Ontario Justice Creates New Tort of Family Violence Claimable Under the Divorce Act
In a recent decision arising out of the Ontario Superior Court of Justice, the trial judge, Justice Mandhane created a new tort of family violence.
The parties in Ahluwalia v Ahluwalia, 2022 ONSC 1303 were married in November 1999 and separated in July 2016. There were two children of the marriage. The Father left the Mother. The Mother cited claims of physical, mental, and emotional abuse throughout the marriage in her pleadings. Specifically, she recounted 3 incidents of physical violence in 2000, 2008, and 2013, and an “overall pattern of emotional abuse and financial control” (Ahluwalia at para 21). The Father denied all allegations of abuse.
The Mother began representing herself in September 2019. In an Amended Answer, delivered in March 2021, the Mother added a new claim for “general, exemplary and punitive damages for the physical and mental abuse suffered by the Respondent at the hands of the Applicant” (para 27). The Father again denied all abuse allegations.
At trial, the Father raised a defense that the Mother’s tort claim was barred for breach of the limitation period. Justice Mandhane ruled that it was not barred because of the “intimate relationship” and the “relationship of dependency” between the parties which, under s. 16(1)(h.2) of the Limitations Act, renders a limitations period inoperative.
In the Mother’s closing statements at trial she proposed that damages for family violence experienced throughout the marriage should amount to $100,000. The term “family violence” was used specifically because of the emphasis on family violence in the recently updated Divorce Act.
Justice Mandhane set out the parameters for a new tort of family violence and considered whether the Father was liable for damages under that new tort by considering 4 questions.
Question 1: Is the Mother’s tort claim properly considered as part of the family law proceedings?
As a starting point, Justice Mandhane agreed with the Father that the Divorce Act does provide a wholistic statutory scheme providing financial resolution post-separation and the Court must be wary of providing arms for family law litigants to overly complicate litigation through speculative and spurious tort claims (para 42).
However, Justice Mandhane concludes a family violence scheme is not spurious and specifically points out the devastating, life-long impacts resulting from family violence on children and families.
The Divorce Act defines family violence not just as physical violence, but any action that causes a family member to fear for their own safety or for that of another person. However, despite the recognition of family violence in the legislation, the Divorce Act provides no direct route to address legal issues arising from family violence. Family violence is specifically excluded from consideration when determining spousal support under s.15 because spousal support is not meant to be fault driven.
Survivors of family violence have no path to obtain reparations for harms which flow beyond mere economic fallout of the marriage (para 46). A new tort of family violence may provide that path.
While considering what she viewed as an inequity in the legislation, Justice Mandhane concluded that “the no-fault nature of family law must give way where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support” (para 46).
Justice Mandhane framed the creation of a new tort of family violence as a solution to issues of access to justice because it would be “unreasonable 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” (par 47).
Question 2: Is there a tort of family violence?
Justice Mandhane derived jurisdiction to develop a new foundation for liability in tort by quoting Merrifield v Canada (Attorney General), 2019 ONCA 205 at para 10, which stated, “there is scope to do so where the interests are worthy of protection and the development is necessary to stay abreast of social change.” Justice Mandhane created the new tort of family violence in recognition of what she saw as a new interest that warrants protection under civil law.
Justice Mandhane looked to the definition of family violence in the Divorce Act as a starting point for determining modes of liability for the tort. Based upon that statutory definition, the following definition for the tort was developed (at para 52) as:
Conduct by a family member towards the plaintiff, within the context of a family relationship, that:
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- 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.
Under the first mode the plaintiff must establish that the family member intended to engage in conduct that was violent or threatening. Under the second mode, the plaintiff must establish that the family member intentionally engaged in coercive and controlling behaviour. Under the third mode, the plaintiff must prove that the family member acted in a way that they knew, with substantial certainty, would cause the plaintiff subjective fear (para 53).
The substantial difference between the tort of family violence and other existing torts which also contemplate violence or threats is the recognition that family violence is a pattern of violence, coercion, and control, which creates conditions of fear and helplessness (para 54). Assault and battery are offences predicated upon incidents. The proposed tort of family violence focuses on long-term, harmful patterns of conduct designed to control or terrorize (para 54).
Justice Mandhane established the test for the new proposed tort:
That all being said, 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.
Once liability is established, the nature and duration of the family violence will be factors relevant to the assessing of damages.
Justice Mandhane justified recognizing a new tort for 4 reasons.
First, it is an evolution in the understanding of the years of psychological and physical abuse endured by survivors of family violence (“survivors”). In particular, Justice Mandhane cited that the outdated idea that a survivor should just leave the marriage may improperly be used as grounds for a credibility attack on the survivor under other tort schemes. The tort of family violence, Justice Mandhane suggested, is better equipped to understand the reality that survivors do not leave abusive relationships for a myriad of reasons such as: lack of job skills, presence of children to care for, fear of retaliation, fear of losing custody of children, pressures to keep the family together, a weak social and financial support system, and the fact that violence often does not end after leaving (para 64) and likely more.
Second, recognizing the tort of family violence is consistent with the compensatory goals of tort law (para 66). Spousal support does not currently cover compensation for the true harms and financial barriers associated with family violence. A new tort of family violence will assist with the ongoing issue of negative financial and social impacts being borne entirely by the survivor. Justice Mandhane considered the impact of a new tort on the ongoing discourse surrounding the direct line between survivors’ economic vulnerability and their diminished capacity to access justice (para 67-68). Her decision states at para 68 that,
the tort of family violence will give survivors an avenue to pursue accountability and financial independence, albeit ex post facto, through a single, family law proceeding. The promise of significant financial compensation could make it more realistic for some women to leave violent relationships.
The third rationale for the recognition of a new tort of family violence is that it is consistent with Canada’s international human rights obligations under the Convention on the Elimination of all Forms of Discrimination Against Women.
The fourth, and last, rationale is that it is consistent with the normative standard of personal responsibility in our society (para 70).
Question 3: Should the Father be liable for damages from family violence?
The determination in this case came down to the credibility of the parties. Justice Mandhane found the Mother, and the Mother’s witnesses, more credible on issues relevant to family violence.
Justice Mandhane went through the 3 modes of liability listed above and found that the Father was, on a balance of probabilities, liable for damages under each mode.
Question 4: What damages should flow?
The Mother was awarded $150,000 ($50,000 more than she asked for) in damages flowing from family violence. This was broken into $50,000 in compensatory damages relating to the Mother’s ongoing mental health disabilities and lost earning potential. $50,000 for aggravated damages due to the overall pattern of coercion and control and clear breach of trust. $50,000 in punitive damages as a strong admonishment for the actions of the Father.
Conclusion
This is a new, and possibly hugely influential, step for family law. Justice Mandhane created a novel tort under the Divorce Act that may be claimed alongside an existing family law claim and will be dealt with in family law proceedings.
The proposed new tort is grounded in the Divorce Act, responds directly to the current evolution of understanding of family violence, and attempts to address the ongoing societal issues of inequity after separation. This new tort has no limitation period as it was committed in an intimate relationship of dependency.
It is unclear whether this decision will be appealed or will stand as valid case law in Ontario. It also remains to be seen how this decision will affect family law in Alberta.