In 2022, the Ontario Supreme Court applied a new tort of family violence that recognizes the complex dynamic of violence within a relationship.
The new tort of family violence represents another step forward in Canadian courts’ ever-changing views of how to address violence in family matters. To understand this tort and its importance, we must first appreciate how Canadian family law once refused victims of family violence the opportunity to claim damages through tort law as part of their family matter. Now, this completely new tort allows victims to pursue damages directly in response to violence experienced during a relationship.
What is tort law?
Before diving into this new tort, let’s review what is tort law. It is a civil law claim that allows victims “of a wrong to seek a remedy from the person who injured” them. The remedy is normally money, called damages.
A timeline of torts in family law
In their 1987 decision of Frame v Smith, the Supreme Court of Canada was hesitant to extend remedies in tort to victims who sought relief after experiencing family violence. They feared that doing so would “fashion an ideal weapon for spouses whose initial… objective, is to injure one another”.
Despite the Court’s hesitance to allow relief through tort law, it did consider family violence when resolving family law disputes. For example, the Supreme Court of Canada in their 1996 decision of Gordon v Goertz stated that the “threat or fear of violence to the custodial parent or the child” could be reason for moving a child’s residence without first providing notice to the non-custodial parent.
In time, courts began allowing family members to claim traditional violent torts such as assault and battery within family matters. Courts started with small damage awards and increased them over time. Now the damages reflect those granted under the general principles of tort law. In the 2017 decision of Montgomery v Kenwell, counsel argued for higher damages and the Ontario Supreme Court agreed. The Court granted a damage award of $75,000 for assault that occurred during a marriage.
In 2019, the Canadian Parliament announced amendments to the Divorce Act, which came into effect in 2021. For the first time, the Act explicitly defines “family violence” as:
any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.
In step with Parliament and the new Divorce Act, courts have become more willing to recognize and apply tort law and its remedies in response to family violence. This leads us to the most recent development from the Ontario Supreme Court in 2022. In the decision of Ahluwalia v Ahluwalia, the Court defined and applied a new tort of family violence.
At paragraph 52, the Court lays out the test for finding family violence and liability on a civil standard. The plaintiff must establish:
Conduct by a family member towards the plaintiff, within the context of a family relationship, that:
1. is violent or threatening, or
2. constitutes a pattern of coercive and controlling behaviour, or
3. causes the plaintiff to fear for their own safety or that of another person.
The Court found the defendant father liable for breaching this tort and awarded damages of $150,000 in favour of the plaintiff mother.
In coming to this decision, the Court recognized that the new Divorce Act, while statutorily recognizing family violence, fails to “…create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence”. The Court relies on the general principles of tort law to allow them to create new foundations for liability when there are interests worthy of protection and the development is necessary to stay abreast of social change (at para 50).
The Court comes to its conclusion for the new tort by considering “case law related to spousal battery, explicit recognition of the harms associated with ‘family violence’ in the Divorce Act, recent provincial legislation that removes other legal barriers facing survivors leaving violent relationships, developments in American caselaw, and Canada’s international law obligation related to women’s equality” (at para 58).
The Court justifies the need for the tort of family violence by considering the complex dynamic of violence within a relationship:
In terms of liability and damages, a narrow focus on the intentional torts of battery or assault committed on specific days or at specific times will obscure the lived reality of family violence. In family relationships, the conditions of terror, fear, coercion, and control are often created through years of psychological abuse punctuated with relatively few acts of serious physical violence. In practice, a perpetrator need only administer one hard beating at the beginning of a marriage to create an imminent threat of daily violence. Focusing too narrowly on specific incidents risks minimizing the tortious conduct, which is the overall pattern of violent and coercive behavior combined with a breach of trust. It follows then that a surgical focus on the mechanical elements of the physical assaults, for example, will not be adequate to understand and appreciate the true nature of the harmful conduct. (at para 59)
Towards clarity and protection
Family violence and remedies in tort are not new issues for family law. However, they have now grown to become more clearly defined, acknowledged, and applied so to protect and compensate individuals who have experienced a relationship defined by violence.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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