The legal community, and certainly family law practitioners in Canada, continue to wait with bated breath on the impending decision from the Supreme Court of Canada (SCC) in relation to the Ahluwalia v Ahluwalia matter, and specifically, the possibility of new tort of violence.
Background
The parties in Ahluwalia were married in India in 1999 and immigrated to Canada shortly thereafter. In 2016 the parties separated and at trial the wife led evidence that her spouse was physically, emotionally, and financially abusive towards her. The wife’s evidence was ultimately accepted and specifically, that the husband had physically abused her in 2000, 2008 and 2013 and her claims of emotional abuse and threats of financial abandonment were also accepted. As a result, the trial judge created a new tort of “family” violence and awarded the wife $150,000 in damages. The trial judge reached this judgement by determining that the Divorce Act did not fully capture all of the legal issues embedded in cases where domestic violence is alleged and as a result assessed tort damages in a manner that relied on analogous American jurisprudence related to torts pertaining to “battered women’s syndrome” to establish the new tort of “family violence.
Court of Appeal
On appeal however, the Ontario Court of Appeal (ONCA) determined that it was unnecessary to create a novel tort and specifically that, “the law is clear that new torts should only be introduced where existing remedies are inadequate,” and that “In the circumstances of this case, existing torts, properly applied, address the harm suffered.”
In its analysis, while the ONCA underscored that the abuse was not in dispute and that the husband conceded he was liable for damages (taking issue with the amount awarded), the Court found that tort law by itself is not capable on its own of solving the problem of family violence and that, “the existence of family violence does not, by itself, justify the creation of a new tort.” The Court also added that creating new torts is only appropriate when there is a harm that “cries out” for a legal remedy that does not exist.
In relation to this matter and as it pertains to the three separate physical assaults that the husband inflicted on his spouse, the Court found that these incidents satisfied the requirements for the tort of battery and that a person living in a state of constant worry of harm satisfied the requirements for assault.
In addition, in relation to the tort of intentional infliction of emotional distress the Court of Appeal noted that the tort has three elements, “ (i) the defendant’s conduct was flagrant and outrageous; (ii) the conduct was calculated to harm; and (iii) the conduct caused the wife to suffer a visible and provable illness,” and ultimately found that the trial judge’s findings satisfied these requirements as well.
While the trial judge found that the problem with traditional torts is that these torts did not capture the pattern of conduct that is inherent in intimate partner violence, the Court of Appeal disagreed finding that, “Courts have considered the patterns of behavior that constitute intimate partner violence without limiting their focus to individual incidents,” and that in the context of existing torts, “courts have also specifically considered the pattern of abuse as a reason to award higher damages. In support of its position the Court of Appeal underscored the cases of Calin v. Calin, 2019 ONSC 3564 and Jane Doe 72511 v. Morgan, 2018 ONSC 6607 in which not only were substantial general and aggravated damages were awarded, but punitive damages as well.
Ultimately after considering the evidence and the jurisprudence the ONCA found that the trial judge had erred by creating a new tort which was not required. Despite this finding however, in reviewing the evidence the Court did not interfere with the compensatory or aggravated damages ($50,000 each). What is did do was to remove the additional $50,000 for punitive damages, finding that the trial judge did not address and made no finding that the award of general and aggravated damages was insufficient to achieve the goals of denunciation and deterrence. The Court of Appeal determined that this oversight was an error.
Next Steps
While it may be some more time before the SCC renders its decision, in reviewing the lower court decisions there does not appear to be a reason for the legal community to hold its breath and a collective exhale appears to be in order. If the new tort of family violence is permitted to stand it would certainly appear to be an effective instrument to exact justice on abusive spouses. However, should its creation not be permitted and recognized as the overarching banner of family law justice, abusive spouses/partners, as the ONCA quite rightly underscores, are not immune from persecution and financial penalty for their misdeeds as there are still plenty of specialized tools in the tort toolbox that can be used to carve out and fashion justice. And should this become reality after the SCC issues its decision, all family law lawyers would do well not to panic, breathe, and simply dust off their civil litigation textbooks.
This blog post was written by Samir Nawaz, a member of the Family Law team. He can can be reached at 613-369-5497 or at samir.nawaz@mannlawyers.com.
