In an unexpected and precedent setting decision, an Ontario Superior Court judge established a new tort. In the recent case of Ahluwalia v. Ahluwalia, 2022 ONSC 1303, Justice Renu Mandhane ordered a man to pay his former spouse $150,000 in damages for the physical and psychological abuse she endured over their 17-year marriage, in addition to the payments imposed to support the family’s financial situation.
The new tort of family violence established by Justice Mandhane in this decision is meant to address the aggregate impacts of abusive marriages and family violence. Her Honour felt that the uniquely harmful aspects of family violence were not adequately captured in existing torts. Existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize.
The parties were married in India before immigrating to Canada. Their marriage was traditional, with duties and responsibilities defined along gender lines. They had two children together.
The parties became permanently separated in 2016. The mother and children remained in the home, while the father continued to pay for the maintenance expenses. The father commenced an Application in August 2016, seeking joint parental decision-making, weekend parenting time, sale of the matrimonial home, and property equalization.
The mother filed her Answer, recounting specific incidents of physical violence in 2000, 2008, and 2013, and an overall pattern of emotional abuse and financial control. The father denied any physical abuse, claiming that they had “normal” disagreements and verbal arguments.
At the conference, the Court granted the mother leave to deliver an Amended Answer. In her Amended Answer, the mother added a new claim for “general, exemplary and punitive damages for the physical and mental abuse suffered by the Respondent at the hands of the Applicant”. The mother argued that the incidents of physical violence, coupled with the father’s coercive and controlling behaviour, caused her mental and physical harms for which she claimed damages. However, she did not plead the specific torts of assault, battery, or intentional infliction of emotional distress.
In his Amended Reply, the father denied the mother’s family violence allegations. However, on September 7, 2021, the father was charged with the two counts of assault against the mother, and one count of uttering threats to cause death. Both charges relate to events during the course of the marriage.
Prior to this decision, victims of family violence had three ways of seeking remedy:
- Applying to a court for a family law protection order which would restrict the offending party from causing more immediate harm;
- Filing a police report against the offending party so that the Crown prosecutor might proceed with criminal charges against the offending party; and
- Suing the offending party in civil court using the existing torts of assault or battery.
The torts of assault and battery are rarely pursued in the context of family law cases, as they do not usually fit well with family law matters and there is longstanding authority suggesting their use in that context is inappropriate.
Recent amendments to the Divorce Act explicitly recognize the devastating, life-long impacts of family violence on children and families. However, Justice Mandhane noted that the legislation did not consider all the legal issues raised by a family violence claim, and did not explicitly provide a remedy for it.
Since the Divorce Act of Canada specifically prohibits a Judge from considering any history of spousal misconduct when determining the appropriate amount of spousal support, Justice Mandhane opined that “allowing a family law litigant to pursue damages for family violence is a matter of access to justice.”
At trial, Her Honour found that there is a need for the tort of family violence for cases where there was “a long-term pattern of violence, coercion and control.”
At paragraph 54, Justice Mandhane stated that:
While the tort of family violence will overlap with existing torts, there are unique elements that justify recognition of a unique cause of action. I agree with the Mother that the existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse.
The Tort of Family Violence:
Victims of violence, coercion and/or control must prove that the offending party:
- Intended to engage in violent or threatening behaviour;
- Engaged in behaviour that was calculated with a pattern of coercive and controlling behaviour; or
- Caused the victim to fear for their safety or the safety of another person knowing with substantial certainty that their behaviour would cause the victim to be subjectively fearful.
Once any of the three elements are proven, the offending party may be liable for such tortious acts of family violence. The definition of family violence under the new tort is in line with the Divorce Act, in that physical violence is not a requirement. The tort of family violence can also be claimed if there is emotional abuse.
Our understanding of trauma and how it impacts the lives of those who suffer from it, is a continually evolving matter. As our knowledge and understanding broadens, so should the laws which seek to govern this aspect of familial relationships.
While this decision may be an important step toward protecting victims who have suffered long-standing violence at the hands of family members, we must remain live to the issue that the recognition of this new tort may open the floodgates for abuse allegations in the family law context. We understand that this decision may be under appeal to the Court of Appeal, and we look forward to watching the further developments involving this new tort of family violence unfold.