The Ontario Superior Court of Justice Recognizes the New Tort of “Family Violence”

In the recent decision of Ahluwalia v. Ahluwalia, 2022 ONSC 1303, the Ontario Superior Court of Justice recognized the new common law tort of “family violence”.  In recognizing this new tort, the Court awarded the plaintiff $150,000 in compensatory, aggravated, and punitive damages for the “family violence” that she endured at the hands of the defendant throughout their marriage. Recognizing that such an award is well-outside of the normal boundaries of family law, Justice Mandhane went on to reason that the marriage before her was not typical, but rather characterized by the defendant’s  abuse and a 16-year pattern of coercion and control. Justice Mandhane concluded that this was not just an “unhappy” or “dysfunctional” marriage, it was a violent one. Because the violence endured by the plaintiff at the hands of her husband is not compensated through an award of spousal support, Justice Mandhane found that the Mother is entitled to remedy in tort.

This decision means that in addition to paying spousal support or any other support under Family Law, the defendant is now obliged to pay $150,000 to the plaintiff for the violence that he inflicted upon her throughout their marriage.

In order to establish liability under the new tort of family violence, the plaintiff must prove (on a balance of probabilities) the existence of “family violence” based on its definition in section 2 of the Divorce Act. That is, the plaintiff must establish that conduct by a family member towards the plaintiff, within the context of a family relationship, is:

1. Violent or threatening; or
2. Constitutes a pattern of coercive and controlling behavior; or
3. Causes the plaintiff to fear for their own safety or that of another person.

According to Justice Mandhane:

[T]o establish “family violence,” the plaintiff will have to plead and prove on a balance of probabilities that a family member engaged in a pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or killing or harming an animal or property. It will be insufficient to point to an unhappy or dysfunctional relationship as a basis for liability in tort.

The focus must be on the family member’s specific conduct, which must be particularized using specific examples. It will be insufficient and unfair for the plaintiff to simply rely on the pattern of conduct without pointing to any specific incidents. From a fairness perspective, the tort claim cannot be a series of bald assertions. The defendant must know the case to meet. Therefore, the trial judge must be satisfied that the plaintiff’s pleadings are sufficiently detailed to allow the defendant to respond.”

Once liability is established, the focus will turn to damages. In this regard, Justice Mandhane held that aggravated damages may be awarded for “betrayal of trust, breach of fiduciary duty, and relevant post-incident conduct”. Punitive damages “will generally be appropriate given the social harm associated with family violence.”

This is the first time that a court in Ontario has recognized the tort of “family violence”. It remains to be seen whether this decision gets appealed to the Ontario Court of Appeal.

About the Authors

Ben enjoys the complexities of personal injury litigation and finds the cases that require creative thinking the most gratifying. His practice is exclusively devoted to representing clients with brain injuries, spinal cord injuries, and severe orthopaedic injuries.

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