Factors for Consideration in the Supreme Court of Appeal: Tort of Family Violence

In 2022, Justice Mandhane introduced the tort of family violence to address the injuries committed during the course of a marriage. A year later, in 2023, the Ontario Court of Appeal overturned this new tort in the decision Ahluwalia v Ahluwalia, 2023 ONCA 476. This matter is now being appealed to the Supreme Court of Canada.

In the article “’Weaponizing’ The Tort of Family Violence? Myths, Stereotypes, Lawyers’ Ethics and Access to Justice”, Deanne Sowter and Jennifer Koshan, argue that recognizing the tort of family violence is an important step towards compensating the harms of intimate partner violence and urge governments to also address the issue systemically.

Interestingly, in their discussion of the tort of family violence, the authors address the origin of tort law. Tort law arose as a method of resolving disputes between men that did not involve violence or blood feuds. More recently, tort law has evolved to meet two primary objectives, compensation and deterrence.

The origin of tort law as a remedy for men has created barriers for women to seek redress in the civil context. “The reasonable man standard” often meant that emotional responses to events primarily experienced by women were considered abnormal and not worthy of compensation, such as: miscarriage, intimate partner violence, premature birth, and “hysterical disorders”.

Sowter and Koshan write that introducing the tort of family violence is necessary. Established torts have shortcomings in addressing the harms committed against marginalized individuals.

They also argue that introducing this tort should be done in a manner that discourages lawyers from relying on myths or tropes. Such as portraying the survivor as psychologically unstable or arguing that the survivor is not a victim because they haven’t followed certain rules like calling the police promptly, leaving the relationship immediately, making a claim within the prescribed time, and having no other competing interests like financial gain. Research repeatedly shows that “safety, financial, occupational, psychological, child-care, immigration, and other factors often trap women in abusive relationships. And fear of police and other authorities is profound in the case of marginalized survivors”.

Sowter and Koshan note that the government must also address domestic violence and that tort law is not capable of being a complete remedy. “The cost of legal representation in conjunction with traditionally low damage awards and the uncertainty of insurance coverage may make tort claims not worth the effort for most survivors, whether brought in family proceedings or otherwise… While tort actions provide some degree of control to survivors, they also individualize what is a systemic problem and ignore the structural factors that contribute to IPV, such as poverty and un/under-employment, which are in turn related to systemic racism, colonialism, ableism, homophobia and transphobia”.

In sum, this paper is a great article in considering the tort of family violence in a broader context and the historical background of tort law.