Re-Examining Coercive Control: Ahluwalia and the Tort of Family Violence
Legislative Changes
Through legislation passed in 2020,[1] the Divorce Act was amended in 2021 to include the definition of the term family violence at section 2(1), which now reads:
“family violence means 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 — and in the case of a child, the direct or indirect exposure to such conduct — and includes
- (a)physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
- (b)sexual abuse;
- (c)threats to kill or cause bodily harm to any person;
- (d)harassment, including stalking;
- (e)the failure to provide the necessaries of life;
- (f)psychological abuse;
- (g)financial abuse;
- (h)threats to kill or harm an animal or damage property; and
- (i)the killing or harming of an animal or the damaging of property; (violence familiale)”[2]
This term was not only defined by the legislation but was included as a factor to be considered when determining the best interests of the child under Section 16(3) and 16(4) of the Divorce Act.[3] This constituted an important recognition, by the legislature, of the significant impact that various forms of inter-partner violence can have in family dynamics and when determining post-separation parenting issues.
Ahluwalia in the Superior Court
In 2022, Justice Mandhane of the Superior Court utilized this new definition in the legislative amendment to create the common law tort of family violence in Ahluwalia v. Ahluwalia 2022 ONSC 1303. The Wife was awarded $150,000 in compensatory, aggregated, and punitive damages for the tort of family violence, due to the Husband’s egregious abusive behaviour against the Wife throughout their relationship.[4]
At paragraph 52, Justice Mandhane set out the parameters for the new tort of family violence:
“To define the modes of liability underlying the new tort of family violence, the proper starting point is the definition of “family violence” found in s. 2 of the Divorce Act. Based on this statutory definition, to establish liability on a civil standard, 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.”[5]
Justice Mandhane ruled that the common law should recognize a new foundation for liability for family violence due to existing caselaw for spousal battery and explicit recognition of the harms associated with “family violence” in the Divorce Act, among other factors.[6]
Overruled in the Court of Appeal
On July 7, 2023, the Court of Appeal found that the trial judge erred in creating a new tort, overturning the Superior Court decision in Ahluwalia v. Ahluwalia 2023 ONCA 476. Speaking for the Court of Appeal, Justice Benotto acknowledged that inter-partner violence was a pervasive social problem,[7] but dismissed the “new” tort of family violence, stating at paragraph 91:
“In summary the trial judge’s concern that “long-term, harmful patterns of conduct that are designed to control or terrorize” are not captured by existing torts is misplaced. She found that the appellant had subjected the respondent to years of physical, psychological, emotional and financial abuse constituting behaviour calculated to be coercive and controlling. These facts fall squarely within the existing jurisprudence on battery, assault and intentional infliction of emotional distress. The jurisprudence cited above demonstrate that patterns of recurring behaviour are addressed.”[8]
The Court of Appeal ultimately determined that the utilization of the new definition of family violence in the legislation was misplaced, as the intention of the legislative changes was to recognize the impact of family violence when creating post-separation parenting plans, not to create new causes of action. This intent is highlighted by its references in section 16(3) and 16(4) of the Divorce Act for determining the best interests of the child.[9] The Court of Appeal also declined to create a new tort of coercion, as there was significant overlap with the pre-existing tort of intentional infliction of emotional distress.[10]
In the Superior Court decision, the trial judge considered the tort issues prior to the legislative regime. The Court of Appeal decision also held that the starting point for a determination of financial issues arising from the marriage is the application of the relevant statutory provisions. Other claims, such as torts, must be properly considered only after all legislative claims have been addressed, as the statutory entitlements may inform those determinations.[11]
Although the Court of Appeal declined to create any new torts surrounding family violence or coercion, it is important to note that the Court still acknowledged the seriousness of the damages suffered by the Wife as contemplated by the trial judge. The Court upheld a significant costs award against the Husband through pre-existing tort remedies, although it was reduced to $100,000 from $150,000. In this instance, the additional $50,000 in punitive damages were not justified due to the compensatory and aggravated damages accomplishing the objectives of condemnation.[12]
Despite having declined to create a new tort, the Court of Appeal’s ruling nonetheless highlights the role of existing tort remedies to the area of family law generally. As it stands, parties may still seek remedies for family violence through the pre-existing torts of battery and assault and intentional infliction of emotional distress, among others, within the family law context. Perhaps even more importantly, the comments made by the judiciary – as well as the significant monetary penalty imposed – are indicative of the court’s increasing intolerance of abusive conduct of any kind within the family arena. They also serve as a clear indication that those who have been victimized by intimate partner violence are entitled to be compensated for the harms that they have suffered.
[1] An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act
[2] Divorce Act, RSC 1985, c 3 (2nd Supp), section 2(1)
[3] Divorce Act, section 16(3) and 16(4)
[4] Ahluwalia v. Ahluwalia, 2022 ONSC 1303, para 4
[7] Ahluwalia v. Ahluwalia 2023 ONCA 476, para 1
[9] Ibid, paras 101-102
[11] Ibid, paras 136-137