroborated her version of events (family members, friends, therapist) and produced contemporaneous documentary evidence to support her claims (texts, emails, etc.).
The trial judge did not find the Husband to be a credible or believable witness — his versions of events were vague and inconsistent. The trial judge also drew an adverse inference against the Husband — who neither called the witnesses that he claimed supported his version of events, nor provided an explanation for this decision. The adverse inference was that these potential witnesses would not have supported his evidence even if they had testified at trial.
Ultimately, Justice Vella found that the Wife satisfied the elements of the tort of assault, battery, and intentional infliction of emotional distress. However, her claim for public disclosure of private facts was dismissed because the allegations under this tort were better addressed by intentional infliction of emotional distress.
Damages
Justice Vella began her damages assessment by reviewing the general function of general and aggravated damages and the factors to be considered in determining the appropriate quantum.[7] It is acknowledged that damages arising from claims of IPV have been historically low, but “the courts’ recognition of the insidious harms by IPV is evolving much like it did with respect to civil sexual assault claims, which were originally very modest but have evolved considerably.”[8] Accordingly, Justice Vella states that reference to civil sexual assault damages awards is helpful as a guide because in both types of cases, “the dominant harms experienced generally tend to be psychological and accompanied by a betrayal of trust.”[9] Justice Vella cites the range of non-pecuniary/general damages for adult-on-adult sexual assault set out in Zando v. Ali[10] of $144,000 to $290,000 in 2017 dollars, which provides a useful general framework for how to assess psychological impacts committed within a betrayal of trust.[11] Inflation adjusted to 2024 dollars, the range is $177,357.80 to $357,178.90.
Applying this range to the case at bar, Justice Vella concluded the appropriate general damages award in the case before her was $150,000, $50,000 of which she attributed to aggravated damages in recognizing the “pattern of psychological manipulation perpetrated over a lengthy time by a spouse resulting in a profound betrayal of trust.”[12] Although the Husband argued that the Wife's current psychological symptoms, disorders and effects were caused by childhood abuse, it was found that the harms established by the Wife were solely as a result of the Husband’s abusive conduct. Justice Vella also noted, in reference to the childhood abuse, that the Wife “showed her resilience to any adverse impacts that mistreatment may have had by excelling in university and her job as a psychologist prior to her marriage.”[13]
A punitive damages award was made against the Husband in the amount of $10,000, having regard to “the compensation awarded, the reprehensible nature of the misconduct perpetrated, the prevalence of IPV […], the lack of remorse, and the means of Mr. Salema.”[14] Notably, this award for punitive damages incorporates the principle of deterrence by accounting for the “prevalence of IPV” in general.
We note that in Zunnurain v. Chowdhury[15], another decision involving civil tort claims in the context of family law proceedings which released shortly after Barreto, Justice Agarwal awarded $200,000 in damages to the Wife for assault, battery, and intentional infliction of mental suffering, $175,000 of which was for compensatory and aggravated damages and $25,000 for punitive damages. This award is in line with Justice Vella’s comments about the appropriate range of damages in these cases.
Other Key Takeaways
The following are other key takeaways from Justice Vella’s lengthy and comprehensive decision in Barreto:
The importance of expert evidence regarding harms to achieve higher general damages awards: Although it is not necessary to lead expert evidence of a psychiatric disorder to prove psychological harm, expert evidence will make it much easier to establish a higher general damages award. The Wife called an expert psychologist who diagnosed her with Post-Traumatic Stress Disorder (PTSD), agoraphobia and Major Depressive Disorder. At the trial, the psychologist testified that the Wife’s mental health disorders and symptoms were caused by the IPV she suffered at the hands of the Husband. Justice Vella’s damages award in Barreto was $150,000, compared to the $100,000 award in Ahluwalia, which Her Honour explains is distinguishable based on the fact that in Ahluwalia “no expert medical or psychological evidence was led to support the spouse’s claim for damages.”
Limitations Act defences can be overcome in the context of civil claims arising from IPV and abuse: Claimants can rely on the discoverability principle for claims of intentional infliction of emotional distress, and the exception in 16(1)(h.2) of the Limitations Act for claims relating to physical assault and battery which states that there is no limitation period for assault claims if, at the time of the assault, the claimant and the person who committed the assault had “an intimate relationship.”
In order for any tort claim to be considered by the Court, the torts themselves and their requisite elements must be pleaded: Although there was an incident of a sexual nature referenced at trial, Justice Vella declined to consider sexual assault, as it was not in the Wife’s pleading. However, as the requisite elements of the torts of assault and battery were pleaded, an order was made replacing the initially pled non-existent tort of family violence, with the proper existing torts of assault and battery.[16]
Additional Issues to Consider
Many family lawyers oppose or are critical of joining or hearing together civil tort claims for damages arising from IPV and abuse within family law proceedings. This is likely largely because the family law framework has much less arduous discovery obligations than civil proceedings and has systems in place to ensure that family law claims move forward as quickly as possible. There is also a strong movement towards a more collaborative approach to family law claims. Civil claims, in contrast, come with much broader documentary and oral discovery obligations imposed by the Rules of Civil Procedure, tend to move along more slowly, and are often highly adversarial by nature.
In our experience so far working on cases where civil tort claims and family law issues are being joined or heard together, the advantages outweigh the disadvantages. The most significant benefit is the ability for civil damages to be paid out of the family property and assets. For example, in Barreto, Justice Vella ordered that the payment of damages would be deducted from the Husband’s share of the net sale proceeds from the matrimonial home. Typically, the biggest challenge when pursuing civil claims against individuals for torts arising out of IPV and abuse is that there is no easy way to satisfy a judgment for damages. Family court proceedings not only provide for disclosure of assets and property, something one is not entitled to in a civil court proceeding, but also a forum in which a set-off can take place to account for damages and pre-judgment interest on these damages when tort claims are found to have merit.
An additional challenge to consider going forward is how to reconcile family law claims for spousal support with civil claims for income loss, as there is obvious overlap, and double recovery must be avoided. In Barreto, Justice Vella made it clear that the “income replacement component” of the Wife’s claim was “adequately compensated by virtue of the spousal support claim awarded.”
What’s Next?
Family and civil lawyers alike who act for survivors of IPV, as well as those who defend these claims, anxiously await the outcome of the appeal of Ahluwalia to the Supreme Court of Canada. Given that the Court has now set out in Barreto how to practically apply the existing torts to these cases, we expect that the SCC will likely uphold the ONCA’s decision to reverse the trial judge’s decision creating a new tort of family violence.
Regardless of whether the SCC decides there is or is not a separate tort of family violence, lawyers and the courts need to be prepared to deal with the “epidemic” of IPV in our society. There is a need for informed discussion about the many legal issues that this problem present, and we call for Continuing Legal Education on the issues that brings together family and civil lawyers and judges, so these issues can be better and more efficiently and consistently navigated. There is similarly an overlap between criminal and civil court proceedings when dealing with sexual and physical forms of abuse and harassment, which has already been extensively considered and addressed by courts and lawyers alike.[18] Now it is time — if not overdue — for the same dialogue to take place between the family and civil bars and benches.
See our blog post here for a refresher on the ONCA decision ahead of next year’s SCC hearing in Ahluwalia, tentatively set to be heard the week of February 10, 2025.
Our civil sexual abuse and assault team frequently consults with and assists family lawyers and survivors of IPV in navigating civil tort claims arising from IPV and abuse in the context of family law proceedings. Please feel free to reach out for a consultation if you would like more information.
[1] 2023 ONCA 476, leave to appeal to SCC granted, 41061 (May 16, 2024).
[2] Ibid. at para. 1.
[3] Barreto v. Salema, 2024 ONSC 4972.
[4] [1952] 2 D.L.R. 354.
[5] Barreto, supra note 3, at para. 161.
[6] Barreto, supra note 3 at para. 166.
[7] Barreto, supra note 3 at paras. 432-434.
[8] Barreto, supra note 3 at paras. 436-437.
[9] Ibid at para. 440.
[10] 2018 ONCA 680.
[11] Barreto, supra note 3 at paras. 440-441.
[12] Ibid at para. 448.
[13] Ibid at para. 429.
[14] Ibid at para. 452.
[15] 2024 ONSC 5552.
[16] Barreto, supra note 3 at para. 156.
[17] Barreto, supra note 3 at para. 444.
[18] See, for example, “Criminal v. Civil: How the Criminal Process Can Impact a Parallel Civil Process” by Elizabeth Grace.
Contact Lerners Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today, and let us help you and your family.