The New Tort of Family Violence Recognized in Ontario’s Ahluwalia v. Ahluwalia

In the ground-breaking case of Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (CanLII), Justice Mandhane of the Ontario Superior Court of Justice decided a case where the Wife claimed damages (financial compensation) due to the Husband’s alleged abuse of her during the marriage. The Wife’s claim for damages due to the Husband’s alleged abuse was in addition to the her claims regarding property division, child support and spousal support. Justice Mandhane commented on the harm caused by family violence and granted damages of $150,000 to the Wife in compensatory, aggregated and punitive damages for a newly recognized tort of family violence.

A tort is a type of civil claim that would not typically be joined with a Family Law action, but Justice Mandhane found that allowing a family law litigant to pursue damages for family violence in the family law action supports better access to justice.

Justice Mandhane noted that the tort of family violence has unique elements that justifies establishing a unique type of tort. She stated that existing torts do not fully capture the cumulative harm associated with a pattern of coercion and control within an intimate relationship.

The definition of family violence under section 2 of the Divorce Act includes sexual abuse, threats to kill, harassment, failure to provide the necessaries of life, psychological abuse, financial abuse and more.  Justice Mandhane found that the Husband in this case engaged in multiple forms of family violence, including physical abuse, psychological abuse, financial abuse and threats to kill.

Justice Mandhane noted that to establish “family violence”, a person claiming damages must prove on a balance of probabilities that the family member engaged in a pattern of family violence and must provide evidence of specific conduct with specific examples. In this case, the Wife was successful because she was found to be the more credible witness. She recounted specific events of family violence that occurred in addition to the Husband’s general pattern of family violence during the marriage.

In summary, Justice Mandhane’s decision stated:

  1. The 2021 reforms to the Divorce Act have explicitly recognized devastating, life-long impacts of family violence on children and families.
  2. A tort is valid when a breach of a recognized legal duty has occurred and damages are appropriate.
  3. Emerging case law from the USA has recognized a similar tort framed along the lines of “battered women syndrome”.
  4. To establish family violence under section 2 of the Divorce Act, the person making the claim must establish that the conduct is threatening or violent, there is a pattern of coercive and controlling behaviour, and the person fears for their safety or the safety of another.
  5. The current available torts do not properly capture the harmful aspects of family violence such as the pattern of coercion and control that is a prevalent factor of family violence.
  6. The person claiming family violence must prove on a balance of probabilities that there is a pattern of family violence and more than one incident.

It is important to note that Justice Mandhane decision will apply to future decisions in Ontario, but Alberta Courts may decide not to follow this case. Whether a tort of family violence will be recognized by Alberta Courts or by the Supreme Court of Canada remains to be seen.

As of the date of this post, the new tort of family violence established by this case has not yet been considered by a Court of Appeal. We will be closely watching developments in this area of law.

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