Appeal court finds new tort of family violence is unnecessary

By Tony Poland, LegalMatters Staff • The Ontario Court of Appeal (ONCA) reached the right conclusion in rejecting the creation of a new tort of family violence, says Toronto family lawyer A. Julia P. Tremain.

In Ahluwalia v. Ahluwalia, the court struck down a landmark Superior Court decision that created the tort.

“The OCNA did a thorough examination of the issue. The bottom line is that they were very clear that domestic violence is an appalling situation that certainly needs to be addressed,” says Tremain, a partner with Waddell Phillips Professional Corporation. “It is obvious that they take this issue seriously.

“I looked at the case from both sides. Ultimately, I came down on the side of the Court of Appeal,” she tells LegalMattersCanada.ca. “We already have remedies in our legal system to deal with domestic violence.”

Tremain, who was not involved in the case but comments generally, says the decision brings clarity to the family law bar.

‘There have been differing views about this issue’

“There have been differing views about this issue,” she says. “When the lower court decision came out, there were many people who wanted to claim the tort of family violence. However, because the ruling was under appeal, nobody knew whether they had a claim or not.” 

In the Superior Court decision, Justice Renu Mandhane ordered a man to pay his former wife $150,000 in damages for abuse that occurred during a 16-year “pattern of coercion and control.”

In her ruling, Mandhane stated that while the tort of family violence would overlap with existing torts, “there are unique elements that justify recognition of a unique cause of action.”

She wrote that she agrees with the wife “that the existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness.”

“These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse,” she stated. “These uniquely harmful aspects of family violence are not adequately captured in the existing torts.

Existing torts focus on specific incidents

“In general, the existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize.” 

As an example, Mandhane stated the tort of intentional infliction of emotional distress requires showing that a specific interaction or behaviour was “flagrant and outrageous” and resulted in injury. 

“In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents,” she concluded.

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The ONCA heard that the husband objected to the “novel tort,” arguing it should not be recognized. According to the judgment, he said it is “poorly constructed, too easy to prove, would apply to a vast number of cases, and would create a floodgate of litigation that would fundamentally change family law.”

In striking down the decision, the Court of Appeal writes that 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,” Justice Mary Lou Benotto writes on behalf of the court. “The issue is whether, in the context of family law court proceedings – where numerous and varied remedies already exist – a tort specific to ‘family violence’ should be created.

Does not justify creation of a new tort

“The existence of family violence does not, by itself, justify the creation of a new tort,” she adds. “The creation of a new tort is only appropriate when there is a harm that ‘cries out’ for a legal remedy that does not exist.” 

As well as rejecting the tort, the appellate court also reduced the damage award to the wife to $100,000.

Tremain says recent changes to the Divorce Act addressing domestic violence, along with heightened awareness of the issue, have had a positive impact.

“It has been only recently, in the last five or 10 years, that people become even more attuned and aware of the issue of domestic violence,” she says. “Domestic violence has always been around, of course, but many times it wasn’t taken as seriously as it should have been.”

An attitude once existed that if a person was convicted of domestic abuse and punished that should be the end of it, Tremain says. 

“The thinking was if the person had paid the price for their behaviour they could start afresh. Let’s just move on,” she explains. “However, that doesn’t necessarily take into account the ongoing effect that the abuse has on the victim of the violence.”

Tremain says a victim may no longer be able to trust their former partner, not knowing if the abuse will reoccur.

‘The fear doesn’t just disappear’

“If the victim has children with their abuser, they are essentially still tied to them,” she says. “They may have a fear of even exchanging the children, wondering if the other person is going to get angry and strike out. The fear doesn’t just disappear.”

While there is always more that can be done to deal with domestic abuse, creating a new tort is unnecessary, says Tremain, pointing to the ONCA contention that “existing torts already address patterns of behaviour, for both liability and damages.”

In summarizing the case, the Court of Appeal stated that the trial judge found the husband “had subjected the respondent to years of physical, psychological, emotional and financial abuse constituting behaviour calculated to be coercive and controlling.”

“These facts fall squarely within the existing jurisprudence on battery, assault and intentional infliction of emotional distress,” Benotto writes.