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Family violence tort decision a gamechanger

by Stephen Morgan

A Brampton judge’s decision to recognize the tort of family violence is a gamechanger for the entire family law field.

In her recent ruling, Ontario Superior Court Justice Renu Mandhane extended the traditional boundaries of family law by ordering a man to pay his ex-wife $150,000 in damages for physical and psychological abuse carried out over the course of their 17-year marriage.

Domestic violence is a huge and, more often than not, hidden social issue, and family lawyers get a closer look than most at the devastating impact it can cause to victims. However, we’re trained to focus more on the mental wellbeing of clients rather than the possibility of redress for violent acts, while family courts have also historically steered clear, leaving the matter to the police and civil courts to handle the possibility of any judicial redress of historical violence, as well as mental and physical abuse.

The cumulative effect of this approach was that domestic violence was effectively swept under the carpet in family law, but this newly recognized tort has the potential to smooth access to justice for family violence survivors, empowering them to seek compensation without the extra expense and stress of a separate claim in civil court or police involvement.

History of physical, psychological violence

It’s a little shocking that it has taken us this long to get here, but I think the decision is a step in the right direction. Still, as we enter this brave new world of family law, it will take some time and experimentation to establish all the details of the family violence tort and a clearer picture of what a successful claim looks like and what evidence needs to be brought forward to support these claims.

According to the ruling, the former couple at the heart of the case moved to Canada soon after their 1999 marriage in India and had two children together before their separation in 2016.

Accepting the mother’s version of events over the father’s denials of physical abuse, the judge concluded that the marriage was punctuated by instances of serious physical assaults, including a “hard beating” right after their return from honeymoon.

“In my view, this assault was designed to condition the Mother to her new reality: that the Father was prone to angry outbursts when intoxicated; that he would meet challenges to his authority with physical violence; and that his family would condone the violence,” Justice Mandhane wrote.“The general pattern was that the Father would become irrationally jealous, drink, engage in verbal arguments, and then beat the Mother.”

In addition, the judge found that the father had engaged in psychological abuse of his wife from the outset of their relationship, belittling her appearance and repeatedly threatening to leave her and the children penniless.

“After the physical and serious verbal abuse, the Father would subject the Mother to weeks and sometimes months of ‘silent treatment’ that would only end after she complied with his demand for sexual intercourse. While the Father denied ever ‘raping’ the Mother, he admitted that he would sometimes ‘demand’ sex. This was yet another manifestation of his control,” Justice Mandhane continued.

Definition of liability under tort

The door to this new approach was left open by recent changes to the federal Divorce Act adding a broader definition of “family violence,” and Justice Mandhane referred to the new provisions as she defined liability under the new tort as conduct by a family member that:

  • Is violent or threatening, or
  • constitutes a pattern of coercive and controlling behaviour, or
  • causes the plaintiff to fear for their own safety or that of another person.

Acknowledging some overlap with pre-existing torts, the judge found that none fully captured the “cumulative harm associated with the patternof coercion and control that lays at the heart of family violence cases.

“These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse,” Justice Mandhane added.

The $150,000 award in this case will be funded largely by the sale of the former couple’s matrimonial home, which the judge directed should flow solely to the mother.

It’s not clear at this stage if the father intends to appeal, but it’s likely the issue will end up at Ontario’s Court of Appeal sooner or later — whether it’s in this case or another in which the tort of family violence is recognized.

High bar to prove damages

The top court in the province could broaden or limit the scope of the new tort, or even reject its recognition altogether, but in the meantime, it’s clear that those who wish to make such a claim will face a high bar to success.

Some commentators have expressed concern about whether the decision will prompt a wave of family violence to overwhelm an already clogged family court system, and unfortunately, some family litigants in high-conflict cases are likely to invoke the new tort inappropriately.

However, Justice Mandhane does her best in the decision to head off that possibility, explaining that plaintiffs will have to prove on a balance of probabilities that a family member has 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,” she added. “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.”

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by Stephen Morgan

Stephen Morgan practices exclusively in family law and is highly skilled and experienced in litigation. He aims to guide clients through a difficult and stressful time in their lives with understanding, support, and practical advice.