Ontario Court of Appeal Rejects Tort of Family Violence in Decision of Ahluwalia v. Ahluwalia
The Ontario Court of Appeal rejects the tort of family violence in the decision of Ahluwalia v. Ahluwalia, which was released on Friday, July 7, 2023.
Luke’s Place intervened in this appeal along with the Barbra Schlifer Commemorative Clinic based on our collective experience supporting survivors of IPV. We sought intervenor status to help the Court understand the complexities of IPV, the resultant harms on survivors and the reasons why the tort of family violence was so important to the survivors that Luke’s Place serves.
Luke’s Place is extremely disappointed by this decision. This was an opportunity for the highest court in Ontario to ensure that the civil law is accessible to survivors of intimate partner violence (IPV) by maintaining a meaningful legal remedy.
Pamela Cross, Luke’s Place Advocacy Director.
Though not yet officially recognized as such by the Ontario Government, IPV is an epidemic. It is extremely prevalent[1] and there is a wealth of research documenting the pervasive effects it has on women and children. Justice Benotto recognized this at the outset of the Court of Appeal’s decision:
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.[2]
The tort of family violence was an important development in the law that had the potential to benefit many survivors across the province. This new tort captured the full spectrum of behaviours that can constitute family violence and the cumulative harm associated with a pattern of violence over time. It also allowed for the recognition of intersecting factors that impact a survivor’s experience of violence and the harm occasioned by the violence. Perhaps most importantly, it was a legal tool that was developed with survivors in mind – not requiring them to articulate the harms they experience through the lens of legal tools that were developed for other purposes.
We hope that the Court of Appeal’s decision does not discourage survivors from bringing tort claims forward. Unfortunately, we worry that they will once again be left to piece together a patchwork of legal remedies that don’t adequately capture or reflect the true nature of their experience. This is on top of all of the other barriers that survivors regularly face while navigating the family law system; including but not limited to a lack of legal representation, post-separation abuse and legal bullying[3], managing trauma and the impact of other forms of inequity and oppression, lack of financial resources and access to safe and affordable housing, and an overall lack of understanding and awareness by legal system stakeholders about the nature and impact of violence.
We commend the Court on its clear recognition of the pervasiveness and harm associated with IPV and its very clear statements about a litigant being able to include a tort claim in a family law proceeding. We are also encouraged by other recent and positive developments in the law that we hope will improve survivors’ access to justice, including Keira’s Law, which requires that judges receive education on IPV. We hope that both the legislature and judiciary continue to find ways to advance the law and effect meaningful change in the lives of survivors.
[1] Based on statistics from 2021, police-reported rates of family violence increased for the 5th consecutive year, with women and girls overwhelmingly those who are subjected to this violence (69%): https://www150.statcan.gc.ca/n1/daily-quotidien/221019/dq221019c-eng.htm.
[2] 2023 ONCA 476 at para 1.
[3] Legal bullying is a term used to describe an abuser’s use of the family court process to continue exerting power and control over their ex-partner. Please visit our website for more information: https://lukesplace.ca/after-she-leaves-legal-bullying/
