In the recent decision, Ahluwalia v. Ahluwalia, 2022 ONSC 1303, the court recognized the new tort of “family violence” as a civil remedy, outside of the scope of family/criminal liability.
The court awarded $150,000 “in compensatory, aggravated, and punitive damages for the tort of family violence”, recognizing that such an award “is well-outside the normal boundaries of family law”.
Recognition of the New Tort of Family Violence
The court recognized that the Divorce Act “does not create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence” and does not provide the victim of family violence “with a direct avenue to obtain reparations for harms that flow directly from family violence and that go well-beyond the economic fallout of the marriage”.
Further, the Divorce Act prohibits consideration of “misconduct” when making a spousal award. At “its heart, spousal support is compensatory rather than fault driven” and “spousal awards are not meant to censure particularly egregious conduct during the family relationship that calls out for aggravated or punitive damages”.
The court found that though there is overlap with existing torts, such as assault, battery and intentional infliction of emotional distress, there are “unique elements that justify recognition of a unique cause of action” and 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 hopelessness”.
As such, on the “rare and unusual facts” before the court, a “remedy in tort that properly accounts for the extreme breach of trust” and that “brings some degree of personal accountability” is warranted. In cases that are “unusual”, where “there is a long-term pattern of violence, coercion, and control, only an award in tort can properly compensate for the true harms and financial barriers associated with family violence”.
The Test
The court advises that “serious allegations of family violence” create “independent, and actionable harms that cannot be compensated through an award of spousal support”.
The court advises that the proper starting point is the definition of “family violence” in the Divorce Act which includes conduct that “goes beyond physical assaults”:
family violence means 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 — and includes:
- 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 court goes on to advise that 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:
- is violent or threatening, or
(The court opines that the plaintiff must show that the defendant intended to “engage in conduct that was violent of threatening”, which is “consistent with the already well-recognized intentional torts of assault and battery”)
- constitutes a pattern of coercive and controlling behaviour, or
(The court advises that under the second mode of liability, the plaintiff must establish that the family member “engaged in behaviour that was calculated to be coercive and controlling to the plaintiff”)
- causes the plaintiff to fear for their own safety or that of another person.
(The court advises that under the third mode of liability, the plaintiff “must establish that the family member engaged in conduct that they would know with substantial certainty would cause the plaintiff’s subjective fear”, which is “consistent with battery, and/or intentional infliction of emotional distress”)
It should be noted that the use of the word “or” suggests that demonstrating any one (1) of the above three (3) modes of liability is sufficient to establish the tort of family violence.
Lastly, the court states that to establish the tort of 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”. The court says that it “will be insufficient to point to an unhappy or dysfunctional relationship as a basis for liability in tort”.
At Gilbertson Davis LLP, our lawyers can assist in matters involving the torts of family violence, assault, battery, sexual harassment, and/or intentional infliction of emotional distress. Our lawyers can represent you in your dispute, whether you are the person being wronged or the alleged wrongdoer. Gilbertson Davis LLP lawyers have experience in Civil Litigation, Sexual Assault and Harassment, and Relationship Fraud, matters and can assist you in resolving your legal issues in a timely and cost-effective manner. Our mission is to provide creative, sensible, cost-effective, long-term resolutions to clients in their disputes. Please contact Gilbertson Davis LLP to schedule a consultation.
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