In Ahluwalia v. Ahluwalia, 2022 ONSC 1303, Justice Mandhane of the Ontario Superior Court of Justice writes about the tort of family violence. In this case, the parties disputed four issues. The four issues were: “property equalization, child support, spousal support, and the Mother’s claim for damages in relation to the Father’s alleged abuse during the marriage”.
In the groundbreaking decision, Justice Mandhane writes at paragraph 4: “On the most contentious issue, the Mother’s claim for damages, I am prepared to award $150,000 in compensatory, aggregated, and punitive damages for the tort of family violence. I recognize that making such a significant damage award is well-outside the normal boundaries of family law.” The marriage was violent. The damages suffered cannot be compensated through spousal support. The Divorce Act prohibits family violence from being compensated through an award of spousal support. In light of recent trends and current research, it is important that our law recognizes the tort of family violence. Family violence is a social issue that has been criminalized. There needs to be a corresponding civil remedy.
In the case of Ahluwalia, the parties met in India. They married after a brief courtship. They later immigrated to Canada around 2001/2002. In 2016, the parties separated. The children both eventually stopped speaking to the father. In the case, the Mother detailed years of abuse.
At the time of pleadings, “[t]he Mother claimed that the Father was physically and mentally abusive throughout the marriage. She recounted specific incidents of physical violence in 2000, 2008, and 2013, and an overall pattern of emotional abuse and financial control”. The Father denied it. He said that they had normal disagreements.
On March 17, 2021, the Mother amended her Answer and claimed 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 three incidents of physical violence, coupled with the Father’s coercive and controlling behaviour, caused mental and physical harms for which she should be compensated in damages. She essentially pled the tort of family violence; she did not plead the specific torts of assault, battery, or ion of emotional distress”.
In deciding that there is a tort of family violence, Justice Mandhane notes that “allowing a family law litigant to pursue damages for family violence is a matter of access to justice. It is unrealistic to expect a survivor to file both family and civil claims to receive different forms of financial relief after the end of a violent relationship”.
Justice Mandhane noted the following in recognizing this new tort:
- A tort arises when there has been a breach of a recognized legal duty and where it is appropriate to claim for damages. (para 49)
- There is emerging case law from several U.S. states recognizing a tort framed along these lines of “battered women’s syndrome”. (para 51)
- With 2021 reforms to the Divorce Act, Parliament has explicitly recognized the devastating, life-long impact of family violence on children and families. (para 43)
To define the modes of liability underlying the new tort of family violence, the proper starting point is the definition of “family violence” found in s. 2 of the Divorce Act. Based on this statutory definition, to establish liability on a civil standard, the plaintiff must establish:
Conduct by a family member towards the plaintiff, within the context of a family relationship, that:
1. is violent or threatening, or
2. constitutes a pattern of coercive and controlling behaviour, or
3. causes the plaintiff to fear for their own safety or that of another person.(para 52)
- 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 (para 54)
- To establish “family violence,” the plaintiff will have to plead and prove on a balance of probabilities that a family member engaged in a pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or killing or harming an animal or property. It will be insufficient to point to an unhappy or dysfunctional relationship as a basis for liability in tort. (para 55)
Justice Mandhane’s recognition of the tort of family violence is important. Scientific research on trauma and how it impacts our lives is evolving. As our knowledge evolves, so should our laws.
(This article was originally posted on Slaw.ca).