|
Family - Statutory and Tort. Ahluwalia v. Ahluwalia
In Ahluwalia v. Ahluwalia (Ont CA, 2023) the Court of Appeal considered the interaction between tort and statutory family law, here the practical sequential/procedural interaction:What is the procedure for a court considering a tort claim in a family law action?
[134] The trial judge began her analysis with the tort claims. She then addressed child support, spousal support, and equalization. She found the appellant owed (i) $20,788 in retroactive child support, and $802.20 per month going forward to the end of 2022; (ii) retroactive spousal support of $47,188 and periodic payments of $822 per month while child support remained payable, and $2,224 monthly until the earlier of the appellant’s retirement and 65th birthday. The equalization payment was agreed to on appeal in the amount of $5,296.00 based on the value of $16,950 for the husband’s business.
[135] These payments, added to the damage award, resulted in the respondent receiving all the proceeds of the matrimonial home. Although the parties agreed to the equalization on appeal, proper net family property statements were not addressed by the trial judge. In effect, the damage claim subsumed the trial and the statutory entitlements of the parties.
[136] The starting point for a determination of financial issues arising from the marriage is the application of the statutory provisions which, in this case are the Divorce Act and the Family Law Act, R.S.O. 1990, c. F.3. Only after those determinations are made should the court consider other claims.
[137] When claims other than those arising directly from the statute are raised in a family law proceeding, the statutory entitlements may inform those determinations. This issue arises in other situations, for example, when a party makes a claim for unjust enrichment. This court has held that the provisions of the Family Law Act entitlements should be established first: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 501. It may be that the operation of the equalization provisions would resolve the claim: Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para 61.
[138] In Martin, Hoy A.C.J.O. (as she then was) explained at para. 66: “the aggrieved party's entitlement under the equalization provisions of the [Family Law Act] should first be calculated. Where appropriate, s. 5(6) of the [Family Law Act], which provides for an unequal division of net family properties where equalization would be unconscionable, should be invoked.”
[139] Likewise, in Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, Gillese J.A. stressed that the “starting point” for inequities arising out of marriage breakdown is the application of the statutory framework. The trial judge had begun his determination with a consideration of whether the businesses in question amounted to a joint family venture. This court concluded that “the trial judge erred by beginning his analysis with the question of family venture. He should simply have had recourse to the [Family Law Act].”
[140] I recognize that a tort claim differs from a claim in equity. A claim in equity may go to asset ownership. But the principle of first determining statutory entitlements, including equalization and corollary relief under the Divorce Act, is sound. Child support is a right of the child and cannot be set aside for later. A compensatory support award under the Divorce Act may impact the quantum of damages. If the abuse allegation involves financial abuse, there may be an order for unequal division of net family property.
[141] In my view, the court should complete the statutory claims before assessing liability and damages for tort claims. . Ahluwalia v. Ahluwalia
In Ahluwalia v. Ahluwalia (Ont CA, 2023) the Court of Appeal considered the interaction between tort and statutory family law, here the central issue of whether tort should be allowed in an otherwise statutory family law case (answer: they should):Did the trial judge err by considering a tort claim in a family law action?
[39] The appellant cautions against the expansion of tort claims in family law proceedings. He relies on Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, to support his position that it is up to the legislature, not the courts, to expand the categories of claims in family law. That case involved a father who sought to bring a claim for various torts against his former spouse, who had willfully denied him his court-ordered parenting time. La Forest J., for the majority, gave numerous reasons for rejecting the claim. He said, at paras. 11-12, that the legislature, in the Children’s Law Reform Act, R.S.O. 1980, c. 68, had created a complete code for issues of custody and access (as they were then known). Most importantly, the legislature had created sanctions and remedies for one party’s failure to comply with parenting orders. He thus held that “the statute shows a clear disposition not to permit recourse to the courts for civil actions of this nature.”
[40] La Forest J. also made obiter comments in Frame v. Smith about the “undesirability of provoking suits within the family circle”. “The disruption of the familial and social environment so important to a child's welfare,” he wrote, “may well have been considered reason enough for the law's inaction, though there are others.”
[41] There are three reasons why I conclude that Frame v. Smith does not provide a complete answer to the question before this court. First, in that case, the statutory scheme specifically addressed the harm the father had suffered: failure to comply with parenting orders. The legislature could have created a cause of action but did not, instead making provisions for fines and contempt orders. I do not agree that a general legislative intention to preclude tort actions in family law actions can necessarily be so readily inferred in this case. The Divorce Act includes no remedies for the harm suffered by the respondent.
[42] Second, courts have already recognized the addition of a tort claim in a family law proceeding. In Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, this court allowed a tort claim for conspiracy to proceed in a family law case. The claim was against family members who allegedly helped a party hide finances. Hourigan J.A. said, at para 44-46:As the Supreme Court suggested in Leskun v. Leskun, [2006] 1 S.C.R. 920, 2006 SCC 25, at para. 34, nondisclosure is the cancer of family law….
There is a related malady that often works hand-in-hand with nondisclosure to deny justice in family law proceedings. The problem is what I will call "invisible litigants". These are family members or friends of a family law litigant who insert themselves into the litigation process. They go beyond providing emotional support during a difficult time to become active participants in the litigation. Usually, their intentions are good, and their interference makes no difference in the ultimate result. However, sometimes they introduce or reinforce a win-at-all-costs litigation mentality. These invisible litigants are willing to break both the spirit and letter of the family law legislation to achieve their desired result, including by facilitating the deliberate hiding of assets or income.
If we were to accept the analysis of the motion judge, co-conspirators who engage in such behaviour could do so with impunity. [43] Third, if non-disclosure is the “cancer” of family law proceedings, intimate partner violence is the cancer of domestic relationships. Those who are victimized do not lose their remedies when they marry or begin a domestic partnership.
[44] When La Forest J. spoke in obiter about not provoking lawsuits within the family, he was speaking of an issue for which there was a direct statutory remedy. More importantly, in the 36 years since Frame was decided, society, the legislature, and the courts have come to recognize the reality of intimate partner violence and the need to condemn it.
[45] As a final note, some cases have relied on Frame v. Smith for the proposition that claims for intentional infliction of emotional distress are not permitted within the family law context at all: see Lo v. Lo (2009), 70 R.F.L. (6th) 309, at paras. 15-18 (Ont. S.C.); Murray v. Toth, 2012 ONSC 5815, at paras. 40-41. I would not endorse this broad statement. While Frame does rule out the availability of the tort on the facts of that case—i.e., where one party is wilfully denying another parenting time following a marriage breakdown—it does not bar relief for intentional infliction of emotional distress during a marriage.
[46] For these reasons, the trial judge did not err by including a tort claim in a family law proceeding. . Ahluwalia v. Ahluwalia
In Ahluwalia v. Ahluwalia (Ont CA, 2023) the Court of Appeal considered the important issue of the interaction between tort and statutory family law. In these quotes the trial court lays out their considerations for the creation of a new tort of 'family violence' [SS: ultimately the tort failed]:[16] The wife brought an action for statutory relief—divorce, child support, spousal support, and property equalization—and also claimed damages for the husband’s conduct during the marriage.
[17] The trial judge held that the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), did not create a complete statutory scheme for addressing all the legal issues arising in a situation of alleged family violence. Spousal support awards remained narrowly focused on compensation and economic fallout of the marriage rather than fault and misconduct. Accordingly, she held that an award in tort was proper. “The no-fault nature of family law must give way,” she wrote, “where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support.”
[18] While she considered it “unrealistic” to expect survivors of family violence to file two separate claims to receive different forms of financial relief, she stressed the important role of case management judges to ensure that tort claims were genuine at the pleadings stage. Moreover, case management judges should presumptively order, as Price J. did in this matter, that the tort and statutory claims be tried together.
[19] The trial judge then recognized a new tort of “family violence”. She concluded that there were interests worthy of protection and that development in the law was necessary to stay abreast of social change. She considered case law from the United States which recognized a tort of “battered women’s syndrome”. While that tort overlapped significantly with existing American torts, it was “fundamentally different in terms of the assessment of liability, causation, and damages”.
[20] The trial judge was concerned that focusing on narrow methods of liability did not adequately address the day-to-day reality of family violence. For example, “one hard beating at the beginning of a marriage” could create a constant imminent threat of violence and focusing liability on the one incident risked obscuring that fact. She considered the paucity of damage awards for inter-spousal violence as evidence of the problems associated with addressing family violence through existing torts and noted that earlier cases were “out-of-step with the evolving social understanding about the true harms associated with family violence”. She approvingly cited to the case of Schuetze v. Pyper, 2021 BCSC 2209, where a trial judge awarded damages of $795,029 for an incident of physical violence in an intimate relationship.
[21] The trial judge viewed recognition of the new tort as in line with the compensatory goals of tort law. She cited Martin J.’s concurring reasons in Michel v. Graydon, 2020 SCC 24, 449 D.L.R. (4th) 147, where she emphasized the negative effects of the economic vulnerability of survivors of intimate partner violence on their ability to access justice. A tort remedy would give survivors avenues to pursue accountability as well as financial independence through a single proceeding, potentially making it more realistic for some women to leave violent relationships.
[22] The trial judge also viewed recognition of the new tort as in line with Canada’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”). In General Recommendation No. 35 (2017), UN Doc. CEDAW/C/GC/35, the UN treaty monitoring body, the Committee on the Elimination of Discrimination against Women, recommended states parties (of which Canada is one) implement legislative measures ensuring survivors of domestic violence “have access to justice and to an effective remedy”, including civil remedies. Finally, she noted that recognition of a new tort was consistent with the standard of individual personal responsibility, and she considered that courts needed to condemn violence in domestic relationships.
[23] The trial judge defined the elements of this new tort. She considered the proper starting point to be the statutory definition of “family violence” in s. 2 of the Divorce Act. Based on that definition, she held that a plaintiff could establish a defendant’s liability through any of three modes: (1) intentional conduct that was violent or threatening; (2) behaviour calculated to be coercive and controlling to the plaintiff; or (3) conduct the defendant would have known with substantial certainty would cause the plaintiff to subjectively fear for their own safety or that of another person. While these modes of liability overlapped with existing torts, she considered 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”. While intentional infliction of emotional distress, for instance, requires showing that a specific interaction or behaviour was “flagrant and outrageous” and resulted in injury, family violence would allow consideration of, and compensation for, the pattern of violence, not just the individual incidents.
[24] In finding liability for family violence, the trial judge stressed that the focus must be on specific, particularized conduct, including reference to specific incidents, rather than bald assertions. There had to be “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”. An unhappy or dysfunctional relationship would not suffice. Once liability was proven, the nature of the family violence would be relevant to damages, with aggravated and punitive damage awards available as well.
....
[59] With respect to liability and causation, the trial judge emphasized the focus in the existing torts of assault and intentional infliction of emotional distress on individual instances rather than on a pattern of behaviour. The essence of her reasoning on this point is set out in para. 54 of the reasons: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 [respondent] 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 patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse. These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize. For example, the tort of intentional infliction of emotional distress requires showing that a specific interaction or behaviour was “flagrant and outrageous” and resulted in injury. In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents. [Emphasis in original.] Later [at paras 71-91], the appeal court considers (and dismisses) the trial judge's concern that existing torts miss the 'patterns of conduct' aspect of family situations. The net result is that the court disagrees with the creation of a new family violence tort, reversing aspects of the trial judge's ruling.
. Pond v. Taylor
In Pond v. Taylor (Div Ct, 2020) the Divisional Court considered a Small Claims appeal (dismissed) of a successful action by a common law spouse for tort and unpaid loans. I find the case is interesting for it's toleration of common law claims and remedies outside of the family law statute system, of which there was no mention:[1] The Appellant, Rio Lancey Pond, appeals the June 30, 2017 decision of Small Claims Court Deputy Judge Twohig granting judgment to the Respondent, Melinda Taylor, in the amount of $25,000 with costs of $3,750 and disbursements of $175. The Appellant submits that Deputy Judge Twohig erred by failing to take into consideration evidence that he repaid part of the money he owed to the Respondent.
SUMMARY OF THE EVIDENCE
[2] The Respondent sued the Appellant to recover monies she claimed the Appellant owed her while they lived together from March 2011 to July 7, 2012. She claimed the following: $8,000 for general, special, and punitive damages based on the tort of assault and battery; $22,082.92 for money she loaned the Appellant’s business; a further $10,536.73 she loaned him for his personal expenses; and, $3,005 for belongings left at his residence. She waived the excess over $25,000 to bring her claim within the jurisdiction of the court: Reasons for Judgment, dated June 30, 2017. The Appellant brought a claim against the Respondent to recover $25,000 which he claimed she owed him for living expenses, for money she took from him and for money he gave her. . Radosevich v. Harvey
In Radosevich v. Harvey (Div Court, 2022) the Divisional Court considered whether a family law client's remedy to an unsatisfactory separation agreement lay with the FLA processes available (which the court held) or - styled in solicitor negligence - with an action against her former lawyer. The ruling was based on abuse of process and appears to be from a line of cases that bars civil litigation in family matters:[2] The appellant, Mary Radosevich, retained the respondent solicitor, Jane Harvey, to help her negotiate a separation agreement. Unhappy with the agreement, the appellant says that the respondent was negligent in her legal representation. The appellant commenced an action against the respondent seeking to recover the amount to which she claims entitlement by way of unsought spousal support. Vella J. stayed the action as an abuse of process, ruling that the appellant must exhaust her remedies under the Family Law Act R.S.O. 1990, c. F.3 (“FLA”), before she could pursue a civil action against her solicitor.
....
[4] .... In our view, Vella J. correctly held that this family dispute should be adjudicated under the terms of the FLA, the Act that governs spousal support obligations. It is also the statutory mechanism by which a party may seek to set aside a separation agreement, which is the remedy that the appellant should seek in this case before resorting to a civil action against her lawyer.
....
[6] However, the support obligation is that of the appellant’s husband, not that of her lawyer. If the appellant entered into an unfair separation agreement, the situation should be rectified under the authority of the FLA, which is “a complete code for the bringing, proving and adjudicating of spousal support claims”: Conroy v. Vassel, 2019 ONSC 4147, at para. 15. The civil law system must not be used to circumvent the statutory regime governing matrimonial disputes: Cunningham v. Moran, 2011 ONCA 476, at paras. 36 and 40; Sutton v. Balinsky, 2015 ONSC 3081, at paras. 174-177. The pursuit of civil damages in lieu of matrimonial proceedings is inconsistent with the proper and orderly interests of justice. It is, as found by Vella J., an abuse of process.
....
[10] In short, as held by Vella J., the appellant’s claims are justiciable under the FLA and that is where they should be tried. Contrary to the argument of the appellant, she does not have the right to choose her defendant. By commencing an action against her solicitor, the appellant chose the wrong forum and is calling the wrong party to account. We agree with the conclusion of Vella J. in para. 14:[14] For these reasons, I concluded that Ms. Radosevich must attempt to vary the separation agreement, and otherwise avail herself of whatever remedies she might have against her former husband under the relevant family law legislation first, before coming to the civil court to advance an action based on solicitor's negligence against her former lawyer. The remedies advanced by Ms. Radosevich against Ms. Harvey are, in substance, matters governed by the FLA; namely, whether retroactive spousal support ought to be paid by her husband, and whether the lump sum spousal support agreed to be paid was fair in light of her husband's true financial picture.
|
