Ontario Court of Appeal's Rejection of the New Tort of Family Violence

Understanding the Rejection

A recent Ontario Court of Appeal decision rejected the newly created tort of family violence. The decision will undoubtedly have significant impacts on family law in Ontario.

History - How Did We Get Here?

In February 2022, the tort of family violence was established following a landmark decision in Ahluwalia v. Ahluwalia. At trial, Justice Renu Mandhane ordered a husband to pay his former wife $150,000 in damages for a pattern of physical, financial, and verbal abuse during their 16-year marriage. The husband promptly appealed the decision.

Facts

The parties were married on November 28, 1999, and separated on July 2, 2016. They have two children together, who refused to see their father after the separation. The trial issues included property equalization, child support, spousal support, and the mother’s claim for damages related to the father's abuse during the marriage.

Trial Decision

At trial, Justice Mandhane agreed with the wife, accepting her evidence and finding the husband abusive throughout their marriage. In addition, Justice Mandhane agreed with the wife’s position that the current steps taken by the Divorce Act were insufficient in tackling the problem of family violence.

In her decision finding the creation of the new tort, Justice Mandhane agreed with the mother’s position on the existing torts available, stating, “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.” Furthermore, Justice Mandhane stated, “Existing torts are too 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 doing so, distinguishing the new tort from the existing torts.

The test created by Justice Mandhane to establish liability on a civil standard under this new tort is as follows:

The plaintiff must establish the existence of 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.

A vital feature of the new tort established by Justice Mandhane was that the damages were based on patterns of violence, not individual incidents. Thus, relationships that were simply unhappy or dysfunctional would be insufficient in establishing the new tort.

Appeal

On the appeal of Justice Mandhane’s decision, the husband argued that the new tort of family violence was too broad and thus would cause a stark rise in litigation due to its applicability. The wife disagreed, maintaining that the tort of family law violence is needed to address the impact of a pattern of abusive conduct since the existing torts are inadequate in doing so.

The Court of Appeal agreed with the husband, in doing so rejecting the tort of family violence.

Analysis by the Court of Appeal

Justice Mary L. Benotto for the Court of Appeal stated the main issues to be addressed were the following:

1. Inclusion of a Tort Claim: Did the trial judge err by including a tort claim in a family law action?
   • The trial judge did not err by including a tort claim in a family law proceeding.
2. Creation of a New Tort: Did the trial judge err by creating a new tort?
   • The trial judge erred by creating a new tort which was not required in this instance. Justice Mary L. Benotto found that the common law is a gradual evolution; thus, significant changes are to be made by the legislature. Therefore, new torts should not be created when existing torts are sufficient. Further, the current torts are flexible enough to address the reality that abuse has many forms.
3. Fashioning the Tort of Family Violence: Did the trial judge err in fashioning the tort of family violence?
   • The trial judge erred in fashioning the tort of family violence. The error is found by the trial judge adopting the definition of family violence created specifically for post-separation parenting plans and applying it to create a new cause of action. Therefore, the trial judge's actions ignored the legislature's intention.
4. Recognition of Coercive Control: Should this Court (Ontario Court of Appeal) recognize the tort of coercive control?
   • The Court disagreed with the tort of coercive control, finding that it would not recognize the proposed new tort. Significant changes may be best left to the legislature.
5. Assessment of Damages: Did the trial judge err in assessing damages?
   • Justice Mary L. Benotto agreed with the position taken by the trial judge in finding an award of compensatory and aggravated damages in the amount of $100,000. However, Justice Mary L. Benotto did not agree with the additional $50,000 awarded for punitive damages, thus allowing the appeal regarding the latter awarded amount.
6. Procedure for Tort Claims in Family Law: What is the procedure for a Court considering a tort claim in a family law action?
   • In a family law action, the Court must follow a specific procedure for tort claims. Justice Mary L. Benotto stated, “The Court should complete the statutory claims before assessing liability and damages for tort claims.”

Although the decision removed a pathway for survivors of family violence to claim a remedy in Ontario, it is essential to understand that it should not be perceived as a defeat or failure. From the decision, the Court acknowledged the harm of family violence and the importance of compensation for survivors and accountability for abusers. Furthermore, the Court affirmed the effectiveness of existing torts regarding family violence.

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[1] 2022 ONSC 1303 [Ahluwalia, ONSC]
[2] 2022 ONSC 1303 at para 1.
[3] 2022 ONSC 1303 at para 2.
[4] 2022 ONSC 1303 at para 54.
[5] 2022 ONSC 1303 ibid.
[6] 2022 ONSC 1303 at para 52.
[7] 2023 ONCA 476 at para 36 [Ahluwalia, ONCA]
[8] 2023 ONCA 476 at para 92
[9] 2023 ONCA 476 at para 102
[10] 2023 ONCA 476 at para 123
[11] 2023 ONCA 476 at para 141