The Supreme Court of Canada has recently heard an appeal about whether the Ontario Superior Court should have created a tort of family violence. In Canada, tort law is a type of law that is usually created by judges in courts through their decisions and legal principals but is also codified in statutes. Tort law deals with civil wrong doings that allow individuals to seek different types of remedies, such as monetary compensation. If the Supreme Court of Canada acknowledges a tort of family violence, spouses can be awarded compensation for the violence they experienced during their relationship.
Background and Facts
This important case centers around parties who immigrated to Canada from India sometime in 2000. They were married for sixteen years before separating in 2016. The wife gave evidence of physical violence and a pattern of emotional abuse and financial control that lasted throughout the marriage. In 2021, the Applicant was charged with two counts of assault against the Respondent and one count of uttering threats to cause death. The wife argued she should be compensated for the family violence she endured throughout the marriage.
Ahluwalia v. Ahluwalia, 2022 ONSC 1303
Justice Mandhane of the Ontario Superior Court of Justice awarded the wife $150,000 in compensatory, aggregated, and punitive damages for the tort of family violence. The trial judge acknowledged that the award was well above normal boundaries in family law. The trial judge stated that this particular case was different because the marriage itself was not typical. The husband had a sixteen-year pattern of control over his wife and “it was not just “unhappy” or “dysfunctional”; it was violent.” The trial judge stated the violence is not compensated by spousal support and the Divorce Act itself prohibits the court from considering “misconduct” when awarding spousal support. The judge argued existing torts do not adequately capture the harmful aspects of family violence.
To create this new tort the trial judge relied on the 2021 reforms to the Divorce Act in which Parliament expressly recognized the devasting and long-lasting effects of family violence on families and children. The Divorce Act defines “family violence” as 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. The judge relied on Canada’s international law obligations related to women’s equity, recent provincial legislation that removed legal barriers facing survivors leaving violent relationships, case law related to spousal battery, and developments in American caselaw. The trial judge also viewed recognition of the new tort as in line with Canada’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”).
How to establish family violence?
The judge broke down a test to determine family violence. The accusing party will have to prove on a balance of probabilities (aka that it was more likely than not) “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.” The party alleging family violence will need to use specific examples. A party cannot simply rely on a pattern of behavior.
Once the party has proven that family violence occurred, the court will need to look at the nature of the violence such as “circumstances, extent, duration, and specific harm” to assess damages. “Aggravated damages may be awarded for betrayal of trust, breach of fiduciary duty, and relevant post-incident conduct. Punitive damage awards will generally be appropriate given the social harm associated with family violence.”
Ahluwalia v. Ahluwalia, 2023 ONCA 476
The father appealed the decision. The Court of Appeal determined that creating a new tort was unnecessary and the trial judge erred by creating a new tort that was “not required here”. The Court of Appeal stated long-term, harmful patterns of conduct that are designed to control or terrorize are found in existing jurisprudence such as “battery, assault and intentional infliction of emotional distress.”
The Court of Appeal disagreed with the trial judge’s approach to use the definition of “family violence” to create a new tort. The definition of family violence was “created for the specific purpose of post-separation parenting plans” therefore the judge ignored the true intentions of the legislature.
Conclusion
The Supreme Court of Canada heard submissions in February of this year. The decision may take some time, but the court will make the ultimate decision on whether the tort of family violence should be recognized.
If you have questions about this, or any other family law matter, please contact a member of our Family Law Practice Group for a consultation
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Cassandra Drake Partner | Family Law Vancouver |
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Regina Vdovina Lawyer | Family Law Langley |
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.