What is the Tort of Family Violence? A New Remedy for Victims of Domestic Violence
By David Kim, Calgary Family Lawyer
In an unexpected and precedent setting case out of Ontario, a self-represented victim of domestic violence was awarded $150,000 for the violence she suffered during her marriage. This was done through a new legal action created by the judge hearing the case, called a tort of family violence. This new tort of family violence is a huge change in family law that will have a big impact for victims of family violence.
In Canada, victims of domestic/family violence have 3 ways to seek justice:
- Apply to court for a family law protection order which would restrict the offending party from causing more immediate harm;
- File a police report against the offending party so that the Crown prosecutor might proceed with criminal charges against the offending party; and
- Sue the offending in civil court using the torts of assault and/or battery.
However, the Ontario Superior Court has recently created an entirely new type of remedy: the tort of family violence.
What is a tort?
Simply, a tort is a wrongful act committed by someone that often results in monetary compensation for the victim. There are different kinds of torts. For example, if a person has committed violence against you, you may sue them for compensation in civil court under the torts of assault and battery.
What if the violent person is a family member?
If a family member such as a husband or wife commits violence against you, and if you choose to sue them under the torts of assault and battery, it is no different than suing a perfect stranger. There is no special consideration given to the underlying family dynamic that may have given rise to the violence. The key elements to prove under assault and battery are that the violence incident took place and that it caused you harm – the dynamic of the relationship does not particularly matter. These torts have been rarely used in family law cases as they do not fit well within the facts of family law matters.
The Tort of Family Violence
In Ahluwalia v. Ahluwailia 2022 ONSC 1303, a Wife who suffered consistent physical, verbal, emotional, psychological, and financial abuse at the hands of the Husband applied to court under new type of claim for "general, exemplary and punitive damages for the physical and mental abuse suffered by the [Wife] at the hands of the [Husband].” The parties separated in 2016 after 17 years of marriage and there was evidence that the Husband was abusive for much of the marriage.
At trial, Justice Mandhane found that there is a need for the tort of family violence for cases where there was “a long-term pattern of violence, coercion and control” and the victim must prove that the offending party:
- Intended to engage in violent or threatening behaviour;
- Engaged in behaviour that was calculated with a pattern of coercive and controlling behaviour; or
- Caused the victim to fear for their safety or the safety of another person knowing with substantial certainty that their behaviour would cause the victim to be subjectively fearful.
Once any of these three elements are proven, the offending party is deemed to be liable in committing the tortious act of family violence. Also, the definition of family violence for the new tort of family violence comes from the Divorce Act and this is important as the Divorce Act includes “a pattern of coercive and controlling behaviour” and conduct that “causes the plaintiff to fear for their own safety or that of another person” as family violence. This means that physical violence is not a requirement for the new tort of family violence, it can be claimed if there is emotional abuse as well. This was pointed out by the judge who stated:
[54] While the tort of family violence will overlap with existing torts, there are unique elements that justify recognition of a unique cause of action. I agree with the Mother that the 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. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse.
These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize. For example, the tort of intentional infliction of emotional distress requires showing that a specific interaction or behaviour was “flagrant and outrageous” and resulted in injury. In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.
After liability is established, the next step in making out the tort of family violence is to determine the amount of damages owed by assessing the circumstances, extent, duration, and specific harm caused by the violence. In this case, the Judge awarded the Wife $150,000 for the tort of family violence given the long duration of abuse that could not adequately be compensated through spousal support, especially since the Divorce Act of Canada specifically prohibits the Judge from considering any history of spousal misconduct when determining the appropriate amount of spousal support.
Why does this matter?
The tort of family violence is an important step toward protecting victims who have suffered long-standing violence at the hands of family members. Unlike the torts of assault and battery which looks at one specific incident and form of violence, the tort of family violence focuses on a long-term pattern of violence which can include physiological and emotional violence. The tort of family violence is designed to compensate the repetitive physical abuse, threats, sexual abuse, harassment, stalking, coercion and control, psychological abuse, financial abuse and fear that victims of family violence suffer.
While there has not yet been a decision on the tort of family violence outside of Ontario, it is likely that this new tort will find a place across Canadian family law due to the reality family violence is different than other forms of violence and needs a different perspective.
Our highly experienced team of family lawyers at Crossroads Law would be happy to advise you further on this newly emerging area of law. Contact us now to speak to a family lawyer in Alberta or British Columbia. Your first consultation is always free.
