The Court of Appeal for Ontario ruled that allegations and evidence of intimate partner violence are not appropriately dealt with via summary judgement.
In Malamas v. Wey, 2026 ONCA 133, Justice Michael Tulloch concluded that a lower court judge had erred, in part, when he provided summary judgment dismissing claims brought by Konstantina Malamas in light of the allegations and evidence of intimate partner violence by her former husband, Ebhard Way. Tulloch concluded that, given such allegations, the matter would be more appropriately dealt with at a trial.
Tulloch’s decision suggests that Ontario courts continue to move in a positive direction when it comes to understanding the complex effects of intimate partner violence ipv, and that such complex and nuanced issues are difficult to be adequately addressed via summary judgement.
In this blog post, I will first summarize the decision of the lower court then I will examine the Court of Appeal’s reasoning in determining a genuine trial is required to decide certain questions.
A House Thought to Be a Matrimonial Home.
Eberhard promised his fiancée, Konstantina, that his parents, Guenter and Ingrid Wey, planned to purchase a home for the couple in advance of their marriage.
Malamas, who was employed full-time and had her own savings, said she accepted his proposal because she understood the home to be a gift for the couple. Eberhard had informed her that his name would be placed on title.
Although acknowledging in a cross-examination that his fiancée had “no reason to distrust either him or his parents at that time,” the home was purchased in Eberhard’s parents’ own names. He admitted to knowing that Konstantina was not on title, and neither he nor his parents ever disclosed this information to her.
After the couple moved into the home, Eberhard physically abused Konstantina and at least one of the couple’s two children. Eberhard admitted to physically assaulting Konstantina on multiple occasions during the marriage and to placing his hands around their nine-year-old daughter’s neck and throwing her to the ground.
A few weeks after Konstantina reported Eberhard’s assaults to the police in 2016, he sent her a letter from his parents’ lawyer stating they were sole owners of the property and directing her to vacate the premises by early autumn.
Konstantina was shocked to learn she was being directed to leave a home she thought belonged to her as well as her husband. Facing a challenging financial and emotional situation, Konstantina remained in the home. Konstantina alleges Eberhard threatened to burn the house down with her inside if she pursued a claim against the property and warned her that he “might hurt the kids” if he became too angry.
In August 2017, Konstantina agreed to a consent order with the Weys, consenting to receive a $50,000 cash payment, interim child support payments, and terms restricting Eberhard’s access to the children. In exchange, Konstantina agreed, among other things, to vacate the family home.
Claim For Damages.
In August 2022, Konstantina brought an action against the Weys for financial deception, seeking damages for financial losses, including the loss of the family home, and for emotional harm. Konstantina alleged that violence and abuse, combined with financial deception, intensified the emotional harm she suffered.
The Weys then moved for summary judgment – a judicial procedure that permits a judge to rule on all or part of a claim/defence without proceeding to trial for those matters – contending the action was barred by statutes of limitation, precluded by res judicata, and constituted an abuse of process by contravening the consent order. Justice Sosna accepted the Wey’s arguments, dismissed the action, and ordered Konstantina to pay the Weys $27,000 in costs.
Konstantina appealed this decision, arguing that Justice Sosna erred by failing to adequately account for the allegations and evidence of intimate partner violence when conducting his analysis of limitations, res judicata, and abuse of process.
Decision on Appeal.
Justice Tulloch, in citing R. v. Bérubé (1999), 1999 CanLII 32756 (NB CA), noted that courts have an established obligation to be “particularly attentive” to the ramifications of spousal and family violence on the issues before it. Justice Tulloch stated:
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.
Justice Tulloch also noted that the courts have recognized that intimate partner violence can involve patterns of conduct and may produce psychological and economic impacts.
Against the backdrop of intimate partner violence, Justice Tulloch outlined how five of Konstantina’s allegations could bear on the issues assessed in the motion for a summary judgment:
1. Eberhard’ violence and threats were part of a broader pattern of conduct that affected Konstantina’s circumstances and decision-making. (Tulloch cites R. v. Kormendy, 2019 ONCA 676 (CanLII), to note that intimate partner violence may involve efforts to control or intimidate a person.)
2. The alleged harms extended beyond physical injury, to include fear, trauma, financial insecurity, and alleged financial control. (Tulloch cites Michel v. Graydon, 2020 SCC 24 (CanLII), [2020] 2 SCR 763 at paragraphs 85-86, which affirms that these effects can persist over time and influence decision-making, including delays in asking for child support.)
3. The alleged violence, threats, and financial conduct are interconnected and contribute to an environment where fear of harm is perpetual rather than solely linked to individual incidents. (Tulloch cites Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII), at paragraphs 91-92, which notes that “recurring and ongoing abuse, intimidation, domination and financial abuse exist can be patterned into daily life.”)
4. Alleged violence and related conduct, occurring within the context of an intimate relationship, including alleged threats connected to housing circumstances has been found to have “particular legal and factual significance, including where it affects a party’s security, autonomy, or living arrangements.” (Tulloch cites R. v. Brown, 1992 ABCA 132 (CanLII), at paragraph 21, which notes that the vulnerability of abused people is “increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape.”)
5. Caregiving responsibilities for children who were allegedly exposed to violence could have factored into decisions about pursuing a claim. (Tulloch cited Barendregt v. Grebliunas, 2022 SCC 22 (CanLII), [2022] 1 SCR 517, at paragraph 143, which considers children’s exposure to intimate partner violence as having the potential to cause significant developmental and psychological consequences).
What Does This Appeal Tell Us?
There has been significant progress in recent decades in educating courts about the complex effects of intimate partner violence, how it influences a survivor’s decision-making, and how real or perceived threats of violence may bear on a survivor’s civil claim.
There is a growing body of caselaw which provides guidance on how to apply legal principles when addressing intimate partner violence.
Konstantina’s appeal of the summary judgment succeeded, in part, because the lower court’s decision did not adequately account for allegations and evidence of intimate partner violence. A successful appeal does not mean that Konstantina’s claim will be decided favourably in a trial; however, it is an acknowledgement that allegations and evidence of intimate partner violence warrant a comprehensive, nuanced assessment.
If you or a loved one has been subjected to intimate partner violence, and you would like to know about your right to seek compensation for damages and other paths to justice, please contact me for a no cost, no obligation initial consultation. With the empathy and understanding that comes from being a trauma-informed lawyer who specializes in sexual abuse and assault, I will gladly assist you in any way I can as you retake control of your life.