Almost a year after its recognition by a Brampton judge, the new family violence tort remains the talk of the family law bar.
The March 2022 ruling in Ahluwalia v. Ahluwalia caused shockwaves as Ontario Superior Court Justice Renu Mandhane challenged the traditional limits of family law, ordering the husband to pay his ex-wife $150,000 in damages for physical and psychological abuse that occurred throughout their 17-year marriage.
For too long in family law circles, the received wisdom has been that we just don’t get involved in issues of domestic partner violence, which we have preferred to see as the domain of the police or possibly the civil courts.
Of course, the effect of this kind of evasive attitude is that survivors of domestic violence who wish to seek redress risk re-victimization as they are forced to fight the same battle twice in parallel actions.
That is why it was so refreshing to see Justice Mandhane call out the elephant in the room, forcing all of us in the profession to confront the ugly reality of family violence, and at the same time, giving clients with abusive spouses a new route to seek compensation in one place.
Still, despite all the excitement around the release of the decision in Ahluwalia, the progress of the new family violence tort seems to have stalled a little. According to Canlii, the case has only been cited tangentially in two cases — one in B.C. and another in Quebec — neither of which moved the judges any closer to recognizing a similar tort in their respective jurisdictions. In addition, I have yet to see much evidence that the family violence tort is being invoked in pleadings as new cases reach the courts in Ontario.
Sometimes a spouse may prefer not to level abuse allegations against a former partner if they are worried about prolonging proceedings or escalating conflict between the parties.
Another reason for the hesitancy may be the novelty of the tort and uncertainty around its durability, given the lack (so far) of any endorsement from a higher court. However, any doubts in that regard may soon dissipate one way or the other since Ontario’s Court of Appeal has scheduled a hearing for the argument of the husband’s appeal in March this year.
For the Court of Appeal to overturn Justice Mandhane’s decision, it will have to unpick some very tight knots in her reasoning, which I found highly persuasive.
According to the ruling, the former couple at the heart of the case had two children together after their 1999 marriage before finally separating in 2016.
Although the father denied all allegations of physical abuse, the judge sided with the mother, concluding that several serious assaults occurred during the marriage, starting with a “hard beating” the husband gave his wife right after their return home from their honeymoon.
The husband’s psychological abuse of his wife was also a feature of the relationship from the outset, according to the judge, who found he belittled her appearance and repeatedly threatened to leave her and the children penniless.
Justice Mandhane referred to new provisions recently added to the federal Divorce Act, which included for the first time a definition of “family violence.” In her ruling, the judge defined liability under the new tort as conduct by a family member that:
Although she acknowledged that the new tort overlaps to some extent with existing torts, Justice Mandhane found that none fully captured the “cumulative harm associated with the pattern of 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,” she added.
When the Court of Appeal eventually rules on the case, acceptance or rejection of the family violence tort are not their only options; a nuanced decision could broaden or limit the scope of the new tort.
In the meantime, I encourage survivors of family violence to include a tort claim if their situation closely aligns with the one outlined in Ahluwalia, bearing in mind the high bar that Justice Mandhane set.
She emphasized that to be successful, a claimant must 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.”
If you are a survivor of family violence considering a separation or divorce and want to learn more about your options, give us a call at Morgan and Phillips.