Overview of Tort Claims in Family Matters
Tort claims can be made in family law matters, so as to prevent a multiplicity of proceedings and to promote efficiency and convenience. An existing civil claim may be combined on motion with a family matter pursuant to rule 12(5) of the Family Law Rules. You may also be able to plead tort damages from the outset in a family law matter, though there is inconsistent case law in this regard.
The classic tort claims we think of include the intentional torts of battery, assault, intentional infliction of mental suffering, and claims related to reputation and privacy, as well as negligence claims. In 2022, Justice Mandhane of the Ontario Superior Court of Justice rendered a groundbreaking decision in which she recognized a new tort: family violence.
The Case That Started It All: Ahluwalia
In Ahluwalia v Ahluwalia, 2022 ONSC 1303, the self-represented mother sought damages for the family violence she experienced during the marriage and argued that recognition of the tort of family violence is necessary given the emphasis on “family violence” in the amendments to the Divorce Act. The father raised concerns that such claims would derail the family law process and would make it more difficult for parties to co-parent in the future, in reliance on Frame v Smith,  2 SCR 99 (SCC).
Justice Mandhane did note that the “Court must be careful not to arm family law litigants to overly complicate the litigation through speculative and spurious tort claims”. However, Justice Mandhane ultimately recognized a common law tort of family violence “based on the existing case law related to spousal battery, explicit recognition of the harms associated with “family violence” in the Divorce Act, recent provincial legislation that removes other legal barriers facing survivors leaving violent relationships, developments in the American caselaw, and Canada’s international law obligations related to women’s equality”. The definition of “family violence” in section 2 of the Divorce Act is the starting place for the analysis of such claims. Justice Mandhane outlined the elements of this new tort to be established by the plaintiff:
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 behaviour; or
- Causes the plaintiff to fear for their own safety or that of another person.
Justice Mandhane noted further:
- Under the first prong, the plaintiff must establish that the defendant intended to engage in conduct that was violent or threatening;
- Under the second prong, the plaintiff must establish that the defendant engaged in behaviour that was intended to be coercive and controlling to the plaintiff;
- Under the third prong, the plaintiff must establish that the defendant engaged in conduct that they would know with substantial certainty would cause the plaintiff’s subjective fear.
- It is the pattern of behaviour that must be compensated, not the individual incidents; and
- The plaintiff will have to plead and prove on a balance of probabilities that the defendant engaged in a pattern of conduct that included more than one incident – it is insufficient to point to an unhappy or dysfunctional relationship as a basis for liability in tort.
The development of this tort is hugely significant in recognizing that compensation for domestic violence is needed to assist victims in leaving abusive situations, assist in addressing the long-term impacts of the harm, and deter future abuse. There are, however, concerns about this tort further burdening the family law system and increasing conflict in family law matters.
An Update on Ahluwalia
It has now been more than a year since the release of this decision, but there have been very few cases that have followed it. At present, only four (4) cases across Canada have cited Ahluwalia: R v Hercules, 2022 ONCJ 112, MAB v MGC, 2022 ONSC 7207, DN v BN, 2022 BCSC 2029, and R v BF, 2022 QCCQ 1719. Ahluwalia v Ahluwalia has been appealed to the Ontario Court of Appeal and submissions were made in late-March. We are all waiting on bated breath for the Court of Appeal’s decision to see whether this remains good law, and look to see whether cases in Ontario will follow this decision.