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Torts - Family Violence. 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 the 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.
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[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.
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