Court of Appeal overturns Superior Court’s new tort of family violence

By Dickson Appell
Court of Appeal overturns Superior Court’s new tort of family violence

Ahluwalia v. Ahluwalia is a recent decision released by the Ontario Court of Appeal rejecting the new tort of family violence, which was created through the lower court decision (Ahluwalia v. Ahluwalia, 2022 ONSC 1303). At trial, the evidence introduced by the wife, Mrs. Ahluwalia, demonstrated a pattern of coercive controlling violence by her husband, Mr. Ahluwalia, throughout their marriage. The Ontario Court of Justice found that Ms. Ahluwalia was subjected to extensive emotional, psychological, financial, and physical abuse.

At trial, the Honourable Justice Mandhane accepted the wife’s evidence and found that existing torts did not properly capture the harm she suffered from her husband’s abusive behaviour over time. To fill this gap, Her Honour created a new tort of family violence. She framed the new tort around the definition of family violence found in Canada’s Divorce Act, specifically, addressing the 2021 amendments to the manner in which family law is addressed through the Divorce Act. She found that the husband was liable under this new tort and ordered him to pay damages in the amount of $150,000, which was to be paid from his share of the proceeds of sale from their matrimonial home.

The husband appealed the decision and argued that it was an error for the trial judge to recognize a new tort of family violence. Rather, he accepted liability under the existing tort of assault and intentional infliction of emotional distress but said it was unnecessary for the trial judge to establish a new tort given that his conduct was already captured by existing torts. As a further grounds for the appeal, the husband raised the ‘floodgate’ principle, arguing that this change in the law would lead to a huge rise of tort claims in family law litigation which had the possibility of changing the entire nature of family law. He also argued that the trial judge’s finding as to damages was excessive.

The wife rebutted during the appeal that the new tort of family violence should be recognized by the Court of Appeal as a way to deal with the cumulative pattern of harm to which she and other survivors of intimate partner violence have been subjected. In the alternative, she suggested that the Court of Appeal should instead recognize the more narrowly defined tort of coercive control that would still recognize the true nature of intimate partner violence, eliminate the need for the survivor to prove actual harm, while also lessening the floodgates argument raised by the husband.

In arriving at its decision, the Court of Appeal affirmed that while intimate partner violence does in fact exist in Canada as a societal problem, the central issue in this case was whether in the context of family law court proceedings – where there are already various remedies – a tort specific to “family violence” should be created.

The Court of Appeal rejected the new tort of family violence, finding that it was unnecessary given that the existing torts already recognize and address the different types of behaviour which constitutes intimate partner violence. The Court of Appeal also remarked that even if it was necessary to create a new tort, they did not agree with the trial judge’s reliance on the definition of family violence in the Divorce Act to frame such a tort. According to the Court of Appeal, this definition of family violence was only intended to be used for the purpose of making post-separation parenting orders.

The Court of Appeal also rejected the wife’s alternative submission to recognize the narrower tort of coercive control, finding that it would result in a radical change to the family law landscape that was better left for the legislature. Ultimately, the Court of Appeal reduced the damages award from $150,000 to $100,000. Although the Court of Appeal decided not to recognize the new tort of family violence, they did make it clear that survivors can bring a tort claim for intimate partner violence within a family court case.

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