Ahluwalia v. Ahluwalia is a recent family law decision that has gained much attention, as it establishes the new common law tort of “family violence”.
Facts
The parties were married for 16 years before separating in July 2016. They had two children together. The issues at trial were property equalization, child support, spousal support, and the mother’s claim for damages in relation to the father’s alleged abuse during the marriage. The mother gave evidence of specific incidents of physical violence in addition to evidence of an overall pattern of emotional abuse and financial control. At the time of the hearing, the father had been charged with two counts of assault against the mother and one count of uttering threats to cause death for conduct that occurred during the marriage and remained outstanding.
Tort of Family Violence
Justice Mandhane specifically recognized a common law tort of family violence. Given the limitations of the Divorce Act, it was found that “only an award in tort can properly compensate for the true harms and financial barriers associated with family violence”. Existing torts were said to be insufficient to capture the uniquely harmful aspects of family violence which often go beyond specific incidents of assault and battery. It was further found to be “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”.
To define the elements of the tort, Mandhane J. referred to the definition of “family violence” found in s. 2 of the Divorce Act. Based on this definition, a plaintiff must establish:
Conduct by a family member towards the plaintiff, within the context of a family relationship, that:
- is violent or threatening, or
- constitutes a pattern of coercive and controlling behaviour, or
- causes the plaintiff to fear for their own safety or that of another person.
The test is further explained at para 53 as follows:
[53] Under the first mode of liability, the plaintiff must establish that the defendant/family member (“family member”) intended to engage in conduct that was violent or threatening (i.e., consistent with the well-recognized intentional torts of assault and battery). Under the second mode of liability, the plaintiff must establish that the family member engaged in behaviour that was calculated to be coercive and controlling to the plaintiff. Under the third mode of liability, the plaintiff must establish that the family member engaged in conduct that they would know with substantial certainty would cause the plaintiff’s subjective fear (i.e., consistent with battery, and/or intentional infliction of emotional distress).Further, at the outset of the trial, in dealing with the father’s argument on a preliminary matter that the mother’s tort claim was statute-barred by being outside the applicable limitation period, Mandhane J. ruled that it was not, as the parties were in an “intimate relationship” and/or in a relationship of dependency, such that according to s. 16(1)(h.2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, no limitation period applies in such circumstances.
While the tort of family violence is focused on the “long-term harmful patterns of conduct” by the family member, the plaintiff must provide evidence of 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”. An unhappy or dysfunctional relationship is an insufficient basis for liability in tort. Once liability is established, damages will be assessed with reference to various factors that include the circumstances, extent, duration and specific harm of the offensive conduct complained of.
Decision
Justice Mandhane found that while the family law framework is typically a complete code to allow for the fair, predictable, and efficient resolution of the parties’ financial issues post-separation, this marriage was not found to be “typical” given the violence and pattern of coercion and control by the father. Having applied the common law test for the tort of family violence, she found the father liable and awarded a total of $150,000 for compensatory, aggravated and punitive damages (being $50,000 under each of those heads of damages in this matter).
