In Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (CanLII), the Ontario Superior Court of Justice affirmed a new common law tort of "family violence" as a way to award damages resulting from family violence and abusive domestic behaviour. While such conduct is, unfortunately, an aspect of many family disputes, there was no clear avenue for victims to pursue damages as part of family court proceedings prior to this case.
In Ahluwalia, the applicant husband and the respondent wife sought to address various family law issues arising from the breakdown of their marriage, including property equalization, child support, and spousal support. In addition, the wife sought damages in relation to the husband's alleged abuse during their marriage. The wife adduced evidence of mental, emotional, and physical abuse that she had endured throughout the marriage. The wife also argued that her husband had stifled her ability to seek out gainful employment in order to assert his economic dominance and was aggressive towards her attempts to gain any independence.
The husband denied the allegations of family violence or that he was coercive or controlling. He further argued that allowing the tort claim to proceed in a family law case risked the trial process being weaponized and negatively affecting the former spouses' ability to co-parent into the future.
In the Reasons for Decision, the court referenced the 2021 reforms to the Divorce Act, noting that Parliament had explicitly recognized the devastating, life-long impact of family violence on children and families. Accordingly, family violence is relevant to the issue of parenting. However, despite the statutory recognition of financial and psychological abuse, the court noted that family violence could not be compensated through a spousal support award because section 15.2(5) of the Divorce Act prohibits consideration of spousal misconduct when making such an award. As such, spousal support awards are not meant to censure particularly egregious conduct during the family relationship that calls out for aggravated or punitive damages.
Given that the Divorce Act does not provide the victim with a direct avenue to obtain reparations from harms flowing directly from family violence and that go beyond the economic fallout of the marriage, Justice Mandhane accepted that creating the tort of family violence provides for a remedy that properly accounts for "the extreme breach of trust" occasioned by the husband's violence, and that "brings some degree of personal accountability to his conduct."
In addition to spousal support and child support, the court awarded $150,000 in aggravated and punitive damages to the wife, who was found to have experienced a 16-year relationship characterized by a pattern of emotional, mental, and psychological abuse, coupled with an inherent breach of trust.
When it comes to developing new causes of action in tort and expanding liability, trial judges possess the scope to do so where the interests are worthy of protection and the development is necessary to stay abreast of social change. Importantly, even though this particular tort is novel, it appears to be in line with the language of the statutory definition under section 2 of the Divorce Act, which defines "family violence" as the following:
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.
In essence, the decision outlined three means by which a plaintiff can establish that they experienced family violence. Under the first mode of liability, the plaintiff must establish that the family member intended to engage in conduct that was violent and threatening. Under the second mode of liability, the plaintiff must establish that the family member engaged in behaviour that was coercive and controlling. The third mode of liability requires that the plaintiff establish that the family member engaged in conduct that they would know, with substantial certainty, would cause the plaintiff's subjective fear.
Furthermore, for a tort of family violence to be established in a proceeding, 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 necessities of life, psychological abuse, financial abuse, or killing or harming an animal or property.
In the context of damage assessment for family violence, therefore, it is the pattern of violence that must be compensated, not the individual incidents. The tort claim cannot rest on a series of bald assertions but must be particularized using specific examples identifying the pattern of coercive and controlling conduct.
This focus on a more inclusive view of how family violence manifests itself in a pattern of repeated and abusive conduct removes legal barriers facing survivors leaving violent relationships. Further, the court's attempt to address family violence in this way may avoid stereotypical misconceptions as to why survivors of family violence often choose to remain in abusive relationships or fail to complain to the police.
For survivors of family violence or domestic abuse, this new tort may mean an opportunity to present evidence of years of abuse endured throughout the entire course of the relationship during a family law proceeding. This significantly differs from previously limited redress through the tort of spousal battery or intentional infliction of emotional distress, which required the victim to plead compensation for specific, individual incidents. More importantly, by allowing a family law litigant to pursue damages for family violence as part of their already existing family law proceedings, this decision has direct implications for access to justice. Victims may no longer have to pursue both family and civil claims to receive different forms of financial relief or reparations for harms stemming from a violent relationship.
The decision has yet to receive any appellate consideration and whether the new tort becomes an established part of Ontario law remains to be seen. A PDF version is available to download here.
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