It’s only a few months into 2022, and we already have at least one landmark Family ruling from the Ontario Superior Court of Justice – this time on the sensitive topic of spousal abuse and family violence.
It stems from a case called Ahluwalia v. Ahluwalia. The spouses had met in India through their parents, and married after a brief courtship. It was a traditional marriage, which ended when they split after 17 years. The wife gave evidence that the husband was physically and mentally abusive throughout, and displayed a pattern of emotional abuse and financial control. Their three children of the marriage were now essentially estranged from their father.
Against the background of settling their divorce-related issues (which included customary claims for support, custody, and a share of proceeds from the sale of the matrimonial home), the wife also asked for significant financial damages from the husband for his alleged physical and emotional abuse of her during their relationship.
In a decision that shifts the legal landscape of tort law in Ontario, the court granted her request.
The court conceded that in the Family law context, the mother’s claim for tort-based damages arising from family violence was a novel one. Yet in the court’s view it was necessary to create a new tort of this type – and make it available to Family law litigants – because existing remedies are inadequate. They do not adequately capture the cumulative and unique harm that arises in family situations, where there may be a pattern of prolonged coercion and control by one family member against others.
As the court explained:
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. …
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.
To recognize this new tort is a “matter of access to justice”, which simply augments existing legislation: This includes the Divorce Act, which acknowledges the devasting effect of family violence; and the Criminal Code of Canada, which imposes penal sanctions for family-based abuse.
While conceding that “such a significant damage award is well-outside the normal boundaries of family law”, the court awarded the wife $150,000 in “compensatory, aggregated, and punitive damages for the tort of family violence.” This related to three specific incidents of physical violence that took place in 2000, 2008, and 2013, together with what the court found was the husband’s coercive and controlling behaviour that caused the wife compensable mental and physical harm.
To provide guidance for future litigants, the court then set out the parameters for making tort claims of this type, and drew from the existing “family violence” definition in the Divorce Act. To succeed, a claimant must show there has been a breach of a recognized legal duty, and that it is appropriate to claim damages as a result. The claimant must also establish there has been conduct by a family member, within the context of a family relationship, that is:
- Violent or threatening; or
- Constitutes a pattern of coercive and controlling behaviour, or
- Causes the claimant to fear for his or her own safety, or that of another person.
The claimant will also have to show – on the 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, or stalking
- Failure to provide the necessaries of life
- Psychological abuse
- Financial abuse, or
- Killing or harming an animal or property.
The perpetrator’s behaviour must be intentional, calculated to be coercive and controlling, and of a type that he or she knew with substantial certainty would cause the victim subjective fear. It is not enough to merely show there is an unhappy or dysfunctional family-based relationship.
The decision in Ahluwalia v. Ahluwalia shifts the landscape of Family Law in Ontario, and opens the door to potential and significant new remedies for family violence victims. If it might apply to your situation, feel free to give our offices a call.
For the full text of the decision, see:
