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Written by: Annette Nyland
The short answer is yes, but the decision allowing spouses to be awarded damages for abuse and/or domestic violence is being appealed. The Divorce Act was amended in March 2021 and the definition of family violence now includes “a pattern of coercive and controlling behaviour” and conduct that “causes the plaintiff to fear for their own safety or that of another person”.
Justice Renu Mandhane, an Ontario Superior Court Justice, awarded damages in the amount of $150,000.00 for spousal abuse to a man’s ex-wife on February 28, 2022. This is the first time a Canadian court has recognized the civil tort of family violence. The case is Ahluwalia v. Ahluwalia 2022 ONSC 1303.
WHAT HAPPENED IN AHLUWALIA V. AHLUWALIA
Mr. A’s ex-wife, Ms. A, suffered physical abuse, coercion and control during the parties’ 16-year marriage at the hands of Mr. A. Ms. A. asked the court for a claim for “general, exemplary and punitive damages for the physical and mental abuse suffered by the wife at the hands of the husband.”
THE TEST TO MEET FOR THE TORT OF FAMILY VIOLENCE
At trial, Justice Mandhane found that there is a need for the tort of family violence in cases where there was a “long-term pattern of violence, coercion and control”. The victim must prove that the offending party:
- Intended to engage in violent or threatening behaviour;
- Engaged in behaviour that was calculated with a pattern of coercive and controlling behaviour; or
- Caused the victim to fear for their safety or the safety of another person knowing with substantial certainty that their behaviour would cause the victim to be subjectively fearful.
Once any of these three elements are proven, then the offending party is deemed to be liable in committing the tortious act of family violence. It is also important to note that physical violence is not a requirement for the new tort of family violence. It can be claimed if there is emotional abuse as well.
EMOTIONAL ABUSE AND/OR FINANCIAL ABUSE CAN COUNT AS FAMILY VIOLENCE
Justice Mandhane stated:
“While the tort of family violence will overlap with existing torts, there are unique elements that justify recognition of a unique cause of action. I agree with the Mother 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 patters can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse.”
Ontario is a no-fault province when it comes to family law, however, this ruling, could shift the no-fault premise of family law. The ruling has been appealed and family law lawyers are waiting to see what a higher court decides on this issue.
Disclaimer – This article contains legal information, based on a court ruling, that is under appeal. If you require legal advice, based on the particular facts of your matter, please contact our office to book a complimentary 30-minute consultation.