Following in the footsteps of Quebec, a new tort in family violence has been recognized in Ontario.
In Quebec, there are some 20 cases that awarded damages to victims of spousal abuse, a figure that is less than the number of decisions that have granted damages to ex-spouses for online harassment, point out legal experts. But there are signs that is about to change.
“It is a trend that will accelerate, and that’s because of the new amendments in the Divorce Act,” family law expert Michel Tétrault told me last year.
He may be right.
In Ahluwalia v. Ahluwalia, 2022 ONSC 1303, Ontario Superior Court Justice Renu Mandhane held that
[4]… I am prepared to award $150,000 in compensatory, aggregated, and punitive damages for the tort of family violence. I recognize that making such a significant damage award is well-outside the normal boundaries of family law. In the typical marriage, characterized by economic interdependence and mutual support, the family law statutory framework will be a complete code that allows for the fair, predictable, and efficient resolution of the parties’ financial issues post-separation.
[5] However, the marriage before me was not typical: it was characterized by the Father’s abuse, and a sixteen-year pattern of coercion and control. It was not just “unhappy” or “dysfunctional”; it was violent. The family violence the Mother endured at the hands of the Father is not compensated through an award of spousal support. Indeed, the Divorce Act_, R.S.C., 1985, c. 3 (2nd Supp) specifically prohibits me from considering “misconduct” when making a spousal support award: s.15.2(5). On the rare and unusual facts before me, the Mother is entitled to a remedy in tort that properly accounts for the extreme breach of trust occasioned by the Father’s violence, and that brings some degree of personal accountability to his conduct.
Here are the elements that need to considered for a tort in family violence, held Justice Mandhane:
[53] Under the first mode of liability, the plaintiff must establish that the defendant/family member (“family member”) intended to engage in conduct that was violent or threatening (i.e., consistent with the well-recognized intentional torts of assault and battery). Under the second mode of liability, the plaintiff must establish that the family member engaged in behaviour that was calculated to be coercive and controlling to the plaintiff. Under the third mode of liability, the plaintiff must establish that the family member engaged in conduct that they would know with substantial certainty would cause the plaintiff’s subjective fear (i.e., consistent with battery, and/or intentional infliction of emotional distress).
[54] While the tort of family violence will overlap with existing torts, there are unique elements that justify recognition of a unique cause of action. I agree with the Mother that the 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. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse. These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the 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. For example, the tort of intentional infliction of emotional distress requires showing that a specific interaction or behaviour was “flagrant and outrageous” and resulted in injury. In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.
[55] 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.
[56] The focus must be on the family member’s specific conduct, which must be particularized using specific examples. It will be insufficient and unfair for the plaintiff to simply rely on the pattern of conduct without pointing to any specific incidents. From a fairness perspective, the tort claim cannot be a series of bald assertions. The defendant must know the case to meet. Therefore, the trial judge must be satisfied that the plaintiff’s pleadings are sufficiently detailed to allow the defendant to respond.
[57] Once liability, is proven, the nature of the family violence—circumstances, extent, duration, and specific harm—will all be factors relevant to assessing damages. Aggravated damages may be awarded for betrayal of trust, breach of fiduciary duty, and relevant post-incident conduct. Punitive damage awards will generally be appropriate given the social harm associated with family violence.
[58] In my view, this is one of those rare circumstances where the common law should recognize a new foundation for liability for family violence. I come to this conclusion based on the existing case law related to spousal battery, explicit recognition of the harms associated with “family violence” in the Divorce Act, recent provincial legislation that removes other legal barriers facing survivors leaving violent relationships, developments in the American caselaw, and Canada’s international law obligations related to women’s equality: Jones v. Tsige, 2012 ONCA 32, [108 O.R. (3d) 241].