In an important 2022 case—Ahluwalia vs Ahluwalia — Ontario Superior Court Justice Mandhane recognized a new tort of family violence. She awarded the wife $150,000 in damages for the pattern of physical and coercive controlling abuse she had been subjected to by her husband over the 16 years of their marriage. It was a noteworthy decision in many respects, and it offered hope to women leaving men who had abused them as well as to those of us who support such women. You can check out my earlier blog if you want a refresher on what torts are or the details of the case.
Not unexpectedly, Mr. Ahluwalia appealed the decision to the Ontario Court of Appeal. Luke’s Place and the Barbra Schlifer Commemorative Clinic intervened jointly in order to raise public interest issues related to women’s equality and gender-based violence in the family. In particular, we hoped our intervention could assist the court to understand the complexities of IPV and the myriad ways it harms survivors and their children as well as to see the benefits of a discrete tort of family violence within family law.
The appeal was argued in March of this year, and the Court of Appeal released its decision on July 7th. Unfortunately, our intervention did not have the impact we had hoped for.
The decision began well, with Justice Benotto acknowledging the seriousness and prevalence of intimate partner violence with these words:
“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.”
Changing with the times
Justice Mandhane’s decision at trial took the position that law needs to be adaptable in order to stay abreast of social change. She found that:
“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.”
The Court of Appeal did not agree, deciding that it was “unnecessary to create a novel tort.”
“The existence of family violence does not, by itself, justify the creation of a new tort. . . . When remedies already exist, a new tort is not required . . . Existing torts already address patterns of behaviour . . . The trial judge’s concern that long-term, harmful patterns of conduct that are designed to control or terrorize ‘are not captured by existing torts’ is misplaced. She found that the appellant had subjected the respondent to years of physical, psychological, emotional and financial abuse constituting behaviour calculated to be coercive and controlling. These facts fall squarely within the existing jurisprudence on battery, assault and intentional infliction of emotional distress.”
The Court of Appeal also found that the Divorce Act’s nuanced definition of family violence, which includes coercively controlling behaviour, is only to be applied in the context of parenting, so should not have been used by Justice Mandhane to support her decision about the issue of damages.
Ultimately, the Court of Appeal found that Ms Ahluwalia could pursue a claim for damages using existing torts available in the family law context and that significant changes such as the creation of a new tort specific to family violence are “best left to the legislature.” The appeal decision upheld the award for damages, but reduced the amount of that award from $150,000 to $100,00.
Missed opportunity
This case provided an opportunity for the highest court in Ontario to ensure that survivors of intimate partner violence would have access to a meaningful legal remedy as part of their family law case.
As the Luke’s Place media statement responding to the decision says:
“The tort of family violence was an important development in the law that had the potential to benefit many women across the province. This new tort captured the full spectrum of behaviours that can constitute family violence and the cumulative harm associated with a pattern of violence over time. It also allowed for the recognition of intersecting factors that impact a survivor’s experience of violence and the harm occasioned by the violence. Perhaps most importantly, it was a legal tool that was developed with survivors in mind – not requiring them to articulate the harms they experience through the lens of legal tools that were developed for other purposes.
“We hope that the Court of Appeal’s decision does not discourage survivors from bringing tort claims forward. Unfortunately, they will once again be left to piece together a patchwork of legal remedies that don’t adequately capture or reflect the true nature of their experience. This is on top of all of the other barriers that survivors regularly face while navigating the family law system; including but not limited to a lack of legal representation, post-separation abuse and legal bullying, managing trauma and the impact of other forms of inequity and oppression, lack of financial resources and access to safe and affordable housing, and an overall lack of understanding and awareness by legal system stakeholders about the nature and impact of violence.”
Discouraging and disappointing as this decision is, the story may not yet have ended. Either party could decide to appeal to the Supreme Court of Canada, in which case women’s anti-violence organizations may intervene to again raise the important issues that were raised at the Ontario Court of Appeal.