We all know that family violence is a social issue that can be have criminal repercussions. However, it is less commonly known that a survivor of domestic assault can seek civil remedies against a violent partner. The civil remedies can include compensation for pain and suffering, income loss, loss of competitive advantage, loss of earning capacity, future costs of care, compensatory damages, aggravated damages and punitive damages.

Court actions for domestic assault and battery have been present in Canadian courts for many years.  However, as pointed out by the Honourable Mr. Justice Pazaratz in the 2013 decision of Costantini v. Costantini, “only a tiny fraction of potential [family violence] tort claims are ever advanced:

1. Many litigants may be unaware the tort option exists.
2. Family law lawyers tend to be more attuned to dealing with claims based on statute rather than tort.
3. Some lawyers and clients may be reluctant to pursue such a claim fearing it will aggravate an already difficult situation.
4. Family finances are often so limited, there’s little point in adding yet another potential monetary claim to the mix.
5. There may even be systemic discouragements. Over the years, our family court system has worked hard to get away from blame and recrimination – by discouraging “inflammatory” affidavits in favour of case management; by telling conflicted parents to focus more on the future than the past; by promoting conciliation and collaborative dispute resolution; by granting “no fault” divorces. We may have promoted a misconception: that fault never matters.”

This leaves many survivors of family violence without any compensation for their losses and damages resulting from a tortious act of violence.

In February 2022, the Superior Court of Justice of Ontario wrote about the new tort of family violence in Ahluwalia v. Ahluwalia by explaining that “while trial judges must be cautious about developing new foundations for liability, there is scope to do so where the interests are worthy of protection and the development is necessary to stay abreast of social change.”

Although creating a new tort for family violence does not eliminate the reasons why many survivors of family violence do not sue the violent partner, it recognizes the significant harm that flows from family violence and the need for remedies.

Elements to Establish the Tort of Family Violence

To establish the tort of family violence, you must look at the definition of “family violence” in the Divorce Act. As articulated by the Honourable Justice Mandhane in Ahluwalia, “based on this statutory definition, to establish liability on a civil standard [in the tort of family violence], the plaintiff must establish:

Conduct by a family member towards the plaintiff, within the context of a family relationship, that:

1.      is violent or threatening, or
2.      constitutes a pattern of coercive and controlling behaviour, or
3.      causes the plaintiff to fear for their own safety or that of another person.”

The violent conduct includes physical, psychological, financial and sexual abuse, threats to kill or cause bodily harm to any person or animal, threats to damage property, harassment, stalking, and the failure to provide the necessities of life.

The definition of “family violence” was added in the context of the 2021 reforms to the Divorce Act.

In Ahluwalia, emphasis was placed on the fact that the plaintiff must prove a pattern of conduct. It must be more than one incident of violence.  It will be insufficient to show that the relationship was simply unhappy or dysfunctional. Specific examples must be presented to the court to show a pattern of violent conduct.

Damages

Once liability for family violence is established, the survivor must prove their damages. The following damages have been awarded to survivors of family violence (or assault by a violent partner):

1. Damages for pain, suffering and loss of enjoyment of life
2. Damages for income loss, loss of competitive advantage and loss of economic opportunity
3. Treatment costs
4. Compensatory damages
5. Aggravated damages
6. Punitive damages.

Relevant factors in assessing damages in family violence claims include:

1. Circumstances of the family violence
2. Extent of the violence
3. Duration of the violent conduct
4. Specific harm suffered by the victim
5. Outcome of any criminal proceedings.

Key Legal Concepts

As most people know,  statute remedies in divorce proceedings can include spousal support.  As the name implies, spousal support is an order of payment to support the other spouse based on the length of the relationship, the functions performed by each spouse and any agreement or arrangement made about such support. Wrongdoing and misconduct of a spouse during the relationship is specifically excluded from the factors that a court should consider when ordering spousal support.  Therefore, a survivor of family violence cannot be adequately compensated with an award of spousal support.

There is no limitation period for assault claims if the parties had an intimate relationship or if the person who has a claim was financially, emotionally, physically, or otherwise dependent on the other.  Although family violence claims do not have a limitation date, the principle of res judicata may apply if the family proceeding has already resolved.

Ahluwalia Decision

In the Ahluwalia decision, the self-represented applicant mother sought damages for family violence, in addition to child support, spousal support and a net family property equalization payment.

The parties married in 1999 following a short courtship.  Their 1^st child was born 18 months later. The father immigrated to Canada in 2001 and the mother and child in 2002. Their 2^nd child was born in 2004. The parties’ duties were defined along traditional gender lines: the mother was responsible for caregiving and the father was responsible for earning money outside the home. They separated in 2016.  The court found that the marriage was characterized by the father’s abuse, and a 16-year pattern of coercion and control. It was a violent relationship. At the time of trial, the father was facing criminal charges.

The court recognized the new tort of family violence and allowed the tort claim for family violence to be considered as part of the family law proceedings by stating that “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 reliefs after the end of a violent relationship.”

The court found the father liable for damages as a result of family violence.  The father was ordered to pay compensatory, aggravated and punitive damages, in addition to spousal and child support and a net family property equalization payment:

• $50,000 for compensatory damages because of the mother’s ongoing depression and anxiety and her lost earning potential because of the family violence.
• $50,000 for aggravated damages to recognize the “overall pattern of coercion and control and the clear breach of trust. The father preyed on the mother’s vulnerability as a racialized, newcomer woman.”
• $50,000 in punitive damages because the father’s conduct required a strong condemnation.

The Honourable Justice Mandhane highlighted that Her Honour had “shown restraint in my punitive damages award because the father is still facing outstanding criminal charges, is subject to ongoing bail conditions, and may face additional punitive sanctions.”

The Superior Court of Justice decision in Ahluwalia is currently under appeal. The appeal was argued on March 23, 2023 and the Court of Appeal reserved its decision.

Conclusion

Family violence is a social issue but it is rooted in the actions of individuals.  Individuals responsible for having breached a recognized legal duty because of their coercive, controlling, violent and threatening behaviour should be ordered to compensate the victim. This is the ultimate goal of tort law.

As expressed by counsel for Luke’s Place, an organization devoted to improving the safety and experience of women involved in the family law process, “the tort [of family violence] recognizes the extensive and pervasive harms that flow from family violence and provides a much-needed mechanism for survivors to be financial compensation for this harm.” Luke’s Place was an intervener in the Ahluwalia appeal.

At Burn Tucker Lachaîne P.C., we will be very interested in reading the Court of Appeal’s decision in Ahluwalia.