The Tort of Family Violence Overturned
A Case Study on Ahluwalia v Ahluwalia, 2023 ONCA 476
By Tanya Thakur, BC Family Lawyer
In Ahluwalia v Ahluwalia, 2022 ONSC 1303, the Ontario superior court recognized a new tort of family violence and awarded the respondent mother $150,000 in compensatory, aggregated, and punitive damages. The father appealed that decision, and the case was reviewed by the Ontario court of appeal, who concluded that creating a new tort of family violence was unnecessary because victims of family violence can claim damages under existing torts. In this blog, we will explore the concept of 'torts' and discuss the existing legal options available to victims of family violence. We will also delve into the intricacies of this pivotal case, examining both the trial decision and the subsequent appeal.
What are tort claims?
Tort claims are civil claims where a plaintiff alleges a breach of duty owed by another party for causing the plaintiff harm. This means that if someone has a legal responsibility to avoid causing you harm and fails to do so, you can file a lawsuit against them to seek compensation for any resulting injuries or damages. For instance, if someone were to threaten you with physical violence and you genuinely feared for your safety, you could file a tort claim for assault against that person for failing in their duty not to cause you emotional or physical harm.
While the Family Law Act in BC and the federal Divorce Act deal with family law issues like family violence, protection orders, parenting issues, and support claims, it's important to note that civil law also provides avenues to seek compensation for a wrongdoing. Specifically, the civil right to sue someone for harm caused by their violent conduct, alongside these family law statutes.
Existing Tort Claims for Victims of Family Violence
Victims of family violence, who are initiating or responding to family law proceedings, have the option to bring forward tort claims in certain circumstances. In BC, tort and family law claims can be combined and brought together in the same proceeding if it is in the BC Supreme Court. Those who bring forward a tort claim can receive a monetary award for damages for their injuries if they succeed in court. On the other hand, in Alberta, family and civil claims cannot be brought forward together in the same proceeding. If you're in Alberta, you must apply for both the family law claim and the tort claim separately and notify the court of any active, concurrent actions.
There are several tort claims that apply to spousal relationships where there is family violence, which may include:
- Assault - apprehension of imminent harmful or offensive conduct.
- Battery - physical interference with a plaintiff that would be harmful or offensive to a reasonable person.
- Intentional infliction of emotional distress - flagrant and outrageous conduct calculated to harm and cause the plaintiff to suffer a visible and provable illness.
Definition of Family Violence under the Divorce Act
Amendments to the Divorce Act were announced by the Canadian Parliament in 2019 and took effect in 2021. These amendments include a statutory definition of 'family violence,' as provided below:
“Any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct:
- physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
- sexual abuse;
- threats to kill or cause bodily harm to any person;
- harassment, including stalking;
- the failure to provide the necessaries of life;
- psychological abuse;
- financial abuse;
- threats to kill or harm an animal or damage property; and
- the killing or harming of an animal or the damaging of property.”
The Ontario Superior Court Decision
In Ahluwalia, Justice Mandhane concluded that the husband had subjected his wife to both emotional and financial abuse over a span of sixteen years. This pattern of coercive control included tightly controlling the family's finances, closely monitoring his wife's spending, pressuring her for sex, and threatening to leave her and their children without any financial support. Additionally, the husband engaged in physical violence against his wife on three separate occasions, acts that included punching, slapping, and strangling.
The superior court found that the marriage was beyond “unhappy” or “dysfunctional”, it was violent. As noted at paragraph 5 of the decision, spousal support awards under the Divorce Act are not designed to compensate for family violence. Section 15.2(5) of the Act even prohibits considering 'misconduct' when determining such support. Given the unique and severe circumstances of this case, Justice Mandhane found that the mother was entitled to a tort remedy that would properly account for the extreme breach of trust by the father's violent behavior, bringing a degree of personal accountability to his actions.
The court used the Divorce Act's definition of 'family violence' as a basis for outlining the components of this new tort. A specific legal test was formulated in paragraph 52 of the ruling, setting out what a plaintiff would need to prove on a balance of probabilities to establish the tort of family violence, namely:
“Conduct by a family member towards the plaintiff, within the context of a family relationship, that:
- is violent or threatening or,
- constitutes a pattern of coercive and controlling behaviour or,
- causes the plaintiff to fear for their own safety or that of another person.”
The court acknowledged that, although the amendments to the Divorce Act recognize family violence, it fails to “…create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence.”
Drawing from general principles of tort law, the court justified the need for a specialized tort aimed at addressing family violence. The reasoning was as follows:
“ 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. These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the 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. For example, the tort of intentional infliction of emotional distress requires showing that a specific interaction or behaviour was “flagrant and outrageous” and resulted in injury. In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.”
The husband appealed Justice Mandhane’s decision arguing that a new tort of family violence was not necessary, and the damages awarded were too high. Among other arguments, the husband asserted that the tort of family violence opened the “floodgate of litigation” in the context of family law.
In her response, the wife argued that the tort of family violence was necessary because existing torts do not address the cumulative pattern of harm caused by family violence. In the alternative, the wife sought recognition of the ‘tort of coercive control’ in the context of an intimate relationship that would include emotional and psychological harm, financial abuse, social isolation, intentional damage to property, deprivation of necessities of life, or micro-regulation of daily activities. Such tactics would be patterned, repeated, and often integrated into everyday life, magnifying and accumulating harm. The wife sought to recognize coercive and controlling conduct that, cumulatively, was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm.
Ultimately, the Ontario court of appeal overturned Justice Mandhane’s decision, declining to recognize the tort of family violence. The court recognized that the husband’s conduct established a tort claim but reduced the damages award to $100,000.
Justice Benetto, writing for the unanimous court, argued that existing tort laws were sufficient for addressing the harm caused by family violence. She disagreed with the notion that these laws couldn't capture the ongoing, cumulative harm of coercive and controlling behavior. Justice Benetto pointed out that existing torts such as assault, battery, and intentional infliction of emotional distress already account for patterns of abuse in spousal relationships, citing instances where courts had awarded higher damages based on a series of abusive incidents, even when individual incidents might not have been sufficient to establish a tort on their own.
The court agreed with Justice Mandhane that the relative recent addition of family violence considerations in the Divorce Act reflects Parliament’s awareness of and concern about the devastating effects of family violence on children. However, the court of appeal clarified that Justice Mandhane may have misapplied the legislative intent as it was primarily intended to guide the development of post-separation parenting plans, rather than to create a new cause of action in tort law.
In considering the mother’s application, the court declined to recognize the ‘tort of coercive control’ because it would eliminate the requirement to establish proof of harm and visible and provable injuries. The court stated that the existing ‘tort of intentional infliction of emotional distress’ offered adequate remedy and allowed for consideration of the context and pattern of behaviour.
Declining to eliminate the requirement for proof of injury, the court expressed concern about causing “significant change in the jurisprudence with unknown, potentially far-reaching and unintended effects – particularly in the context of family litigation.” The court cited the movement towards a non-adversarial and resolution-oriented approach in family law, which aims to reduce conflict and incentivizes greater cooperation between family members after separation. The justices were cautious of inadvertently encouraging fault-based allegations by lowering the conduct threshold for establishing a tort claim, thereby undermining the non-adversarial system in place.
The rejection of the tort of family violence may be disappointing for many survivors of family violence. However, the court of appeal recognized that patterns of abusive behaviour and the context in which the behaviour occurs are relevant considerations under existing torts. However, the tort of family violence required the consideration of impugned conduct within the context of a family relationship. The Ontario court of appeal decision may leave survivors with the difficult remedy of pleading a patchwork of torts that do not require explicit consideration of the context in which the violence occurs and the harm that follows from the breach of trust.
Understanding the complexities of domestic violence in family law cases isn't something to be deferred to 'one day'— it's an essential step in safeguarding your rights and securing justice. From navigating the legal terrain in both BC and Alberta to making sense of recent case law, our expert team can guide you every step of the way. Don't let confusion or fear hinder your pursuit of fair compensation and emotional relief. Schedule your free 20-minute consultation with a Crossroads family lawyer today!