In a 2022 Ontario Superior Court of Justice decision Ahluwalia v. Ahluwalia,1 Justice Mandhane created a new tort of family violence.
Facts
The parties married in November 1999 and separated in July 2016. This marriage was anything but typical. Rather, it was characterized by abuse and sixteen years of coercion and control from the father. During the course of their marriage the parties had two children together. However, since separation, the children refused to see their father aside from a few visits.
Trial Decision
Justice Mandhane awarded the mother damages in the amount of $150,000 for compensatory, aggregated, and punitive damages as a result of emotional, physical and financial control.
The trial judge also recognized a new tort of family violence. Justice Mandhane believes that this new tort would effectively address the reality of prolonged family violence which is not captured from existing torts.
Further, this new tort remedy would provide survivors of domestic abuse an avenue to pursue accountability and provide financial independence by attending a single proceeding rather than multiple, which is often required with other tort actions. This could potentially make it more realistic for women to leave violent relationships.2
Justice Mandhane set out a three part test to establish the defendant's liability where their conduct is:
- 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.3
The trial judge acknowledges that these three steps overlap with existing torts, however, notes 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”.4 The tort of family violence would allow consideration of, and compensation for, the pattern of violence,5 not just the individual incidents as seen with alternate tort actions.
Ontario Court of Appeal
Shortly after, the Ontario Superior Court of Justice's decision was appealed to the Ontario Court of Appeal.6 Here, Justice Benotto rejected the creation of the new tort of family violence on multiple grounds.
First, Justice Benotto notes that common law change is slow and incremental rather than quick and dramatic.7 Thus, suggesting that this change would be significant and best left to the legislature as opposed to the court system.
Second, Justice Benotto suggests that existing tort remedies effectively address family violence and the creation of a new tort is therefore unnecessary. In the present case, Justice Benotto notes that the father's abusive conduct satisfies the requirements for the tort of battery, assault, and intentional infliction of emotional distress.8 Justice Benotto states that these tort actions adequately address the potential issues that would arise under the novel tort remedy.
National Importance
The Court of Appeal's decision has now been appealed to the Supreme Court of Canada. This decision has yet to be heard.
The rejection of the tort of family violence from the Ontario Court of Appeal can be disappointing to survivors of family violence, but a positive decision may come about from the Supreme Court of Canada.
Multiple not for profit foundations such as Barbra Schlifer Commemorative Clinic and Luke's Place have intervened to provide a more nuanced and intersectional perspective to the court about the prevalence and nature of family violence and the experience of survivors of patterns of abuse. These foundations argue that the tort of family violence is an important and necessary step for the evolution of common law. They note that existing torts do not properly capture and compensate the true nature of family violence that is a pattern of coercive and controlling behaviour.
Statistics Canada further exemplifies the magnitude of domestic violence in Canada and illustrate the need for the new tort of family violence. In 2022 alone, there were 129,876 victims of police-reported family violence and 117,093 victims of intimate partner violence.
Domestic Abuse Services Oxford demonstrates that family violence can lead to extreme circumstances, such as homicides. They note that spousal homicides account for 15% of all homicides in Canada. Women are at greatest risk and are nine times more likely to be murdered by an intimate partner than by a stranger.
Given the magnitude of the issue at hand, it is hoped that the Supreme Court of Canada decision will provide clarity on this legal issue, and also adequately compensate and support victims of family violence.
This blog was co-authored by Summer Law Student, Adriana Piccolo
Footnotes
1. ]2022 ONSC 1303 [Ahluwalia].
2. Ahluwalia v. Ahluwalia, 2023 ONCA 476.
3. Ahluwalia, supra note 1 at para 52.
4. Ibid at para 54.
5. Ibid at para 23.
6. Ahluwalia, supra note 2.
7. Ibid at para 50.
8. Ibid at para 52.
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