After five years together, the parties in McCann v. Barens 2023 BCSC 2000 separated on Sept. 15, 2015, and Shaune Barens obtained a protection order against his wife, Jennifer McCann, on Sept. 23, 2015. The protection order was renewed on Sept. 29, 2015, when McCann failed to attend the follow-up hearing.
However, the parties reconciled in early 2016 when McCann agreed to pursue treatment and attend marriage counselling. The protection order was cancelled on Feb. 9, 2016, and the parties continued in their marriage until May 2018, when Barens advised his wife that he wanted a divorce.
In September 2018, McCann sought orders for exclusive possession of the family home and a protection order. The court granted her possession of the home and made reciprocal no-contact orders against each of them. McCann’s evidence in support of the orders sought included allegations of sexual, emotional, and financial abuse, including a violent rape that led to her hospitalization. She also admitted that she had mental health and alcohol abuse issues that pre-dated her relationship with Barens that had intensified due to stress and the alleged abuse she suffered.
A year later, the parties agreed to attend mediation to resolve the issues arising from the end of their marriage and entered into an agreement that finalized the division of property and included McCann’s waiver of spousal support. The parties had no children.
The parties were divorced in January 2020 and their agreement was incorporated into a consent order that included the following term: “By consent: Any other claims by either party arising from their marriage or their cohabitation will be and are hereby dismissed as if there had been a trial on the merits (the “Release”).”
But that was not the end of litigation between the parties. In August 2022, McCann filed a notice of civil claim alleging that Barens had engaged in a pattern of violent, coercive, and controlling behaviour, including long-term physical, emotional, psychological, and financial abuse, commencing in about 2011. She also alleged multiple specific incidents of sexual abuse.
Barens responded with an application seeking to dismiss the tort action as an abuse of process. Alternatively, he sought an order dismissing her action as disclosing no genuine issue for trial. His arguments included that McCann was seeking to re-litigate issues that were raised in the family law action, invoking the doctrine of res judicata, and he also relied on the release clause in the consent order as a bar to her claims.
The chambers judge noted that Barens relied on three Ontario cases in support of his application, which the court identified as the “central dispute,” requiring the court’s analysis of whether the cases, albeit not binding on the court, remained “good law and ought to be followed” in British Columbia.
The court reviewed each of the cases, noting that there were parallels between each of the cases and the case before the court: Anderson v. Spence [2000] O.J. No. 481 (Ont. SC); Patterson v. Antonucci [1988] O.J. No. 1004 and Luton v. Luton 1995 55 ACWS (3d) 648 (CJ Gen.Div.).
In Anderson v. Spence, the parties settled their family law dispute pursuant to minutes of settlement. Later, the wife brought a claim in tort for family violence based on allegations she had previously raised in the family action. The husband argued that her tort claim was barred by the doctrine of res judicata. The court agreed, citing Henderson v. Henderson (1843) 67 ER 313 (Eng, V.C.):
…[W]here a given matter becomes the subject of litigation in, and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forth as part of the subject of the contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time.
In Patterson v. Antonucci, the parties resolved their family law issues by way of minutes of settlement, following an earlier court appearance where the wife swore an affidavit alleging family violence. With the settlement in hand, the husband filed for an uncontested divorce, which was met by his wife’s counter-claim seeking damages for assault. The court struck her counter-claim, finding that to permit it to proceed was an abuse of process when she had made the same underlying factual allegations previously.
Finally, in Luton v. Luton, the wife commenced family law proceedings, which included an application for interim relief wherein she alleged physical abuse. The parties settled their case with a separation agreement which included a comprehensive release clause. Several years later, the wife commenced a tort action seeking damages for assault and battery. The court ruled that her claim was statute-barred. The court also held that the release clause in the agreement was sufficient to bar her claim and further, that a single cause of action cannot be split to make several causes of action, citing the allegations she had raised in her previous affidavits, and finding that the assault claim ought to have been dealt with in the family action.
McCann urged the court to reject the authorities relied on by her former spouse, arguing that each of the cases were dated and reflected antiquated reasoning and stereotypical attitudes towards sexual assault and domestic violence, including how victims of violence are supposed to behave.
The court also considered well-established principles emanating from the doctrine of res judicata, observing that claims that are res judicata are encompassed by the concept of abuse of process and may properly be struck pursuant to Rule 9-5(1) of the Supreme Court Civil Rules.
The court then reviewed the criteria for cause of action estoppel and issue estoppel, the two avenues available in a res judicata defence. In respect of cause of action estoppel the court noted that there must be a final decision of the court, the parties in the subsequent litigation must have been parties in the prior action, the new cause of action and the prior cause of action must not be separate and distinct, and the basis of the new cause of action and subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.
The three preconditions to the operation of issue estoppel are whether the same question has been decided in earlier proceedings, whether the previous order was final and whether the parties were the same in both proceedings. Noting that res judicata is available in respect of a consent order, the court was not persuaded that McCann’s claim was barred by res judicata, finding that the tort issue raised by McCann was not pleaded in the family law proceeding and no final order was made in respect of it. The court acknowledged that McCann relied on allegations of family violence in her application for exclusive possession of the family home, but noted they were collateral issues to her interlocutory application.
The court also concluded that there was no evidence that the parties intended the agreement, the consent order, or the release clause to bar a separate tort claim, distinguishing the release clauses found in the agreements in the three Ontario cases and rejecting the Ontario line of reasoning.
Barens’ application was dismissed.
**This article was previously published by LAW360, a publication of LexisNexis Canada.
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