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Ontario Court Creates The “Tort of Family Violence”

Late last year a BC Supreme Court decision illustrated the fact that civil consequences for domestic violence can sometimes greatly outweigh even criminal consequences in a case where over $800,000 in damages were ordered to be paid.

This month the judiciary in Ontario blazed new legal ground by creating the tort of “family violence”.

In the recent case (Ahluwalia v. Ahluwalia)  the parties were involved in divorce proceedings following a violent marriage.  Over and above  the typical payments for spousal support the Court created the tort of ‘family violence’ and ordered $150,000 in damages to be paid for this wrong.  In creating this new tort the Court provided the following reasons:

[4]               On the most contentious issue, the Mother’s claim for damages, I am prepared to award $150,000 in compensatory, aggregated, and punitive damages for the tort of family violence. I recognize that making such a significant damage award is well-outside the normal boundaries of family law. In the typical marriage, characterized by economic interdependence and mutual support, the family law statutory framework will be a complete code that allows for the fair, predictable, and efficient resolution of the parties’ financial issues post-separation.

The Court set out the following reasons creating the tort and its elements:

[52]           To define the modes of liability underlying the new tort of family violence, the proper starting point is the definition of “family violence” found in s. 2 of the Divorce Act. Based on this statutory definition, to establish 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.

[53]           Under the first mode of liability, the plaintiff must establish that the defendant/family member (“family member”) intended to engage in conduct that was violent or threatening (i.e., consistent with the well-recognized intentional torts of assault and battery). Under the second mode of liability, the plaintiff must establish that the family member engaged in behaviour that was calculated to be coercive and controlling to the plaintiff. Under the third mode of liability, the plaintiff must establish that the family member engaged in conduct that they would know with substantial certainty would cause the plaintiff’s subjective fear (i.e., consistent with battery, and/or intentional infliction of emotional distress).

[54]           While the tort of family violence will overlap with existing torts, there are unique elements that justify recognition of a unique cause of action. I agree with the Mother that the 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. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse. These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the existing torts are 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. For example, the tort of intentional infliction of emotional distress requires showing that a specific interaction or behaviour was “flagrant and outrageous” and resulted in injury.  In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.

[55]           That all being said, to 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.

[56]           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.

[57]           Once liability, is proven, the nature of the family violence—circumstances, extent, duration, and specific harm—will all be factors relevant to assessing damages. Aggravated damages may be awarded for betrayal of trust, breach of fiduciary duty, and relevant post-incident conduct. Punitive damage awards will generally be appropriate given the social harm associated with family violence.

Assault, Battery, Emotional Harm, Family Violence, Tort of Family Violence