Ontario Court of Appeal Overturns Decision Introducing New Tort of Family Violence

Ontario family law was subject to significant news last Spring when a judge presiding over a trial created a new tort of family violence. In their decision, the judge concluded that a years-long pattern of emotional violence amounted to damages that could not be met through existing law, specifically through existing torts for battery or assault. The trial judge concluded that creating a new tort for family violence was necessary. The husband appealed the ruling, and the Court of Appeal of Ontario’s decision ultimately found that the trial judge did not have to create a new tort, explaining that existing law can address such situations.

Wife awarded $150,000 in damages following divorce

The parties in the matter were married in India in 1999. After having their first child, the husband moved to Canada in 2001, while the wife and child followed early the following year. The husband and wife worked various jobs in Canada, moving from Ontario to Edmonton and back before separating in 2016.

The trial judge found that the husband was physically, emotionally, and financially abusive while they were married. Three specific acts of physical violence were cited, and he was charged criminally with assault and uttering death threats against his wife in 2021. At the time of the appeal, those charges remained outstanding. During the original trial, the judge found that the Divorce Act did not adequately address issues stemming from family violence, instead focusing on compensating people for the economic fallout of a marriage.

This led the trial judge to recognize a new tort of “family violence,” stating that the right to be free of various forms of abuse are “interests worth of protection and that development in the law was necessary.” In their decision, the trial judge found the husband guilty of this tort and awarded the wife $50,000 each for compensatory, aggravated, and punitive damages.

Was the trial judge justified in creating a new tort?

The husband’s primary argument on appeal was that the new tort should not have been recognized, stating it was poorly constructed, too easy to prove, and would create a floodgate of litigation that would change the landscape of family law. He also told the court that the creation of the new tort did not allow him to defend himself against it. The wife’s position as that the creation of this new tort was necessary, following the trial judge’s statement that existing tort law does not address the complexity of various kinds of family law.

The court focused on six issues at appeal. They were:

1. Did the trial judge err by including a tort claim in a family law action?
2. Did the trial judge err by creating a new tort?
3. Did the trial judge err in fashioning the tort of family violence?
4. Should this court recognize the tort of coercive control?
5. Did the trial judge err in assessing damages?
6. What is the procedure for a court considering a tort claim in a family law action?

The court found that the trial judge did not err by including a tort in a family law action. The court turned its attention to whether or not the creation of a new tort was something that should be upheld. The court wrote that the creation of a new tort is only appropriate when there exists harm that “cries out” for a legal remedy that doesn’t yet exist. After writing that common law should evolve slowly rather than abruptly, the court wrote that the law of existing torts already addresses the patterns of behaviour exhibited by the husband. Specifically, the Court of Appeal for Ontario already issued a decision that stated the tort of assault is inclusive of “intentionally causing another to fear imminent contact of a harmful or offensive nature.” The tort of battery covers physical violence. The court also reviewed the tort of intentional infliction of emotional distress, finding that the facts established in the original trial also meet that tort’s criteria.

The court found that the trial judge did not rely on any jurisprudence to support the proposition that existing torts did not capture the husband’s conduct before citing multiple decisions where these torts addressed family violence. This led the court to conclude that the trial judge did err by creating a new tort. The court then found that the creation of this specific tort was not necessary or properly pursued while finding that a tort of coercive control should not be recognized.

In turning to damages, the court looked at each type of damage, beginning by addressing compensatory damages for the depression and anxiety the wife suffered due to the abuse. The court found that the $50,000 awarded here should stand. The court arrived at the same conclusion when addressing aggravated damages, which reflects the emerging understanding of the “evils of intimate partner violence and its harms.” However, when turning to punitive damages, the court found that the trial judge failed to take the required analysis to determine whether they were warranted, stating that punitive damages are the exception rather than the rule. After reviewing the requirements, the court found that the compensatory and aggravated damages were sufficient and reduced the total damages to $100,000.

Johnson Miller Family Lawyers In Windsor Can Help You With A Wide Range Of Family Law Needs

With over 25 years of experience, the Johnson Miller Family Lawyers team understands the reality that people living with violence must endure. We work compassionately, creating custom legal solutions that meet our clients’ needs and experiences. If you find yourself working through separation, divorce, or spousal or child support issues, we would be happy to offer our help. Please don’t hesitate to contact us online or by phone at 519-973-1500.