Alberta Court of King's Bench declares no tort of family violence in Alberta

The Alberta Court of King’s Bench has rejected the application of the tort of family violence in Alberta after the Ontario Court of Appeal refused to recognize it.

In Colenutt v Colenutt, 2023 ABKB 562, Christopher Colenutt commenced an action for divorce and division of matrimonial property against Shelley Colenutt. In 2018, Shelley initiated an action for assault and battery concerning an assault incident that allegedly occurred in July 2016. Christopher countered that it was Shelley who had assaulted him.

Shelley filed an application seeking to amend pleadings to add claims from allegations of family violence. When she commenced her action, the Ontario Superior Court of Justice had just recognized the new tort of family violence in the case of Ahluwalia v Ahluwalia, 2022 ONSC 1303.

While Shelley’s application was pending, the Ontario Court of Appeal released its decision in Ahluwalia v Ahluwalia, 2023 ONCA 476, finding that the court did not need to create a novel tort specific to family violence or the proposed tort of coercive control. The Ontario Court of Appeal said the Divorce Act does not include a remedy for a person subjected to family violence. Furthermore, the court also noted that the use of the Divorce Act definition of family violence should be considered only in connection with parenting orders when the court assesses the best interests of children and when the court considers the impact of family violence on children.

The Alberta Court of King’s Bench agreed with the Ontario Court of Appeal, finding that it is appropriate to apply the appeal court’s decision in Ahluwalia for family law litigants in Alberta who wish to advance a claim for damages arising from family violence, including coercive control. The Alberta court further said that litigants may proceed based on the current tort laws related to assault, battery, and intentional infliction of emotional distress. This type of action cannot be commenced under the Divorce Act, the Family Law Act, or the Family Property Act. It is a separate cause of action requiring a separate action to be commenced.

The Alberta Court of King’s Bench noted that the amendments sought by Shelley consisted primarily of the addition of 34 paragraphs, setting out alleged incidents upon which she relied to support her claim that Christopher engaged in behaviour that included grooming, coercion, manipulation, humiliation, degradation, sexual assault, harm to animals, and assault and battery. She also wished to add to the list of injuries “complex post-traumatic stress disorder.”

The court ultimately ruled that there is no separate tort of family violence. Nonetheless, the court said that even if the tort of family violence does not exist in Alberta, the other proposed amendments alleged a pattern of behaviour that may be sufficient to support a claim for the tort of intentional infliction of emotional distress.

The court concluded that it would not disallow the proposed amendments because they were prejudicial, hopeless, lacked the required evidentiary foundation or were done in bad faith.

However, the court found that the proposed amendments, except those related to sexual assault, sought to add a new cause of action—intentional infliction of emotional distress—after the expiry of a limitation period. The court also found that the proposed amendments, aside from those alleging two incidents of sexual assault, were statute-barred.

The court explained that the limitation period begins to run when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by exercising reasonable diligence.

Shelley argued that she did not know that her injuries warranted a proceeding until the Ontario Superior Court recognized the tort of family violence. The court rejected her argument, explaining that Ahluwalia clarified that “Courts have long recognized that patterns of physical and emotional abuse constitute tortious behaviour” and that “courts have considered the patterns of behaviour that constitute intimate partner violence without limiting their focus to individual incidents.”

Accordingly, the law had long supported a claim for damages arising from tortious behaviour due to patterns of physical and emotional abuse between intimate partners.

The court pointed out that Shelley had not advanced any personal circumstances which were severe, significant, and compelling such that it was not feasible for her to initiate an action earlier. She did not need to rely on a tort of family violence or a tort of coercive control to include her claims related to a pattern of conduct in her pleadings. The court said these allegations could have been pled during the limitation period to particularize a claim for such tortious conduct.

Furthermore, the court explained that even if one assumes that the limitation period commenced when the parties separated in June of 2016, the application to amend the Statement of Claim was not filed until November 3, 2022, well beyond the two-year limitation period. Consequently, her proposed amendments are prima facie statute barred.

Nonetheless, the court recognized that there is no limitation period regarding a claim relating to a sexual assault or battery. Accordingly, the court granted Shelley Colenutt’s application to amend the statement of claim only concerning paragraphs containing allegations of sexual assault and to para. 39(b), which could relate to the original pleadings or the allegations of sexual assault. The court disallowed the remainder of the proposed amendments because they sought to add a new cause of action after the expiry of a limitation period.