The widespread prevalence of family violence in Canada is recognized by both the judiciary and the legislature as a significant problem. However, how Canadian family courts deal with violence has been the subject of debate in recent years.

In the case of Ahluwalia v Ahluwalia, 2022 ONSC 1303, the Supreme Court of Ontario took a bold approach to this question by creating a novel tort of family violence to compensate the victim for violence suffered during the relationship.

Justice Renu Mandhane exercised a seldom used judicial power to establish the novel tort of family violence. It is well established that the discretion of trial judges to create novel torts must be used judiciously—only to safeguard important interests and in response to evolving social norms.  Establishing a tort that specifically addresses family violence, Justice Mandhane argued, is appropriate given its uniquely insidious nature.

Availability of the tort meant that victims of intimate patterner violence could seek redress through the family law process. To establish liability, Justice Mandhane outlined the need for claimants to demonstrate a pattern of violent or coercive behaviour by the abusive family member. Once established, the court would then consider the circumstances, extent, duration, and specific harm caused by the violence to determine the appropriate damages award.

The wife had been subjected to years of abuse and coercive control at the hands of the husband. The parties came before Justice Mandhane to resolve the typical gambit of family law issues including spousal support, child support and division of assets. Justice Mandhane found, in addition to these questions, that the husband was liable for damages for the tort of family violence. Justice Mandhane held that the no-fault nature of the Divorce Act does not appropriately address the serious issue of family violence. The Judge opined that, “[a]llowing a family law litigant to pursue damages for family violence is a matter of access to justice.” The wife was awarded $150,000 in damages for compensatory, aggravated, and punitive damages for the tort of family violence.

However, this decision was recently appealed to the Court of Appeal. There, Justice Benotto rejected the creation of the novel tort, explaining that existing torts of battery, assault and intentional infliction of emotional distress were adequate remedies for addressing family violence. The Court of Appeal excluded the punitive damage award of $50,000 but upheld the $100,000 award for compensatory and aggravated damages finding it was sufficiently high to achieve the court’s goals of denunciation and deterrence of family violence.

Benotto was concerned that recognizing a novel tort would reintroduce allegations of spousal misconduct into our family law system. It took decades to remove fault from family law, which, according to the Court of Appeal, “[was] shown to cause permanent and ongoing damage to the family.” Removing fault was an effort to move family law proceedings away from the harmful adversarial process towards a resolution-oriented one, which is thought to be better for the parties, their children, and society at large.

In the opening paragraphs of the Court of Appeal decision, Justice Benotto recognized the pervasive issue of family violence in Canada and took a strong stance on the need for the legal system to condemn it. By dismissing the novel tort, victims of family violence must rely on current legal remedies for redress including criminal charges and established torts. The concern over reintroducing fault into family law and the emphasis on a resolution-oriented approach underscore the delicate balance in addressing family violence within the family law framework.