In a decision highly anticipated by family law litigants and practitioners across the Province, the Ontario Court of Appeal has rejected the newly created tort of family violence.
This novel tort was created last year in the precedent setting decision of Ahluwalia v Ahluwalia, decided by Brampton judge, Justice Renu Mandhane. Justice Mandhane ordered that a man pay his former wife $150,000 in damages for years of physical, financial, and verbal abuse. The decision was appealed shortly thereafter. In her reasons released in July 2023, Justice M. L. Benotto of the Court of Appeal began her judgment by acknowledging the problem of intimate partner violence in Canadian society:
Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.
Statistics support this conclusion: in 2021, there were 127,082 victims of family violence who reported the crime to the police. However, as many incidents of such violence go unreported, the true number is likely much higher. Nevertheless, Justice Benotto concluded that the creation of a novel tort was unnecessary, as existing torts and remedies are sufficient to address the harms caused by intimate partner violence.
The parties married in India in 1999 and their first child was born 18 months later. In September 2001, the husband, immigrated to Canada. The wife and child arrived in Canada soon after in March 2002. The parties had their second child in 2004 and bought a home in Brampton in 2005.
In July 2016, the couple separated. The parties’ children largely refused to see their father following the separation.
The trial judge accepted the wife’s evidence that her husband was extremely abusive during their marriage. She recounted instances of physical violence, verbal abuse, financial threats and controlling behaviour. The husband was criminally charged in September 2021 with assault and uttering death threats against his former partner.
The wife brought an action for statutory relief under the Divorce Act for divorce, child support, spousal support, and equalization of property, as well as a claim in tort for $100,000 in damages for the husband’s abusive conduct during their marriage.
The Trial Decision
Justice Mandhane agreed with the wife’s position that the Divorce Act did not go far enough in addressing the issue of family violence. In fact, the Act specifically prohibits courts from considering spousal misconduct in spousal support orders. She maintained that “[t]he no fault nature of family law must give way where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support.”
The Creation of the Tort of Family Violence
As a result, Justice Mandhane recognized a new tort of family violence. To establish liability under this new tort, the plaintiff must prove the existence of conduct by a family member, within the context of a family relationship, that:
- is intentionally violent or threatening; or
- constitutes a pattern of coercive and controlling behaviour; or
- causes the plaintiff to fear for their own safety or the safety of another.
Justice Mandhane emphasized that damages would be based on patterns of violence, not individual incidents, and that mere unhappy or dysfunctional relationships are insufficient.
Having accepted the wife’s evidence of her husband’s abusive conduct during their marriage, Justice Mandhane turned to damages. She awarded $150,000 to the wife in total, with $50,000 each for compensatory, aggravated, and punitive damages.
Issues on Appeal
The husband appealed Justice Mandhane’s decision. There were three main issues on appeal:
- Did the trial judge err in creating a new tort of family violence?
- Should the court recognize the narrower tort of coercive control?
- Did the trial judge err in assessing damages?
The appellant objected to the recognition of the novel tort. He argued that it was poorly constructed, too easy to prove, would open the floodgates for claims, and would constitute a substantial change to the law that is best left to the legislature.
In contrast, the respondent maintained that the creation of the novel tort was necessary to address the harm caused by family violence. In the alternative, if the new tort is too broad, she proposed a narrower tort of coercive control.
(1) Did the Trial Judge Err in Creating the Tort of Family Violence?
Justice Benotto concluded that Justice Mandhane did err in creating the tort of family violence.
The common law changes slowly and incrementally, not quick and dramatically, and significant change is best left to the legislature to implement. Moreover, novel torts will not be recognized in any of the following circumstances:
- where there are adequate alternative remedies;
- where the tort does not reflect and address a wrong visited on one person by another; or
- where the change to the legal system from the new tort would be indeterminate or substantial.
The first scenario posed the most problems for the tort of family violence. In the trial decision, Justice Mandhane argued that while some existing torts overlapped with the tort of family violence, they did not fully capture the cumulative harm of family violence:
…existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse. These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize… In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.
Justice Benotto disagreed. The appellant’s abusive conduct satisfied the requirements for the torts of battery, assault, and intentional infliction of emotional distress. Moreover, in determining the quantum of costs for such tortious conduct, courts have taken into account patterns of abusive behaviour. As such, there was no need to create a tort of family violence.
(2) Should the Courts Recognize a Tort of Coercive Control?
If the court would not recognize the tort of family violence, the respondent suggested a narrower tort of coercive control. Coercive control would include “emotional and psychological harm, financial abuse, social isolation, intentional damage to property, deprivation of necessities of life, or micro-regulation of daily activities.” The respondent proposed that the tort of coercive control would not require proof of harm, but would be established if a person: (a) in an intimate relationship, (b) inflicted a pattern of coercive and controlling behaviour, and (c) which, cumulatively, was calculated to induce compliance, create fear and helplessness, or cause harm to the victim.
Justice Benotto rejected this submission. The tort of coercive control is highly similar to the existing tort of intentional infliction of emotion distress. Moreover, elimination of the requirement that the plaintiff show harm would constitute a substantial change to the law that would require legislative intervention. As such, the Court of Appeal declined to recognize a tort of coercive control.
(3) Did the Trial Judge Err in Assessing Damages?
While this case had major implications for the practice of family law in Ontario, it was much less impactful for the parties involved in terms of the damages. Justice Benotto upheld trial judge’s award of compensatory and aggravated damages in the amount of $100,000, due to the high degree of deference given to trial judges in awarding costs. However, she allowed the appeal in regards to the additional $50,000 for punitive damages.
Justice Benotto pointed to the principles for awarding punitive damages established in Whiten v Pilot Insurance. In this case, the Supreme Court held that punitive damages were highly exceptional remedies and should only be awarded where compensatory damages are insufficient. Here, the compensatory and aggravated damages, in the amount originally sought by the applicant, were sufficient to demonstrate the court’s disapproval of the appellant’s conduct.
While this decision eliminated one avenue of recourse for survivors of family violence in Ontario, it should not be viewed as a loss. The Court recognized the harm of family violence, the need for judicial condemnation of the offenders, and the need for compensation for the survivors. In dismissing the need for novel torts, the Court also affirmed the efficacy of existing torts like battery, assault, and intentional infliction of emotional distress in addressing family violence and highlighted to survivors the legal options available to them.
This blog was co-authored by law student, Leslie Haddock.
“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
 Ahluwalia, ONSC, supra note 1 at para 46.
 Ibid at para 52.
 Ahluwalia, ONSC, supra note 1 at para 54.
 Ahluwalia, ONCA, supra note 2 at para 103.
 Ibid at para 104.