In February 2022, the Ontario Superior Court of Justice recognized a new tort of “family violence” in its decision of Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (“Ahluwalia”). On appeal before the Court of Appeal of Alberta, the Court overturned the trial judge’s recognition of the new tort, which was released in July of this year.
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who committed the tortious act. Unlike crimes, which are created exclusively by Parliament through statute, new torts may be recognized and established by the judges. New causes of action in tort can be created through re-interpretation of precedent, extension of an existing cause of action, or the recognition of a new interest that warrants protection under the civil law. For example, the Court of King’s Bench of Alberta recently recognized a new tort of harassment in response to an online talk show host spreading misinformation that resulted in violence against Alberta Health Services employees (Alberta Health Services v Johnston, 2023 ABKB 209).
Ahluwalia v. Ahluwalia
Similarly, the Ontario Superior Court of Justice found that it was appropriate to recognize a novel tort in Ahluwalia. In that case, the parties were married in India in 1999. The husband was trained as a lawyer and the wife was a teacher, private tutor, and local talk show host. When the couple moved to Ontario, they had little social or financial support and lacked the time and money to get their foreign credentials accredited in Canada. They had two children and alternated working day and night shifts in a plastics factory before moving from Etobicoke to Edmonton in 2012, where the husband worked as a truck driver and the mother worked part-time in a bank. The couple later moved back to Ontario, eventually separating in 2016. The parties appeared before the Court to determine property equalization, child support, spousal support, and the issue that resulted in the recognition of the new tort – the mother’s claim for damages in relation to the father’s abuse during the marriage.
Recognition of New Tort
The trial judge found that the union was characterized by a sixteen-year pattern of coercion and control that, in addition to three serious physical assaults, included extensive psychological and financial abuse by the husband. Based on these facts, the Court found that the case contained unique elements that justified recognition of a distinct cause of action. In particular, the trial judge held that the existing torts of battery, assault, and intentional infliction of emotional distress did not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases.
The trial judge further held that the no-fault nature of family law must give way where there are serious allegations of violence that create independent, and actionable harms that cannot be compensated through an award of spousal support. As a result, the Court recognized the new tort of “family violence.”
The tort was defined as conduct by a family member towards the plaintiff, within the context of a family relationship that: (1) Is violent or threatening; (2) Constitutes a pattern or coercive and controlling behavior; and (3) Causes the plaintiff to fear for their own safety or that of another person.
In accordance with the newly established tort, the Court found that the mother was entitled to $150,000.00 in relation to the family violence she experienced during the marriage, inclusive of $50,000.00 for each compensatory, aggravated, and punitive damages.
Shortly after the establishment of the tort of “family violence,” the Ontario Superior Court of Justice’s ruling was appealed, with the Ontario Court of Appeal allowing the appeal and holding that it was unnecessary to create a novel tort, as existing torts, when properly applied, address the harm suffered in cases of family violence.
The appellant husband objected to the novel tort, arguing that it was poorly constructed, too easy to prove, and would apply to a vast number of cases, creating a floodgate of litigation that would fundamentally change family law. Such dramatic change, he argued, is better left to the legislature.
The wife submitted that the novel tort was necessary because existing torts did not address the cumulative pattern of harm caused by family violence. Although she supported the trial judge’s conclusions, she proposed a narrower tort of “coercive control”, which would provide a more sophisticated recognition of family violence. Coercive control would be made out where a person: (1) In the context of an intimate relationship; (b) Inflicted a pattern of coercive and controlling behaviour; and (3) That, cumulatively, was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm.
The appellate court held that the creation of a new tort is “only appropriate when there is a harm that ‘cries out’ for a legal remedy that does not exist.” The Court further found that the facts of the case fell “squarely within the existing jurisprudence” of assault, intentional infliction of emotional distress, and battery, and that these torts are flexible enough to address the fact that abuse has many forms. In addition, the Court did not accept the trial judge’s finding that that the existing torts did not capture the pattern of conduct inherent in intimate partner violence, citing numerous cases in which courts identified patterns in their assessment of tortious behaviour in the family context.
The Court did not accept the wife’s submission to recognize the narrower tort of “coercive control,” instead holding that the existing tort of intentional infliction of emotional distress provides an adequate remedy, and that the elimination of the requirement to establish visible and provable injuries would cause significant changes in family law litigation that would be best left to the legislature.
The Court also found that the trial judge erred in her assessment of punitive damages, failing to assess whether the $100,000.00 in general and aggravated damages was sufficient to achieve the goals of denunciation and deterrence. As a result, the damages were reduced to $100,000.00.
While the Ontario Court of Appeal did not uphold the recognition of the new tort of “family violence,” the Court emphasized the variety of civil remedies available to victims of intimate partner violence. If you or someone you know is suffering from family violence, support is available at the Family Violence Info Line at 310-1818 and at https://www.alberta.ca/family-violence-find-supports.aspx.
If you require legal advice regarding family or civil matters, the team at Bishop & McKenzie LLP is here to help.
Mark T. Coughlan, Summer Student and Megan B. Harris, Associate