You may remember my previous blog of February 2021, where Ontario welcomed the new tort of internet harassment. The recognition of new common law torts is not an everyday occurrence. Coincidentally, a year later, in February of 2022 Ontario welcomed another new tort: the tort of family violence.
After an intensive 11-day trial, Mandhane J. awarded $150,000 in compensatory, aggravated and punitive damages to Mrs. Ahluwalia on the basis of this new tort (apportioned as $50,000 in each type of damage) in Ahluwalia v. Ahluwalia.
Mr. and Mrs. Ahluwalia were highly educated immigrants who were married in India, and together immigrated to Canada. From the outset, their family roles were traditional, with Mrs. Ahluwalia focusing on caregiving to their two children, and Mr. Ahluwalia establishing a successful trucking company.
After the couple separated in 2016, Mr. Ahluwalia commenced litigation. Mrs. Ahluwalia alleged both physical and emotional abuse, as well as a pattern of financial control, and in doing so, added a new claim which would become the basis of this new tort.
The New Tort of Family Violence
Mandhane J. considered whether Mrs. Ahluwalia’s tort claim should properly be considered as part of the family law proceedings. Typically, these proceedings are related to parenting (e.g., decision-making responsibility, parenting time) or the financial allocation of assets. The Divorce Act was meant to create a complete statutory scheme when it comes to financial issues post-separation, and Parliament has cautioned Courts against arming family law litigants and over-complicating already acrimonious proceedings through “speculative and spurious tort claims”.
However, on a review of recent amendments to the Divorce Act, Her Honour found that although Parliament has explicitly recognized the “devastating, life-long impact of family violence on children and families”, “despite this statutory recognition” the Divorce Act does not actually create a “complete statutory scheme” to address all the legal issues which arises in a situation of alleged family violence.
Finding the authority to develop a new foundation for liability “where the interests are worthy of production and the development is necessary to stay abreast of social change”, Mandhane J. laid out the test of this new tort. To establish liability in a civil context, the plaintiff must establish conduct by a family member towards the plaintiff, within the context of a family relationship that:
- Is violent or threatening, or
- Constitutes a pattern of coercive and controlling behavior, or
- Causes the plaintiff to fear for their own safety or that of another person.
Family violence is different from spontaneous violence from a stranger. It is patterned and occurs in a familial context. As such, the plaintiff must succeed in proving on a balance of probabilities that a family member engaged in a pattern of conduct that involves more than one incident of any 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”.
Family Violence Tort and Estate Litigation?
In many ways, Ahluwalia v. Ahluwalia is reminiscent of R v. Lavallee where our Supreme Court recognized “battered wife syndrome” for the first time. In that case, it was recognized that a long-abused “battered wife” could sense imminent danger from her abusive partner, and her pre-emptive actions could be classified as self-defence in cases where it wouldn’t likely be between strangers.
This new tort is a major step forward in our Courts’ goal of staying “abreast of social change”. By recognizing nuanced family dynamics, this tort allows better compensation and protection of vulnerable family members.
There are many parallels between estate and family litigation. Both tend to involve highly emotional disputes between family, and there are areas of convergence such as on the law of dependant support from a living partner, and on their death, dependant support from their estate. Issues of familial abuse are not uncommon.
Could this new family violence tort be extended in the future to beneficiaries in applicable situations of estate litigation? While a purpose of tort law is deterrence and the maintenance of a peaceful society (specifically, this is the goal of punitive damages), unlike criminal law, that is not its main purpose. Arguably, the main goal of torts is in line with the goal of many common claims in estate litigation: compensation. Therefore, unlike criminal proceedings which typically end on the death of the accused, tort claims can continue against a deceased person’s estate (see section 38(2) of the Trustee Act).
Estate litigators may wish to keep an eye on the development of this tort. Will this new tort have a future role in estate law? As I’ve blogged last year: only time will tell.