Recent family law case: Tort of family violence

Ahluwalia v. Ahluwalia 2022 ONSC 1303

This recent case has taken Ontario’s legal community by storm. Justice Mandhane of Ontario’s Superior Court has awarded the mother in this case $150,000.00 in compensatory, aggregated and punitive damages for the tort of family violence.

This is a ground-breaking decision for survivors of family violence and one that I would argue is possible as a consequence of the 2021 amendments to the Divorce Act, which provides for a more expansive definition of family violence. 

For women leaving abusive relationships that have been punctured by physical injuries, emotional abuse and years of coercive and controlling behaviour, this tort award is significant. As Pamela Cross notes in her article in the Lawyers Daily, “As a result of the trauma caused by the abuse, few have the strength to consider a civil lawsuit for damages and, even if they were to pursue such remedy, there would be every likelihood that the abuser”.  

The parties in this case married after a short courtship. The marriage was traditional, and their roles were delineated along gendered lines. The parties separated after 16 years, and the mother detailed years of physical, mental and emotional abuse throughout their marriage. She was able to demonstrate specific instances of violence as well as an overall pattern of abuse and coercive control. The father denied the mother’s claims and characterized them as normal disagreements.

The father argued that the mother’s tort claim was statute barred; however, Justice Mandhane ruled that the assaults occurred while the parties were in an intimate relationship or a relationship of dependency and, as a consequence, no limitation period applied.

On the issue of spousal support, Justice Mandhane notes:

• Spousal support is compensatory rather than fault driven (para 44)
• Family violence is not a factor that the courts may consider when awarding spousal support (para 45)
• The objects of spousal support are narrowly focused on compensation and self-sufficiency in the context of a relationship of economic interdependence and mutual aid (para 45)
• The Divorce Act does not provide a survivor with a direct avenue to obtain reparations for harms that flow directly from family violence that go well beyond the economic fallout of the marriage (para 46)

In recognizing the new tort of family violence, Justice Mandhane notes:

• A tort arises when there has been a breach of a recognized legal duty and where the appropriate remedy is a claim for damages (para 49)
• There is emerging case law from the U.S. that recognizes a tort framed along the line of “battered women’s syndrome” (para 51)

Justice Mandhane’s explanation of the elements required to find a tort of family violence (para 52):

• To establish the type of liability, the proper starting point is the definition of “family violence” found in s.2 of the Divorce Act. The Plaintiff must be able to establish that the conduct of the family member towards them (within the context of a family relationship) was:

1. Violent or threatening; or
2. That the conduct constituted a pattern of coercive and controlling behaviour, or
3. That the conduct caused the plaintiff to fear for her safety and that of a another person (i.e. a child)

• 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 is not sufficient to point to an unhappy or dysfunctional relationship as a basis for liability in tort. (para 55)
• The focus must be on the family member’s specific conduct, which must be particularized using specific examples (para 56)

Justice Mandhane’s decision is refreshing. She highlights the reasons why women may not leave an abusive relationship (i.e. lack of job skills, presence of children, pressures to keep the family together) as well as provides a nuanced approach to why family violence should be considered as a tort.

At paragraph 66, Justice Mandhane notes that recognizing the tort of family violence is consistent with the compensatory goals of tort law,

“The harms associated with family violence include acute and chronic health issues (i.e. soft-tissue injuries, broken bones, chronic pain); mental, psychological, and social problems (i.e. low self-esteem, depression, anxiety, PTSD), underemployment and absenteeism, low career advancement, substance abuse, self-harm, suicidal ideation, death by suicide, and femicide. Physical and mental injuries, future case costs, and lost earning potential are regularly quantified in other civil law contexts. An award of spousal support will be insufficient to compensate for the true harms and financial barriers associated with family violence.”

Justice Mandhane’s recognition of the tort of family violence is significant for survivors. Her decision also highlights the importance of documenting and detailing specific incidents of family violence in family court proceedings.  

To read Pamela Cross’s analysis of Justice Mandhane’s decision in the Lawyers Daily, “New tort of family violence could be life changing”, please click here.