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The Ontario Court of Appeal has rejected the creation of the tort of family violence in a much anticipated decision that could have significantly transformed family law.
That tort, or civil wrong, was created in a February 2022 landmark trial decision in the case of Ahluwalia v. Ahluwalia, in which Justice Renu Mandhane of the Ontario Superior Court of Justice ordered a husband to pay his former wife $150,000 in damages on account the pattern of violent abuse he inflicted on his former wife during their 16-year marriage.
Justice Mandhane created the tort since, according to her, “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 helplessness.”
In distinguishing the tort of family violence from exiting torts, Justice Mandhane noted that “existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize.”
The husband appealed, asking the appellate court to reject the new tort. In the appeal, the husband conceded he had some liability to the wife on account of his conduct but argued that liability should be pursuant to existing torts and the amount of damages should be reduced. In support of his position, the husband argued the tort of family violence is “poorly constructed, too easy to prove, would apply to a vast number of cases and create a floodgate of litigation that would fundamentally change family law.”
The wife disagreed. In her materials filed with the appellate court, the wife argued the “pervasiveness of family violence is a reason to recognize the tort — not a justification for doing nothing to fill this gap in our law.” According to the wife, the tort of family violence is necessary to address the impact of a pattern of abusive conduct since existing torts look at abusive behaviour “through a violent incident lens, wherein all that is considered are discrete incidents of violence or psychological abuse.” The wife asked the appellate court to confirm the tort of family violence and uphold Justice Mandhane’s award of damages.
The wife went on to argue that if the court rejected the tort of family violence on the basis of it being too broad, the court should recognize a “narrower tort of coercive control.” According to the wife’s materials filed with the court, the tort of coercive control “seeks to provide redress for the underlying pattern of conduct instead of individual incidents” and would “operate alongside existing incident-based torts.”
The Court of Appeal agreed with the husband and rejected the tort of family violence. In doing so, Justice Mary Lou Benotto, writing for the court, recognized that “a tort of family violence or coercive control would reflect and address a wrong visited by one person on another.” However, the question the appellate court had to decide was whether there were existing “adequate alternative remedies” to the creation of the tort of family violence. In other words: is the tort of family violence necessary?
Justice Benotto stated the “years of physical, psychological, emotional and financial abuse” inflicted on the wife falls “squarely within the existing jurisprudence on battery, assault and intentional infliction of emotional distress.” The judge continued by noting that “existing torts are flexible enough to address the fact that abuse has many forms” including those in which there is “recurring and ongoing abuse, intimidation, domination and financial abuse.”
In the context of her review of existing case law, Justice Benotto noted that courts have “long recognized that patterns of physical and emotional abuse constitute tortious behaviour. Contrary to (Justice Mandhane’s) conclusion, courts have considered the patterns of behaviour that constitute intimate partner violence without limiting their focus to individual incidents.” In fact, she said, “courts have also specifically considered the pattern of abuse as a reason to award higher damages.”
According to Justice Benotto, Justice Mandhane “erred by creating a new tort which was not required here.” The tort of family violence was rejected.
Turning to whether the award of damages in the amount of $150,000 was appropriate in the context of existing torts, Justice Benotto noted that “while the quantum is higher than has been typical in previous jurisprudence, the higher damage award reflects an emerging understanding of the evils of intimate partner violence and its harms. Just as sentencing in a criminal context is not in a ‘straitjacket,’ so too damage awards should reflect society’s abhorrence towards the conduct.”
Of the damages awarded to the wife, $100,000 were on account of compensatory and aggravated damages and $50,000 were punitive damages. According to Justice Benotto, while the compensatory and aggravated damages were appropriate, Justice Mandhane made an error by failing to “take a required step in the analysis of whether an award of punitive damages was warranted.” In conducting that required analysis, Justice Benotto found that the wife was not entitled to punitive damages since “the compensatory and aggravated damages are sufficient to accomplish the objectives of condemnation.” Justice Benotto reduced the wife’s damages to $100,000.
Julie Hannaford, a lawyer for the wife, said: “All the lawyers at the appeal agreed that family violence is now an epidemic; all the lawyers disagreed about how — or even whether — our family courts should address this epidemic. Justice Mandhane called for recognition that victims of family violence have a right to be compensated for the complex and distinct and destructive harm that they have suffered. Now that the Court of Appeal has spoken, the wife and her counsel are taking the time to carefully review this important decision.”
When asked for comment, the wife said: “It took me a long time to recognize that what was happening to me was abuse. I was alone. I did not have family support. So, it took me even longer to finally speak out. And when I did, others — victims, survivors, counsellors, and my counsel — helped me break the silence and ignite the conversation. I am deeply grateful for the support that I now know is out there and out there for everyone.”
The first paragraph in Justice Benotto’s decision, unfortunately, bears repeating here: “Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.”
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While, as a result of the Court of Appeal’s decision, recourse may not be had to the tort of family violence, this decision serves as a warning to perpetrators of family violence and, just as importantly, as a way to make it more realistic for victims to leave a violent relationship.
Adam N. Black is a partner in the family law group at Torkin Manes LLP in Toronto.