Offices in Ottawa and Perth
(613) 722-1500

CONTACT US (613) 722-1500

An Update on the Tort of Family Violence

An Update on the Tort of Family Violence

By:

Posted May 2, 2023

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, [1987] 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:

  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.

Justice Mandhane noted further:

  1. Under the first prong, the plaintiff must establish that the defendant intended to engage in conduct that was violent or threatening;
  2. 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;
  3. 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.
  4. It is the pattern of behaviour that must be compensated, not the individual incidents; and
  5. 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.

This blog post was written by Kate Jechel, a member of the Family Law team.  She can be reached at 613-566-2055 or at Katelyn.Jechel@mannlawyers.com.

More Resources

Blog |
Employment, Labour, and Human Rights, Commercial Litigation

By: 

Posted May 23, 2023

Both in my commercial and employment litigation practice, I encounter Ontario business owners faced with serious charges laid against them under the Provincial Offences Act[...]
Blog |
Family Law

By: 

Posted May 18, 2023

The recent Supreme Court of Canada decision in Anderson v. Anderson, 2023 SCC 13, provides guidance on domestic contracts and the enforceability of an informal[...]
Blog |
Environmental Law

By: 

Posted May 16, 2023

When many people think of contaminated sites, they think of the usual suspects such as industrial properties and gas stations.  They may not think of[...]
Blog |
Business Law

By: 

Posted May 9, 2023

Often business owners reach a point where they are considering the sale of their business either through the sale of shares or the sale of[...]
Blog |
Employment, Labour, and Human Rights

By: 

Posted April 25, 2023

In a case that recently was decided from the Court of Appeal of Ontario called Celestini v Shoplogix Inc., 2023 ONCA 131, the Court had[...]
Blog |
Real Estate

By: 

Posted April 17, 2023

On Tuesday, March 28, 2023, the federal government released Budget 2023. The House of Commons returns today (April 17, 2023), and debate in the House[...]

Subscribe to Our Newsletter

"*" indicates required fields

Name*
Consent*
This field is for validation purposes and should be left unchanged.