Court also clarified appropriateness of bringing tort claim in family law dispute
With other adequate remedies available, it is unnecessary to create a new tort for family violence, the Court of Appeal for Ontario has found.
In Ahluwalia v. Ahluwalia, 2023 ONCA 476, the court dealt with an appeal of a Superior Court judgment which deemed alternative methods of liability insufficient in addressing the “day-to-day” reality of family violence.
However, the appeal court declined to affirm the new tort’s recognition, finding that “long-term, harmful patterns of conduct that are designed to control or terrorize” fit comfortably within existing jurisprudence on battery, assault, and intentional infliction of emotional distress. The existing torts have enough flexibility to “address the fact that abuse has many forms,” said Justice Mary Lou Bennotto, who wrote the reasons for the court.
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The court was concerned that the two torts proposed by the respondent party – the family violence tort and a narrower tort of coercive control – would “bring fault back into the family law system,” says Geoffrey Carpenter, an Oakville, Ont. family law specialist and counsel for the appellant.
“The decision noted that this runs contrary to trends in family law and would represent a significant change to our legal system, which must be made by the legislature and not the courts,” he says.
“This is not a situation where victims of family violence are being denied any remedy by the courts. The Court of Appeal made clear that they still have a number of existing torts available to seek relief and that those torts were sufficient to address the issues in this case.”
In the decision’s first paragraph, Bennetto writes that intimate partner violence is a “pervasive social problem” that includes “physical violence, psychological abuse, financial abuse and intimidation,” and nearly half of all women and a third of men in Canada have experienced it. She said it is “axiomatic” that family violence must be “recognized, denounced and deterred.” The issue in the case was not whether intimate partner violence exists and should be confronted but whether in family law proceedings, “where numerous and varied remedies already exist,” the court should create a specific family-violence tort, she said.
Bennotto’s “really strong” statements recognizing the problem of intimate partner violence are significant and will be relied upon in the future by survivors, says Anna Matas, who represented the Barbra Schlifer Commemorative Clinic, which intervened in the case.
The Barbra Schlifer Clinic’s position was that the court should affirm the tort as articulated by the trial judge. Its argument focused on the complexity of family violence.
“It is something that arises out of a pattern of long-term and repetitive abuse that's really intended to control and dominate another person,” says Matas, a civil litigator at Gillian Hnatiw & Co. The clinic argued that existing torts do not capture the phenomenon’s “repetitive nature” or its “fundamental breach of trust and domination,” she says.
The case also clarifies that bringing a tort claim in a family proceeding is appropriate, says Matas.
The appellant argued against expanding tort claims in family law proceedings, relying on the 1987 Supreme Court of Canada case, Frame v. Smith. In that case, the court rejected various torts the father brought against the mother for denying him court-ordered parenting time. In his obiter comments, Justice Gérard La Forest said it was undesirable to provoke suits “within the family circle” for the sake of the children’s welfare, among other reasons.
But courts have recognized the addition of a tort claim to a family law case in Leitch v. Novac, 2020 ONCA 257, and “those who are victimized do not lose their remedies when they marry or begin a domestic partnership,” said Bennotto. She added that La Forest spoke of not provoking lawsuits where there was a “direct statutory remedy,” and in the 36 years since Frame, “society, the legislature, and the courts have come to recognize the reality of intimate partner violence and the need to condemn it.”