Absolutely fascinating Canadian case which raises a number of interesting issues as to how English law should deal with these issues too. I think this paragraph in the underlying judgment is particularly interesting.
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That’s a very interesting question to which I do not know the answer. I wonder how many actions under that there have been? Very few cases turn up, and the first one I identified commented on how obscure it was.
Of course, in England, we get round most of these problems in two ways. Firstly the Matrimonial Causes Act 1973 does not appear as strict as the Canadian Divorce Act in excluding (mis)conduct from consideration in these types of cases; although there is lively debate about how far it should go.
Secondly, we have the statutory tort under the Protection from Harassment Act 1997 which covers a lot of the ground where the older common law torts (e.g. assault / trespass to the person) are ineffective.
Though I suppose it is interesting to think whether the civil powers under Part 3, Domestic Abuse Act 2021 should have been more civil in nature (i.e. made on application to the Family rather than Magistrates’ Court) and be a full tort rather than a behaviour order.
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