It is not uncommon for family law disputes to deal with a range of issues at the same time, for example, child support, spousal support and property division. Sometimes, there are allegations of mistreatment during the relationship, which may be relevant when determining some issues, including custody.

In a ground-breaking recent decision of the Ontario Superior Court of Justice, in a case to determine property equalization, child support, spousal support and the mother’s claim for damages concerning the father’s alleged abuse during the marriage, Justice Mandhane recognized a new foundation for liability for family violence. We take a look at Ahluwalia v Ahluwalia.

An abusive marriage

The parties met in India and were married in 1999. After having one child, they immigrated to Canada, where they had their second child. They separated in 2016 after the father left the marital home. The children have been estranged from their father since 2017.

In 2021, the father was charged with two counts of assault against the mother and one count of uttering threats to cause death—both charges related to events during the marriage.

The father commenced an application seeking joint parental decision-making, weekend parenting time, sale of the matrimonial home and property equalization. The mother sought sole decision-making authority and primary residency, child support, spousal support and property equalization. The mother later added a new claim for physical and mental abuse damages. She recounted three specific instances of physical violence during the marriage and an overall emotional abuse and financial control pattern.

Is the mother’s damages claim properly considered as part of the family law proceedings?

The father argued that it would be improper to consider the mother’s claim as part of the family law proceedings because the Divorce Act 1985 creates a complete statutory scheme when it comes to resolving financial issues post-separation.

Justice Mandhane explained that, given recent reforms to the Divorce Act, “family violence” is relevant to the issue of parenting. It is defined as:

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.

However, the legislation does not create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence. For example, spousal support awards are compensatory and not fault-driven – misconduct cannot be considered when making such an order.

Her Honour said that the Act does not provide the survivor with a direct avenue to obtain reparations for harms that flow directly from family violence and that go beyond the economic fallout of the marriage. As such, the no-fault nature of family law must give way where there are serious allegations of family violence that create independent and actionable harm. Her Honour said:

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.

Is there a tort of family violence?

Justice Mandhane was prepared to recognize a common law tort of family violence, deciding that this was one of the rare circumstances where the common law should recognize a new foundation for liability for family violence.

Based on the definition in the Act, the plaintiff must establish conduct by a family member towards the plaintiff, within the context of a family relationship, that:

  • is violent or threatening; or
  • constitutes a pattern of coercive and controlling behaviour; or
  • causes the plaintiff to fear for their own safety or that of another person.

Her Honour agreed with the mother that existing torts do not fully capture the cumulative harm associated with the pattern of coercion or control that lays at the heart of family violence cases and creates the conditions of fear and helplessness. In the context of damage assessment for family violence, the pattern of violence must be compensated, not the individual incidents.

Her Honour explained that the plaintiff needs to prove on the balance of probabilities that a family member engaged in a pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or killing or harming an animal or property. Further:

It will be insufficient to point to an unhappy or dysfunctional relationship as a basis for liability in tort. The focus must be on the family member’s specific conduct, which must be particularized using specific examples. 

Judge awards compensatory, aggravated and punitive damages for the tort of family violence

Justice Mandhane sided with the mother’s version of the events, noting:

A practical and informed person, aware of the social context of family violence and alive to the Mother’s particular vulnerability after immigrating to Canada, would find her version of events to be both internally consistent and probable.

Her Honour refused to draw a negative inference simply because the mother stayed in the relationship, finding that the mother faced significant social and economic barriers to leaving. Her Honour found an overall pattern of abuse, coercion and control.

Justice Mandhane awarded damages of $150,000 for the family violence the mother experienced during the marriage. This consisted of $50,000 in compensatory damages for ongoing mental health disabilities and lost earning potential, $50,000 in aggravated damages due to the overall pattern of coercion and control and the clear breach of trust, and $50,000 in punitive damages to strongly condemn the father’s conduct.

Contact Toronto Family Lawyers For Guidance Throughout Your Separation

Separations can be an extremely challenging time. Your best plan through this transition is to have an experienced family lawyer on your side to provide guidance and assistance and protect your legal rights. Contact NULaw online or at 416-481-5604 to book a consultation.

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