In the groundbreaking decision Ahluwalia v. Aluwalia, 2022 ONSC 1303, Justice Mandhane of the Ontario Superior Court of Justice, established the common law tort of family violence in Ontario.
After hearing submissions by both sides (including a self-represented wife) after an 11-day trial, Justice Mandhane recognized the common law tort of family violence (at para. 48). For a plaintiff to be successful in establishing liability, they must prove that conduct of a family member within the context of a family relationship is: (1) violent or threatening, or (2) constitutes a pattern of coercive and controlling behaviour, or (3) causes the plaintiff to fear for their own safety or that of another person (at para. 52).
The court highlighted that the focus must be on the family member’s specific conduct and there must be a pattern of conduct, not just an isolated incident (at paras. 55-56).
Once liability is proven, the nature of the family violence (circumstances, extent, duration, and specific harm) will all be factors relevant to assessing damages. Aggravated damages may be awarded for the betrayal of trust, breach of fiduciary duty and relevant post-incident conduct. Punitive damage awards will generally be appropriate given the social harm associated with family violence (at para. 57).
Justice Mandhane awarded the wife (among other awards) $150,000.00 in compensatory, aggravated and punitive damages for the history of abuse at the hands of the husband. $50,000.00 in compensatory damages in relation to the wife’s ongoing mental health disabilities and lost earning potential (at paras. 114-118). $50,000.00 in aggravated damages due to the overall pattern of coercion and control and the clear breach of trust by the husband (at para. 119). $50,000.00 in punitive damages as Justice Mandhane noted that the husband’s conduct called for “strong condemnation” (at para. 120).
Three additional themes were discussed by Justice Mandhane:
- Allowing a family law litigant to pursue damages for family violence is a matter of access to justice. It would be unrealistic to ask a victim to file both family and civil claims to receive different forms of financial relief (at para. 47).
- Family violence is not a factor a judge can consider when discussing spousal support awards and the legislation does not provide a victim with a direct avenue to obtain reparations for harms that flow directly from family violence that go well beyond the economic fallout of the marriage (at paras. 45-46).
- A plaintiff should provide detailed evidence regarding the quantum of damages they are seeking to assist a judge with determining what is reasonable (at para. 112).
This decision has far-reaching implications for family law litigants. On one hand, it is incredibly important that the law continues to evolve and recognize the impact of family violence on families. On the other hand, plaintiffs might unknowingly commence litigation in both family and civil courts, causing an already overworked system to be further backlogged. In addition to this, due to the subjectivity of these damages, settlement negotiations might stall resulting in court intervention delaying resolution and increasing legal fees.
We will have to wait and see if the decision will be appealed but at least temporarily, the tort of family violence has been established in Ontario. Toronto divorce lawyers and self-represented litigants should be aware of this and consider whether this claim for damages should be included in their court applications or settlement negotiations going forward.
This information is not legal advice. If you need legal advice, please contact our offices at (416) 862-0980 (Toronto Offices) or (519) 840-0863 (Waterloo Region Offices) or one of the many excellent family lawyers in Ontario.