Family violence has not historically been recognized as a civil tort, but recently in the matter of Ahluwalia v. Ahluwalia, 2022 ONSC 1303 [Ahluwalia], Justice Mandhane of the Ontario Superior Court of Justice awarded damages in the amount of $150,000 to Ms. Ahluwalia (the “Wife”) to be paid by Mr. Ahluwalia (the “Husband”).
In the decision, Justice Mandhane states that the marriage at issue was violent and characterized by abuse and a sixteen-year pattern of coercion and control on the part of the Husband. Justice Mandhane held that the damages suffered by the Wife cannot be compensated through spousal support as the Divorce Act specifically prohibits “misconduct” from being considered when an award of spousal support is made but that the facts required a remedy in tort that accounts for the breach of trust and the violence that punctuated the marriage, and that holds the Husband accountable for his actions.
Justice Mandhane’s decision explains that the creation of a new tort of family violence must be recognized because to cast the Wife’s claims under the intentional torts of battery or assault would be too narrow, and the unique qualities of family violence are not adequately captured under existing torts. Justice Mandhane writes:
A narrow focus on the intentional torts of battery or assault committed on specific days or at specific times would obscure the lived reality of family violence. In family relationships, the conditions of terror, fear, coercion, and control are often created through years of psychological abuse punctuated with relatively few acts of serious physical violence. In practice, a perpetrator need only administer one hard beating at the beginning of a marriage to create an imminent threat of daily violence. Focusing too narrowly on specific incidents risks minimizing the tortious conduct, which is the overall pattern of violence and coercive behavior combined with a breach of trust.
To establish the new tort of family violence, it must be shown that the spouse “engaged in a pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or killing or harming an animal or property.” Merely showing that the relationship was unhappy or dysfunctional is insufficient. The circumstances, extent, and duration of the family violence, as well as specific harm, will be considered when determining damages.
Justice Mandhane noted in her decision that incorporating the tort of family violence as part of a family law matter is required so that parties have a reasonable chance to achieve justice and that it is “unrealistic to expect a survivor to file both family and civil claims to receive different forms of financial relief after the end of a violent relationship.” This new tort addresses the cumulative impact of an abusive marriage and provides recourse for an abused party to seek financial compensation outside of spousal support so that they may seek the counselling and assistance necessary to rebuild their life.
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