Tort of Family Violence? – Recent developments in Family Law: Ahluwalia v Ahluwalia 2022 ONSC 1303

Intimate partner violence is a social problem in Canada. It manifests in various forms, including physical assaults, psychological abuse, financial abuse and intimidation. According to Statistics Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. But, given the continuing prevalence of domestic violence in the community, only a tiny fraction of potential tort claims are ever advanced. Many litigants are unaware that tort options exist. This article aims to bring an awareness of the tort options available to victims of intimate partner violence and to discuss recent developments in family law, particularly the ‘’novel tort’’ of family violence.

Torts in general

A tort is a civil wrong that entitles a person who has suffered harm to claim damages from the person who caused that harm. Damages in this context refer to monetary compensation. Several torts are recognized in Canadian law, they include battery, defamation and assault.

The capacity to be sued

Human beings who commit torts can be sued by those who they wronged. One exception at common law was that spouses could not sue each other in tort. This has been changed by legislation. Section 60 (3) (a) of the Law and Equity RSBC 1996 c 253 provides as follows: -

‘’each of the parties to a marriage has the same right of action in tort against the other     as if they were not married’’.

The above provision has abolished interspousal immunity in tort in British Columbia. Interspousal immunity in tort prevented one spouse from suing the other spouse for a tort committed during the marriage. Today, spouses may claim damages for tortious behaviour that took place during the relationship. If a person causes bodily injury to any other person, including a spouse or a common law spouse, monetary compensation is available in a civil action for damages. Assault and battery constitute actionable torts in every Canadian province and territory. Unlawful restraints on the freedom of movement of another person may constitute the tort of false imprisonment and the intentional infliction of mental suffering may also ground an action for damages. 

In a British Columbia case,[1] a wife sued the husband for damages based on the tort of deceit.  She alleged that the husband, a citizen of Fiji, married her for the purpose of moving to Canada, and not necessarily for love. The court found that the husband misrepresented his true feelings towards the wife and his true motive for marrying her. The court awarded the wife $10 000.00 general damages for hurt feelings, humiliation and inconvenience.

When to claim?

During family law proceedings, spouses may claim damages for tortious behaviour that took place during the relationship. All potential claims arising from the breakdown of a relationship – including tort claims- can be addressed at the same time. A spouse may claim spousal support, division of property, child custody and tort damages all at once.

 If, however, a spouse does not claim damages during family law proceedings, he or she may still sue for damages in a civil suit by filing a notice of claim. In McCann v. Barens 2023 BCSC 2000, the wife brought a tort claim for damages for alleged sexual assault and physical violence by the husband during the parties’ former relationship. The husband raised a special defence that the matter had already been resolved during family law proceedings and could not be pursued further by the same parties. This is known as the plea of res judicata, it operates as a defence that stops a party from relitigating a matter that has already been determined between the same parties. The court held that the wife’s allegations of sexual abuse and physical violence during the family proceedings do not preclude her advancing a separate tort claim for damages.

Recent developments - Tort in relation to family violence?

 In addition to the recognized torts, courts in Canada are permitted to recognize new forms of torts. The courts tend to recognize these new forms of torts when there is an interest worthy of protection and some development(s) that makes it necessary to keep up with social change. See Nevsun Resources Ltd. V. Araya, 2020 SCC 5.

In 2021, the Ontario Superior Court of Justice created a new tort of family violence in Ahluwalia v Ahluwalia 2022 ONSC 1303. The background facts of that case are outlined below.  

Procedural History

Ontario Superior Court of Justice

In Ahluwalia v Ahluwalia 2022 ONSC 1303, the court awarded the wife $150, 000.00 in damages for family violence during the marriage.

The parties, referred to as the ‘’husband’’ and the ‘’wife’’, married in 1999 and separated in 2016. They had two children. The wife claimed damages for the physical and mental abuse she suffered at the hands of the husband. She argued that incidents of physical violence, coupled with the husband’s coercive and controlling behaviour, caused her mental and physical harms for which she should be compensated.
During the marriage she was subjected to physical beatings, episodes of silent treatment, financial control, bad-mouthing, threats of divorce, constant yelling, angry outbursts and occasional slapping across the head.  The wife recalled three specific incidents of physical violence which occurred in 2000, 2008, and 2013. In 2000, the husband punched and slapped the wife, causing extensive bruising on her arms and body. The catalyst to the assault was the husband’s jealousy that another man had complimented his wife’s appearance. In 2008, the husband accused the wife of flirting with a mutual friend. He grabbed her by the neck, pulled her hair and strangled her. In 2013, the husband became drunk, restrained the wife by her wrists, shook her by the upper arms, and slapped her.

The issue before the court was whether, in the context of family law court proceedings, a tort specific to family violence should be created.  

The court held that the Divorce Act RSC 1985, c 3 does not create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence. The Divorce Act does not provide a victim with a direct avenue to obtain reparations for harms that flow directly from family violence and that go well beyond the economic fallout of the marriage. The court held that existing torts (battery, assault) were not sufficient to deal with family violence because existing torts are focused on specific, harmful incidents. Contrastingly the proposed tort of family violence is focused on long term, harmful patterns of conduct that are designed to control or terrorize. To that effect, the court created a new tort of family violence. The Court held that to succeed with a tort action for family violence, a plaintiff must establish conduct by a family member towards the plaintiff, within the context of a family relationship, 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

The court found that the wife had suffered conduct that is violent, constituting a pattern of controlling behaviour and that had caused her to fear for her own safety. The court, therefore, awarded the wife monetary compensation.

The Ontario Court of Appeal

The husband appealed to the Court of Appeal for Ontario. He disagreed with the creation of a new tort of family violence. See Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII).

The Court of Appeal agreed with the husband. The Court cautioned against the creation of new torts, especially in circumstances where there are existing remedies. 
The Court  stated that creation of new torts is only appropriate ‘’when there is a harm that cries out for a legal remedy that does not exist’’. When remedies exist, a new tort is not required. New torts should not be recognized where there are adequate alternative remedies. See Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII).

The Court of Appeal found that existing torts, namely battery and assault are sufficient causes of action to remedy the harm suffered by the wife.  The Court of Appeal held that the trial judge’s concern that ‘’long-term, harmful patterns of conduct that are designed to control or terrorize’’ are not captured by existing torts is misplaced.

Dissatisfied with the decision of the Court of Appeal, the wife applied for leave to appeal to the Supreme Court of Canada.

The Supreme Court of Canada

The Supreme Court of Canada is the highest court in the judicial system of Canada. Its decisions are the ultimate application of Canadian law. On the 16th of May 2024, the Supreme Court of Canada granted to leave to appeal from the judgment of the Court of Appeal in the Ahluwalia matter.  The Ahluwalia case is now before the Supreme Court of Canada and that court will have the final say on whether the tort of family violence should be recognized in Canada.

Conclusion

Intimate partner violence is a pervasive social problem. Those who are victimised do not lose their remedies when they marry or begin a domestic partnership. A spouse may claim for damages for tortious behaviour that took place during the relationship. Such a claim may be instituted during family law proceedings together with other claims arising from the breakdown of the marriage or the claim may be brought separately as an independent suit.

Family violence has triggered various social and legal responses. In Ahluwalia, the Ontario Superior Court of Justice created a new tort of family violence. The court held that existing torts were not sufficient to address patterns of coercive abuse. The Court of Appeal disagreed and ruled that the creation of a novel tort of family violence was not warranted. The Supreme Court will have the final say on the matter.

Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.

[1] Raju v. Kumar, 2006 BCSC 439.