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A New (Old) Way Of Addressing Family Violence

Domestic violence is never okay, period. The law has recognized this for years now and those who commit domestic violence can face serious consequences. Domestic violence, or intimate partner violence, is unfortunately prevalent in many family law cases – and the law deals with it in different ways depending on the nature of the dispute.

How should the law best deal with incidents of intimate partner violence? Aside from criminal charges when appropriate, it is important to recognize intimate partner violence and family violence as a whole when deciding a family law matter. The Ontario Superior Court had, up until recently, created a new tort of “family violence” to provide victims with a means to a legal remedy.

However, the Ontario Court of Appeal recently overturned that decision, but in doing so confirmed there are other existing tortious claims available in family law disputes for those experienced intimate partner violence. 

The Case

In Ahluwalia v. Ahluwalia, 2023 ONCA 476, the parties married in 1999 in India, and had all relocated to Canada by 2002. They had two children and were involved in their community. They separated in 2016. The trial judge found that the husband had been abusive during the marriage, and the children scarcely saw him after the separation.

In her testimony, the wife was able to indicate specific incidents of physical violence throughout their years together, along with mental, emotional, and financial abuse throughout the marriage. The husband was also charged criminally with assault against the wife in 2021 several years after the marriage ended, and those charges were still outstanding. 

In assessing the case, the trial judge noted that while the Divorce Act does include a definition of family violence, it does not alter a person’s entitlement for support, and so there needed to be a legal mechanism for individuals to claim against partners who have wronged them without having to file two separate claims.

Thus, the trial judge created a new tort of “family violence,” recognizing that the U.S. legal system already had one for “battered woman syndrome.” The trial judge ruled that, based on the definition in the Divorce Act, a tort of family violence could recognize a longstanding pattern of violence so long as those incidents were specific, and not just assertions. The trial judge awarded the wife $150,000 for compensatory, aggravated, and punitive damages, along with the statutory claims and the full proceeds from the sale of the matrimonial home. 

In his appeal, the husband argued that the new tort was inappropriate since it did not create clear guidelines, and he was unprepared to defend himself against a new tort (since the trial had focused on the tort of assault). Moreover, the wife had only sought $100,000 in her damage award, and it was the trial judge that tacked on the additional $50,000.

The wife argued that the tort was necessary, but that the tort of ‘coercive control’ could instead be used in these cases. 

The Appeal Decision

Before assessing the trial judge’s decision, the Court of Appeal reiterated that “intimate partner violence must be recognized, denounced, and deterred.” The discussion on appeal was never to reward, or even debate, the husband’s despicable conduct. Instead, the legal debate stemmed from the right legal framework for a victim of such abuse to appropriately plead their case. 

The Court of Appeal ruled that, for several reasons, the trial judge was incorrect in creating a new tort. A new tort should only be created when there is no other legal remedy to address a specific wrong, and that “significant change is best left to the legislature.” Torts have been created recently to address situations of invasion of electronic privacy, and internet harassment, where there was no appropriate legal remedy available for victims. In other words, the creation of new torts is meant to fill a gap in the existing law.

The Court of Appeal found there were already existing torts long-established in the law, such as assault and battery and intentional infliction of emotional distress’, each of which have their own legal test and their own set of legal remedies available.  In reviewing those existing torts, the Court of Appeal applied the specific legal tests for each and found the husband’s conduct satisfied those tests. 

In response to the trial judge’s concern that these existing torts did not appropriately capture a pattern of behaviour, or that the torts did not offer high enough compensation for said damages, the Court of Appeal noted that “courts have long recognized that physical and emotional abuse constitute tortious behaviour,” and that patterns of abuse have led to higher damages.  The Court ruled that “the existing torts are flexible enough to address that abuse has many forms.”  Additionally, the legislature acted with purpose when they included a new definition of family violence in the parenting context, and their intention was not to create a new tort out of that definition. 

The Potential Implications

This case has significant implications for how parties frame their claims in family law disputes, especially where there has been intimate partner violence. As the Court of Appeal noted, tort claims in family law are not new, however this decision has provided tremendous clarity for family lawyers on how they should be used.

Specifically, the Court laid out very clearly the legal tests for some of the torts used in family law, and how they can be used to help those who have been through incredible trauma. For lawyers, tort claims are another tool in the toolkit, and a means for someone who has been wronged in their relationship to claim additional recovery. 

Our family law team is always trying to think outside the box to obtain the best results for our clients. We routinely represent clients from the Cambridge, Kitchener, and Waterloo Regions who have left impossibly difficult marriages, and for whom simple spousal and child support does not adequately compensate for the trauma endured. We understand, and we’re here to help you move forward in the best way possible. Contact our office today to set up a consultation.