The Tort of Family Violence

Content Warning: The following article includes references to family violence which may be uncomfortable or upsetting for some readers. If you are in need of support, you can find several resources here. If you’re in immediate danger, call 911.

One of the most pressing concerns for the family justice system today is how to adequately prevent, address, and support survivors of family violence. The following blog will consider the emerging tort of family violence, which, if fully accepted by the family justice system, would allow survivors of family violence to seek compensation for the harm they have faced.

 Unfortunately, courts have yet to adopt the tort of family violence as being distinct from existing torts of assault and battery, holding back the justice system from truly recognizing and responding to this unique context of irreparable harm.

What is Family Violence?

The Family Law Act defines “family violence” as including, with or without an intent to harm a family member,

(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,

(b)  sexual abuse of a family member,

(c)   attempts to physically or sexually abuse a family member,

(d)  psychological or emotional abuse of a family member, including

(i)    intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

(ii)   unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,

(iii) stalking or following of the family member, and

(iv) intentional damage to property, and

(e)  in the case of a child, direct or indirect exposure to family violence;

The Family Law Act defines a person’s “family member” as:

(a)  the person's spouse or former spouse,

(b)  a person with whom the person is living, or has lived, in a marriage-like relationship,

(c)   a parent or guardian of the person's child,

(d)  a person who lives with, and is related to,

(i)    the person, or

(ii)   a person referred to in any of paragraphs (a) to (c), or

(e)  the person's child, and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e).

Family violence therefore includes not only physical or sexual abuse, but also attempts to physically or sexually abuse a family member, and psychological or emotional abuse. This definition is important because it recognizes the variety of ways in which family violence can manifest and cause serious harm. Family violence is a serious factor to be considered in family law cases, especially where the wellbeing of children and the appropriate parenting arrangements are at issue. There is no direct mechanism within the Family Law Act to provide compensation for survivors of family violence, hence survivors have turned to the common law of tort. “Tort” simply refers harm perpetrated by one individual against another.

Is There a Tort of Family Violence?

The leading decision on the tort of family violence in Canada is an Ontario Court of Appeal Decision, Ahluwalia v. Ahluwalia, 2023 ONCA 476. In that case, the Court declined to recognize a new tort of family violence and overturned the trial judge’s decision which would have recognized the tort and awarded $150,000 to the survivor on the basis of the new tort. Rather, the Court held that existing torts were “flexible enough to address the fact that abuse has many forms”; therefore, creation of a new tort was not warranted. The Court concluded that such existing torts, properly applied, addressed the harm suffered in the circumstances. The Court reduced the damage award to $100,000.

Decisions from other provinces are not binding on courts in British Columbia, but are persuasive, and in this case, courts across the country have largely followed the decision in Ahluwalia.

In the case of Mirsayah v. Pajouh, 2023 BCSC 2294, the Supreme Court of British Columbia declined to allow the respondent to amend the counterclaim to include a claim based in the tort of family violence. The Court noted that in the case of Ahluwalia, a newly created tort of family violence was not recognized and that “normal tort remedies are adequate to address these types of claims”. The respondent could bring such claims under normal tort remedies but would need to propose specific language in the counterclaim that referenced existing torts, not the tort of family violence.

More recently, in Hammond v. Holtz, 2024 BCSC 447, the Supreme Court of British Columbia declined to consider the tort of family violence in assessing the claims made by the survivor in that case. The Court noted that although it was not bound to follow the decision in Ahluwalia, it was persuasive, and therefore addressed the claims only within the established law regarding the torts of assault and battery. On the facts, the Court found there to be “insufficient evidence” that the psychological abuse amounted to an imminent threat of harm, which is required for the tort of assault. However, the Court did find sufficient evidence for the tort of sexual battery. The Court awarded $10,000 in general damages to compensate the survivor for pain, suffering and loss of enjoyment of life, and to vindicate her dignity and personal autonomy.

The trial judge in Ahluwalia expressed concern that “long-term, harmful patterns of conduct that are designed to control or terrorize” are not adequately captured by existing torts. The Ontario Court of Appeal found this concern to be misplaced, and that existing case law demonstrate how the law of existing torts can and does respond to patterns of conduct. However, the decision in Hammond suggests that the trial judge’s concern may not have been so misplaced. The pattern of psychological abuse in that case did not, in the Court’s mind, create an “imminent threat of harm” in the mind of the survivor, necessary for the tort of assault. Perhaps a tort of family violence would have recognized the harm caused by the pattern of coercive conduct in a way that did not require imminent threat of harm, but rather recognized the serious impact the pattern of conduct had already had on the survivor.

Conclusion

While there is not yet a recognized tort of family violence in British Columbia, such arguments are still being raised and there is a possibility that it could be recognized in the future. In the meantime, survivors of family violence can seek redress through existing torts, such as assault, battery, and intentional infliction of emotional harm. Survivors may also refer the matter to criminal law, although this would not provide them with any monetary compensation for the harm.

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