In Canada, the law of “torts” addresses the civil damages and other remedies that arise when one person injures or harms another. The list of long-recognized torts includes negligence, civil assault, battery, intentional infliction of emotional distress, and defamation, to name a few.
In the Ontario decision in Ahluwalia v. Ahluwalia the lower court judge had concluded that it was high time to recognize a new tort: “Family violence”. She relied on this new tort in the case before her, to award $150,000 in damages to a wife who had endured psychological and some physical abuse during marriage to her husband.
Now, in a much-anticipated ruling from the Ontario Court of Appeal, the need for this kind of new tort has been flatly rejected. The Court began its decision with these sobering comments:
Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.
The issue before the court is not whether intimate partner violence exists. It does. It is not about whether societal steps should be taken to ameliorate the problem. They should be. The issue is whether, in the context of family law court proceedings – where numerous and varied remedies already exist – a tort specific to “family violence” should be created.
The background facts involved spouses who had met in India through their parents, and married in 1999 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 their relationship, and displayed a pattern of emotional abuse and financial control. Their three children were now essentially estranged from their father. She gave evidence of specific incidents of physical violence in 2000, 2008, and 2013, some of which sparked still-pending criminal charges against the husband. The Appeal Court described those incidents this way:
In 2000, after the parties returned to India from a trip to Europe, the husband punched and slapped the wife, causing extensive bruising on her arms and body. The catalyst to the assault was that the husband was jealous that their Italian tour guide had complimented the wife’s appearance. The wife denied having done anything to attract the guide’s attention.
In 2008, the husband accused the wife of flirting with a mutual friend who had helped fix a computer. He slapped her, grabbed her by the neck, pulled her hair and strangled her. He said he would “teach her a lesson” and asked her “will you do it again?” She described the incident as the worst night of her life.
In 2013, when the parties were in Edmonton, the husband became drunk, restrained the wife by her wrists, shook her by the upper arms, and slapped her across the side of the head.
The physical abuse was part of a pattern of conditioning and control. The trial judge found the husband insulted and belittled the wife about her appearance and her difficulties conceiving, and repeatedly threatened to leave her and the children penniless. He subjected her to weeks and sometimes months of “silent treatment”, which would only end when she complied with his “demand” for sex.
Concluding that existing Canadian law was insufficient to redress these kinds of day-to-day realities, the trial judge decided a new tort was warranted, and set out the governing tests for it. After finding the current facts met the needed threshold, she awarded the wife $150,000 in damages.
But the Court of Appeal reversed this, finding it was unnecessary to create a new tort. Although intimate partner violence must be “recognized, denounced and deterred”, it said, many aspects of the problem are already addressed by the criminal law, and by dedicated Family legislation and existing tort remedies. The Court added:
The existence of family violence does not, by itself, justify the creation of a new tort. The creation of a new tort is only appropriate when there is a harm that “cries out” for a legal remedy that does not exist.
For the wife in this case, the harm she suffered could be adequately addressed by the existing array of Canadian torts. These included battery, assault, and intentional inflection of emotional distress, to name a few. They could be used to determine both the husband’s liability, and the wife’s damages.
As for the $150,000 damages award, the Court of Appeal confirmed $100,000 of that, for compensatory and aggravated damages for coercion, control, and breach of trust. The Court said:
First, the trial judge’s assessment of damages attracts a high level of deference. Second, while the quantum is higher than has been typical in previous jurisprudence, the higher damage award reflects an emerging understanding of the evils of intimate partner violence and its harms. Just as sentencing in a criminal context is not in a “straitjacket”, so too damage awards should reflect society’s abhorrence towards the conduct. Indeed, the quantum of damages historically awarded may need to evolve to better reflect the current societal understanding of the extent of these harms. …
However, the Court overturned the additional $50,000 that had been added for punitive damages, finding they were not warranted on the facts.
Court of Appeal decision: Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII)
Lower court decision: Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (CanLII)
