Including Tort Claims in a Family Court Proceeding
Parties heading to family court over a separation or divorce may not be aware that they can include claims for damages arising from assault, battery, or intentional infliction of emotional distress in the family court proceeding itself. There is a growing body of cases where tort claims related to domestic violence have been adjudicated alongside claims for relief on parenting, support, or property issues in family court.
It is now considered best practice to include tort claims in the family law proceeding, rather than pursuing a tort claim separately in a civil action. As Justice Pazaratz stated in the case of Constantini v. Constantini, 2013 ONSC 1626, a consolidated action has the advantage of saving legal fees and court time, ensuring consistent outcomes, and allowing a tort judgment to be factored into the overall financial result.
The Ontario Court of Appeal confirmed the procedural framework for courts to follow in the Ahluwalia v. Ahluwalia decision (2023 ONCA 476). When addressing financial issues, judges in family court must first determine the statute-based claims for equalization of net family properties, spousal support, and child support before determining liability and damages for tort claims. This ensures the court will first assess whether property and support orders can address any inequities arising from the breakdown of the relationship.
The trend to include tort claims in a family law action is a positive development for survivors of domestic violence. A simplified court process reduces cost, delay, and stress.
Types of Claims
When there is domestic violence during a relationship, the most common tort claims are assault, battery, or intentional infliction of emotional distress. In family court, the claimant must prove the elements of the tort on a balance of probabilities.
A battery occurs when one person intentionally causes harmful or offensive contact with another person. A wide variety of acts of physical violence have led to awards of damages for battery in family court cases.
An assault is the intentional creation of the apprehension of imminent harmful or offensive contact. This may include verbal or written threats, pointing a weapon, aggressive or threatening gestures, physical intimidation, or many other behaviours that cause someone to fear immediate harm. Often, survivors of domestic violence report experiencing a sustained pattern of threatening behaviour or coercive control over time. The court’s decision in Ahluwalia confirmed that the cumulative effect of this pattern can cause the victim to live in a near-constant state of fear of imminent harm, meeting the standard for the tort of assault.
The tort of intentional infliction of emotional distress 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 plaintiff to suffer a visible and provable illness. The distress must go beyond the typical upset or strain that many people feel throughout a difficult relationship or separation. This claim is raised less frequently than other torts in family court proceedings. Perhaps it will become more common, given the Court of Appeal’s recent affirmation in Ahluwalia that the element of “visible and provable” injuries does not require expert medical evidence. However, evidence of the symptoms of injury and their effects is still necessary to succeed.
We will review the range of awards for these types of claims in family proceedings in the next column.
Awaiting Supreme Court Decision
The Ahluwalia v. Ahluwalia case looked at the formation of a brand-new tort of family violence. Following the Court of Appeal’s decision in 2023, the case was heard in the Supreme Court of Canada in 2025. The parties in the case and legal professionals across Canada still await the Supreme Court’s decision. Once released, the Supreme Court judgment may affect the types or use of domestic violence-related torts in family court proceedings. The team at Mann Lawyers will continue to monitor these developments.
This blog post was written by Rachel Reid, a member of the Family Law team. Rachel can be reached at 613-566-2055 or at rachel.reidmannlawyers.com.
