New Tort of Family Violence: How Will This Affect Survivors of Abuse?

In the recent case of Ahluwalia v. Ahluwalia, 2022 ONSC 1303, the Ontario Superior Court of Justice established the tort of family violence and created a new form of relief for victims.  The creation of this new tort may enable victims of family violence, which is also known as Intimate Partner Violence, to seek compensation from their abusers. Prior to Ahluwalia, no such claim or remedy was available.

What is a Tort?

A tort is an act by a party that causes harm to a person or their property. The remedy for such harm comes in the form of damages and may include a monetary payment.

What is Family Violence?

Family violence is defined broadly in Canada’s Divorce Act and is not confined to physical abuse: it includes verbal, financial and emotional abuse, coercive control, and other forms of abuse. Pursuant to section 2 of the Divorce Act (Canada), family violence is defined as:

Family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes:

• physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
• sexual abuse;
• threats to kill or cause bodily harm to any person;
• harassment, including stalking;
• the failure to provide the necessaries of life;
• psychological abuse;
• financial abuse;
• threats to kill or harm an animal or damage property; and
• the killing or harming of an animal or the damaging of property.

“Family Member” is defined in the Divorce Act as “a member of the household of a child of the marriage or of a spouse or former spouse as well as a dating partner of a spouse or former spouse who participates in the activities of the household.” As such, potential claimants include children of the marriage, spouses, and new partners following a separation. Other family members may also fall within the definition.

Prior to the creation of the tort of Family Violence, a victim’s remedies for experiencing family violence were more centred around alleviating immediate risk through Emergency Protection Orders and Civil Restraining Orders, learn more about EPO’s here.  This new tort greatly expands the range of remedies available to survivors to include monetary damages, including compensation for past and future loss of earnings arising as a result of the violence.

The Test to Establish the Tort of Family Violence

Pursuant to Ahluwalia, to show that family violence has occurred, the Plaintiff must establish that a family member has exhibited conduct by towards them, in the context of a family relationship, that:

1. is 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.

This test is disjunctive, meaning the test is met if a claimant can establish any one of the listed elements.

Under the first branch of the test, the Plaintiff must establish that the family member intended to engage in conduct that was violent or threatening (i.e., consistent with the well-recognized intentional torts of assault and battery). Under the second branch, the Plaintiff must show that the Defendant engaged in behaviour intended to be coercive and controlling to the Plaintiff. The third arm of the test is met where the Plaintiff establishes conduct that the Defendant knew with substantial certainty would cause the subjective fear to the Plaintiff.

The Plaintiff must establish the elements of the test on the civil standard burden of proof of a balance of probabilities (is it more likely than not that family violence occurred?). A Plaintiff need not meet the criminal standard of proof of beyond a reasonable doubt. 

What Happens if the Tort is Established?

The court may award the Plaintiff damages in compensation for the suffered harm. The quantum of damages in Ahluwalia was $150,000 to be paid primarily from the proceeds of the sale of the parties’ matrimonial home.

Given that “family member” need not be an intimate partner and includes both children and new partners, it appears that this tort can be pursued as a standalone claim.  It need not be pursued in the context of a divorce or separation claim, as was the case in Ahluwalia.  However, in many cases involving intimate partners it will be prudent to include the claim as part of the larger action following separation as opposed to seeking relief in a separate action.

The quantification of damages from family violence will also be a challenging issue for the Court’s consideration.  We anticipate that the Court will consider and apply common damages principles from the realm of personal injury law which includes considerations such as emotional distress, pain and suffering, loss of quality of life, and other established heads of damages when quantifying the harm caused by family violence. 

The quantification of damages from family violence will also be a challenging issue for the Court’s consideration.  We anticipate that the Court will consider and apply common damages principles from the realm of personal injury law which includes considerations such as emotional distress, pain and suffering, loss of quality of life, and other established heads of damages when quantifying the harm caused by family violence. 

Conclusion

The creation of the tort of family violence will empower survivors with a means to obtain financial compensation from their abusers that was previously unavailable through traditional tort actions. While at present this tort has not been recognized outside of Ontario, its principles are firmly entrenched in the recently revised Divorce Act (which places, among other things, a real focus on family violence and it’s alleviation), and we expect other jurisdictions, including Alberta, will ultimately recognize this tort. As the Court stated in Ahluwalia:

Allowing a family law litigant to pursue damages for family violence is a matter of access to justice. It is unrealistic to expect a survivor to file both family and civil claims to receive different forms of financial relief after the end of a violent relationship.

We at SVR Family Lawyers are here to help you navigate this new tort
please contact us if you need assistance.