The long-awaited Court of Appeal decision in Ahluwalia v. Ahluwalia was released on July 7th, 2023. Justice Mary Lou Benotto, writing for the Court of Appeal, started the decision with sobering statements:
“Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation.”
“What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.”
“The issue before the court is not whether intimate partner violence exists. It does. It is not about whether societal steps should be taken to ameliorate the problem. They should be.”
Family Violence Tort
In February 2022, Justice Mandhane of the Ontario Superior Court of Justice created a novel tort of domestic violence. The Court of Appeal had to decide if this tort was necessary or if there were other already existing remedies for victims of family violence.
Justice Benotto acknowledged that a tort of family violence or coercive control would recognize and address the harm caused by one person to another. However, Justice Benotto concluded that a new tort was not needed. It was confirmed that the appellant had subjected the respondent to years of physical, psychological, emotional and financial abuse which constituted behaviour calculated to be coercive and controlling. The judge noted that long-term, harmful patterns of conduct that are designed to control or terrorize fall squarely within the existing jurisprudence on battery, assault, and intentional infliction of emotional distress. For this reason, it was determined that a new tort of family violence is not necessary.
Pattern of Violence
Justice Benotto also addressed the concern that the existing torts of assault, battery, and intentional infliction of emotional distress might overlook the patterns of conduct that characterize intimate partner violence. The judge explained that, on the contrary, courts have considered the patterns of behaviour without focusing only on individual incidents. It was also noted that courts have specifically considered the pattern of abuse as a reason to award higher damages. Justice Benotto acknowledged that isolated incidents that may not be seen as concerning on their own can become quite serious by virtue of the repetitive nature of the incidents.
Coercive control is a form of domestic abuse that involves a pattern of behaviour that undermines the victim’s autonomy, dignity, and well-being. It may include isolation, intimidation, manipulation, degradation, and threats. Coercive control can have severe and lasting effects on the victim’s mental and physical health.
The appellate court determined that it was not necessary to recognize a new tort of coercive control as the existing tort of intentional infliction of emotional distress provides an adequate remedy. It was noted that in this specific case, the victim had visible and provable injuries, thus it was not necessary to make significant changes to the law based on a hypothetical. The court acknowledged that there may be cases where the victim of coercive control does not have visible or provable injuries, and where the existing tort of intentional infliction of emotional distress may not capture the full extent of the harm. In such a case, a new tort of coercive control may be necessary. Justice Benotto, however, pointed out that such a fundamental change to tort law may be better left to the legislature, which could conduct extensive consultations and research on the issue.
As a final note, I emphasize the insightful observations of Justice Benotto on how family law affects families:
“Family law affects not just the parties, but their children, their extended families and society at large. And for every claim that has merit, there are some which involve claims made for strategic reasons. That is why, for decades, progressive elements in family law sought to move away from the fault allegations that were shown to cause permanent and ongoing damage to the family.
It took time, but the move away from an adversarial approach towards a resolution-based approach has been adopted. Law schools offer courses in negotiation for family law. Collaborative law associations have been established. The Family Law Rules require three conferences with a judge prior to proceeding to trial. This has significantly reduced the number of cases that actually proceed to trial. The aim is to reduce conflict so as to assist families to better function cooperatively after separation.”
Justice Benotto noted that this is not to suggest that shifting cases involving intimate partner violence from the court system is appropriate. Instead, screening tools and protocols to address intimate partner violence in family law matters are being acknowledged as necessary. The Ontario Domestic Violence Death Review Committee has identified a history of domestic violence and a pending separation as the top two risk factors for domestic homicides. This shows the importance of having standards for domestic violence screening.
Mediators in Ontario are required to complete extensive domestic violence training, and because of Keira’s Law (Bill C-233), federal judges will now be educated on intimate partner and family violence. Family lawyers are not yet required by the Law Society of Ontario to complete domestic violence training, but this is a necessary and urgent step to ensure the safety and well-being of families going through a separation.
We are all wondering whether this case will move to the Supreme Court of Canada. Julie Hannaford, a lawyer for Ms. Alhuwalia has said that “now that the Court of Appeal has spoken, Ms. Alhuwalia and her counsel are taking the time to carefully review this important decision.”
The full decision can be found here.