ARTICLE
23 January 2025

Supreme Court Of Canada To Rule On The Novel Family Law Tort Of Family Violence

SB
Sorbara Law

Contributor

In November of 2023, I wrote an article about the landmark decision by Justice Renu Mandhane in Ahluwalia v. Ahluwalia, 2022 ONSC 1303 that created the tort of family violence and in it, I explained that the Ontario Court.
Canada Family and Matrimonial

In November of 2023, I wrote an article about the landmark decision by Justice Renu Mandhane in Ahluwalia v. Ahluwalia, 2022 ONSC 1303 that created the tort of family violence and in it, I explained that the Ontario Court of Appeal reversed the creation of this tort on the basis that the pre-existing torts of assault, battery and intentional infliction of emotional distress, are sufficient to account for the damages sustained by victims of intimate partner violence. Despite the affirmation by the Court of Appeal, several cases with claimants seeking monetary relief for damages sustained from forms of intimate partner violence have been denied such relief under the pre-existing torts and the tort of family violence, because of its elimination.

The Supreme Court of Canada ("SCC") will be grappling with the question of, "should the judiciary create a new tort in common law of "family violence?" over the course of two days, February 11th and February 12, 2025.

The appeal has attracted 17 interveners, including women's shelters and survivors' groups which support the tort's creation.

In her appeal to the SCC, the appellant ex-wife challenges the Ontario Court of Appeal's elimination of a $50,000 punitive damages award from the total $150,000 in damages she won under the rubric of the tort of family violence. The appellant sought a divorce, child and spousal support, and damages, following the breakup of a 16-year marriage that the trial judge found was marked by a pattern physical and emotional abuse and financial control.

Ontario Superior Court Justice Renu Mandhane held that the Divorce Act isn't a complete statutory scheme for addressing all the legal issues that can arise in a marriage marred by violence. 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," she explained. Justice Mandhane ruled that it was necessary for the common law to recognize a new tort of family violence to enable redress for the cumulative pattern of harm that can arise from domestic physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or the killing or harming of an animal or property.

The test for the creation of a new tort requires that, at minimum, the tort must reflect a wrong; it must be necessary to address that wrong; and it must be an appropriate subject of judicial consideration.

The trial judge's concern that 'long-term, harmful patterns of conduct that are designed to control or terrorize' are not captured by existing torts is misplaced, Justice Benotto explained, noting that the trial judge found that the husband had subjected the wife to years of physical, psychological, emotional and financial abuse, constituting behaviour calculated by the husband to be coercive and controlling.

A final determination on this important issue which has, in the meantime, left litigants uncertain about the merits of their intimate partner violence claims, will provide the clarity needed by the legal profession and victims of intimate partner violence to seek the appropriate route for legal redress for harms sustained.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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