While the Ontario Court of Appeal (“ONCA”) stated that intimate partner violence is a pervasive social problem taking many forms and impacting a significant number of people, in Ahluwalia v. Ahluwalia, 2023 ONCA 476 (41061) (“Ahluwalia”), the ONCA would not recognize the new torts of domestic violence or coercive control and held that it was unnecessary to create a novel tort as adequate remedies already existed. Leave to appeal was granted to the husband.

Findings of the Trial Judge

On an action by the wife for statutory relief and damages for the husband’s conduct during the marriage, the trial judge awarded $100K in compensatory and aggravated damages and $50K in punitive damages, accepting the wife’s evidence of a pattern of emotional and physical abuse and financial control.

The trial judge held that the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) (the “Divorce Act”) did not create a complete statutory scheme for addressing all the legal issues arising in a situation of alleged family violence, and that spousal support awards remained narrowly focused on compensation and economic fallout of the marriage rather than fault and misconduct. The trial judge was concerned that narrow methods of liability did not adequately address the realities of family violence, including patterns of behaviour, and an award in tort was appropriate.

Using the statutory definition of “family violence” from s.2 of the Divorce Act as a starting point, the trial judge held that a plaintiff could establish a defendant’s liability through any of 3 modes:

(1)  Intentional conduct that was violent or threatening;

(2)  Behaviour calculated to be coercive and controlling to the plaintiff; or

(3)  Conduct the defendant would have known with substantial certainty would cause the plaintiff to subjectively fear for their own safety or that of another person.

Court of Appeal Decision

a) Trial judge did not err by including a tort claim in a family law proceeding

The ONCA found that the trial judge did not err by including a tort claim in a family law proceeding, and that courts have already recognized the addition of a tort claim in a family law proceeding.

b) Trial judge erred by creating a new tort which was not required

The ONCA explained that the existence of family violence in itself does not justify the creation of a new tort. A new tort is only appropriate when harm requires a legal remedy that does not already exist, and a new tort is not required when the only difference from established torts is the quantum of damages.

The trial judge determined a new tort was necessary because, in her view, the assessment of liability and causation, as well as of damages under existing torts of battery, assault, and intentional infliction of emotional distress, were insufficient to address the pattern of abuse in the circumstances of Ahluwalia.

The ONCA held that the trial judge’s findings of fact satisfied the requirements for the established torts and disagreed that they did not capture the pattern of conduct inherent in intimate partner violence. According to the ONCA, courts have long recognized the patterns of behaviour that constitute intimate partner violence without focusing on individual incidents. One example is Dhaliwal v. Dhaliwal, [1997] O.J. No. 5964 (Gen. Div.), where the wife provided evidence of 3 discrete violent incidents that formed part of a pattern of physical and emotional abuse, causing her to suffer various forms of emotional distress, resulting in a damages award of $10,000. The ONCA further clarified that isolated incidents that are not individually tortious may become tortious when viewed in their repetitive and cumulative nature.

Therefore, there was no need for a new tort to be created.

c) Trial judge erred in fashioning the tort of family violence

The ONCA held that, even if there were a need to create a new tort, the trial judge’s approach was misguided in her reliance on the statutory definition of “family violence”, which has a very specific application meant for post-separation parenting plans. This specific definition should not have been used to create a new tort as it ignored the particular purpose the legislature intended for the term.

d) The proposed new tort of coercive control should not be recognized

The ONCA would not recognize the tort of coercive control because: (i) the existing tort of intentional infliction of emotional distress provided an adequate remedy; (ii) the elimination of the requirement to establish visible and provable injuries did not arise in Ahluwalia; and (iii) the elimination of the requirement to prove harm would cause a significant impact on family law litigation best left to the legislature.

e) Trial judge erred in assessing damages

The ONCA held that while the trial judge’s quantum for compensatory and aggravated damages was high, it reflected an emerging understanding of the harms of intimate partner violence and notably provided that damage award may need to evolve to better reflect current societal understandings. As a result, the ONCA did not interfere with the trial judge’s assessment for compensatory and aggravated damages.

However, in terms of punitive damages, while the ONCA agreed that the husband’s conduct called for condemnation, the trial judge failed to address whether the award of general and aggravated damages was insufficient to achieve the goals of denunciation and deference, a requirement when assessing punitive damages.

Procedure For A Court Considering A Tort Claim In A Family Law Action

According to the ONCA, the starting point for a determination of financial issues arising from the marriage is the application of the statutory provisions, in this case under the Divorce Act and Family Law Act, R.S.O. 1990, c.F.3. Other claims should not be considered until after those determinations are made as, for example, a compensatory support award under the Divorce Act may impact the quantum of damages, and if abuse allegations involve financial abuse, there may be an order for unequal division of net family property.

Contact Meridian Law Group in Vancouver for Trusted Advice on Issues of Family Violence

The compassionate family lawyers at Meridian Law Group have extensive knowledge of family violence issues. Our family lawyers take swift, decisive action to pursue any court orders required to ensure the safety of a client and their family.

Located in the Nelson Square Building in downtown Vancouver, Meridian Law Group represents clients throughout British Columbia, including West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. We also work with clients across Canada and internationally. Please call us at (604) 687-2277 or reach out to us online to schedule a confidential consultation with a member of our experienced family law team.