No New Tort of Family Violence: Ontario Court of Appeal Rules

In Ahluwalia v. Ahluwalia, 2023 ONCA 476, the Ontario Court of Appeal overturned part of the groundbreaking decision of Justice Mandhane in establishing the tort of family violence. Justice Benotto writing for the Ontario Court of Appeal explained that existing torts adequately address the issue of damages for family harm and that Parliament has not shown an intention to create a new cause of action.

When amending the Divorce Act, Parliament could have revised the legislation to create a new tort, but they did not. Instead Parliament made provisions for fines and contempt orders to address harm suffered in the family context.

In addition, courts already allow litigants to claim for damages in the context of a family law proceeding. “In Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, this court allowed a tort claim for conspiracy to proceed in a family law case. The claim was against family members who allegedly helped a party hide finances.” See para 42.

When bringing a claim for damages in a family law matter, litigants can plead torts that already exist. Family violence does not justify the creation of a new tort. Current torts that may be used include: the tort of assault, the tort of battery, and the tort of intentional infliction of emotional distress. The tort of intentional infliction of emotional distress has three elements, which must be proven:

• (i) the defendant’s conduct was flagrant and outrageous;
• (ii) the conduct was calculated to harm; and
• (iii) the conduct caused the plaintiff to suffer a visible and provable illness. See Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.).

The Ontario Court of Appeal recognizes that isolated incidents may not be enough to prove the torts. However, “isolated incidents that are not individually tortious may, when viewed in their repetitive and cumulative nature, become tortious.” See para 88.

In Ahluwalia v. Ahluwalia, the Ontario Court of Appeal further rejected the argument that the “tort of coercive control” should be established. At para 106:

I would not recognize the tort of coercive control at this time because: (i) the existing tort of intentional infliction of emotional distress provides an adequate remedy; (ii) the elimination of the requirement to establish visible and provable injuries does not arise in the case before us; and (iii) the elimination of the requirement to prove harm would cause a significant impact on family law litigation best left to the legislature.

Lastly, the Ontario Court of Appeal provided guidance to trial judges in assessing claims for damages in the context of family law proceedings. “The court should complete the statutory claims before assessing liability and damages for tort claims.” See para 141.

The Ontario Court of Appeal upheld the trial judge’s decision to award damages. However, the award was reduced by $50,000 as punitive damages was not properly justified in the reasons of the trial judge (para 133).

The Ontario Court of Appeal’s decision is well reasoned and provides much guidance to trial judges and counsel in addressing the issue of damages in the context of a family law proceeding.