">
In Ahluwalia v. Ahluwalia, the trial judge determined that a new tort of family violence should be recognized and ordered the husband to pay $150,000 for compensatory, aggravated, and punitive damages to address the harm from intimate partner violence that the wife suffered throughout the relationship. The case was appealed to the Ontario Court of Appeal, which clarified the process for recognizing new torts in family law and assessed whether a new tort of family violence was warranted. The court acknowledged that intimate partner violence is a pervasive social problem, but the question was whether a new family court remedy was warranted. In this case, the court found it unnecessary to create a novel tort.
The Trial Judge Could Recognize Tort Claims in Family Law
The trial judge accepted the evidence that the husband had used emotional and physical violence against the wife and that there was a pattern of abuse and financial control. The husband conceded that he was liable for damages, although he objected to the trial judge’s recognition of the new tort. The Court of Appeal first considered whether the trial judge erred by considering a tort claim in a family law case. The husband warned against the introduction of tort claims in family law proceedings. He cited Frame v. Smith for the finding that it should be left to legislatures, not courts, to expand new categories of claims in family law. In that case, comments warned against provoking lawsuits within the family. However, the court concluded that the case did not completely answer the question and that a “general legislative intention to preclude tort actions in family law actions” could not be “inferred in this case.” One reason was that the Divorce Act did not include remedies for the respondent’s harm. Also, there was an example from 2020 in Leitch v. Novac, in which the court recognized a tort claim in a family proceeding.
Furthermore, the court acknowledged that intimate partner violence must be denounced within domestic relationships and that victims “do not lose their remedies when they marry or begin a domestic partnership.” In Frame, the court was dealing with an issue for which there was a statutory remedy, but in subsequent years, society has also recognized the harm of intimate partner violence. The trial judge did not err by including a tort claim in a family law proceeding.
The Creation of a New Tort Was an Error
When it came to assessing whether the trial judge erred by creating a new tort, the Court of Appeal recognized that tort law on its own is not capable of resolving the problem of family violence. Moreover, the existence of family violence does not necessarily justify the creation of a new tort. Instead, creating a new tort is appropriate only “when there is a harm that “cries out” for a legal remedy that does not exist.” The respondent pointed to Jones v. Tsige, where the court previously accepted that the common law needs to evolve when it fails to address a social ill. The circumstances where a new tort is justified were set out in Merrifield v. Canada (Attorney General). In that case, the court emphasized that while the common law evolves, it does so slowly and that significant changes are best left to legislatures. It also held that a new tort would not be required if legal remedies were available to redress the conduct.
The trial judge believed a new tort was necessary because existing torts did not adequately address liability and causation issues, and the assessment of damages was inadequate.
The Court of Appeal disagreed and determined that the existing torts of battery, assault, and intentional infliction of emotional distress could have been established by the trial judge’s findings. The trial judge found that the husband physically assaulted the respondent, which constituted the tort of battery. The requirements to establish assault were also met since the respondent faced threats of imminent harm and was subject to a constant pattern of abuse. The trial judge’s findings also satisfied the test for the tort of intentional infliction of emotional distress. Yet, the judge decided these torts did not capture the long-term patterns of harmful conduct involved in intimate partner violence. The appeal court found that concern was misplaced, noting that there was nothing to support the position that the existing torts did not capture patterns of tortious conduct or that they missed those relationship dynamics. Since existing torts address recurring behaviour patterns, the trial judge created a new tort unnecessarily.
Even if the trial judge was justified in creating a new tort, her approach was misguided. The judge relied on the definition of “family violence” as set out in the Divorce Act. However, the court explained that this definition addressed post-separation parenting plans. Also, the Act only refers to family violence in the context of parenting orders. When courts assess the best interests of children, they can consider the impact of family violence. Although these additions to the Act are a recognition that it is an important consideration, they are not the “starting point” for creating a new tort. Instead, the Court of Appeal explained that the legislature “must be taken to have intentionally introduced this concept only in the context of parenting.” Adopting the definition intended for use when developing parenting plans and using it to create a new cause of action was an error.
Court Declined to Recognize the Tort of Coercive Control
The respondent also proposed an alternative tort of coercive control. This would be established where, in the context of an intimate relationship, a person “inflicted a pattern of coercive and controlling behaviour that, cumulatively, was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm.” Importantly, this tort of coercive control would not have required proof of harm; instead, the requirement was that the conduct be calculated to cause harm. On appeal, the court declined to recognize the proposed tort. It found that the existing tort of intentional infliction of emotional distress already provided a remedy, the requirement to establish provable injuries did not apply to the current case, and eliminating the need to prove harm would significantly impact family law litigation. That change should be left to the legislature. Although the respondent suggested the tort of intentional infliction of emotional distress does not account for the context and pattern of coercion and control, the Court of Appeal disagreed. The proposed tort of coercive control “substantially overlaps” with intentional infliction of emotional distress.
The significant change would eliminate the requirement to show visible and provable injuries. However, that did not arise since the trial judge accepted that the injuries had been proven. Since the issue did not arise, the court did not view it as an appropriate case to significantly change the law. Nevertheless, the court noted that the evidence required to establish a mental injury “is not as onerous as it once was.” Also, the court emphasized that family law has been moving away from an adversarial dispute resolution model to reduce conflict. Also, removing the requirement to show injury could have the unintended consequence of encouraging allegations of fault, undermining the shift in family law to assist families in working cooperatively after separation.
Compensation Should be Paid for Abuse
The husband claimed that the damages awarded by the trial judge were excessive. Although the amount was higher than in prior cases, the court declined to interfere with the assessment for compensatory and aggravated damages. The court remarked that “the higher damage award reflects an emerging understanding of the evils of intimate partner violence and its harms.” On the other hand, the award for punitive damages attracted scrutiny. The judge’s additional $50,000 in punitive damages were intended to convey “strong condemnation.” However, the judge did not assess whether the general and aggravated damages were insufficient to meet the objectives of denunciation and deterrence. This was an error, as the other heads of damages were sufficient to accomplish these objectives.
Adequate Remedies Already Exist
Although the Court of Appeal decided against creating new torts, the decision clarifies the remedies that are available to victims of family violence. The court is clear that parties can pursue claims for the harm they have experienced and that existing torts can provide a remedy within family law, which may warrant significant damages as compensation. However, the Supreme Court of Canada is still scheduled to hear arguments in the case.
Windsor Family Lawyers Helping You Navigate Family Violence Claims
The Ahluwalia decision underscores the importance of seeking experienced legal counsel to navigate the complexities of family violence claims. At Johnson Miller Family Lawyers in Windsor, we understand the nuances of this evolving area of family law. We can help you leverage existing legal remedies to achieve justice and compensation. Whether you’re considering a claim for assault, battery, intentional infliction of emotional distress, or require guidance on the best path forward, our team is here to provide comprehensive support. Take the first step towards protecting your rights and securing your future: complete our confidential online questionnaire, or call us at 519.973.1500 to schedule a consultation and explore how we can advocate for you.
