Family violence leaves enduring scars on the fabric of society, echoing through generations with its silent, yet deafening impact. In the last few years, discourse surrounding how Canada addresses family violence has garnered significant attention, sparking crucial conversations about legal frameworks and societal responses.
In 2022, the Ontario Superior Court heard what would become a ground-breaking case in family law. In Ahluwalia v Ahluwalia, 2022 ONSC 1303, a mother answered her ex-spouse’s application for divorce with a tortious claim against him, arguing that she should be compensated with damages for the mental and physical harms suffered from her ex-spouse’s 16-year pattern of violent, coercive, and controlling behaviour against her.[1]
Justice Mandhane ruled it was necessary to recognize a novel common law tort of family violence as there was no other tort that could accurately capture “the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness.”[2]
In characterizing the tort, Justice Mandhane held that in order to establish liability, there needed to be a “pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessities of life, psychological abuse, financial abuse, or killing or harming an animal of property.”[3]
Justice Mandhane assessed damages at $150,000: $50,000 each for compensatory, aggravated, and punitive damages.[4] The monumental decision for survivors of family violence was hailed as revolutionary, although celebrations were tempered by cognisance of the impending appeal.
On 7 July 2023, the Ontario Court of Appeal released its unanimous decision in Ahluwalia v Ahluwalia, 2023 ONCA 476. Writing for the court, Justice Mary Lou Benotto acknowledged that although “intimate partner violence must be recognized, denounced and deterred” it was unnecessary to create a novel tort of family violence or coercive control given that existing torts suffice in addressing patterns of abuse within family structures.[5]
In particular, the Court rejected the wife’s submissions that the existing tort of intentional infliction of emotional distress could not adequately capture the underlying pattern, dynamics, and sophistication of family violence, confirming that the pre-existing tort already addressed such harms.[6]
The Court further held that compensatory and aggravated damages were sufficient to accomplish the objectives of denunciation, ultimately reversing the trial judge’s award of punitive damages and reducing the wife’s damages to $100,000.
As of the time of this article, it is unknown whether the case has been applied for appeal to the Supreme Court of Canada.
While many are split on the outcome of the decision, one consensus is clear: family violence is an insidious reality affecting Canadian families at an increasingly alarming rate. Among reported incidences, the largest increases in family violence were seen in Quebec and New Brunswick, both undergoing an over twenty percent increase from 2009 to 2021.[7]Notably, Indigenous women and girls are nearly four times more likely to experience some form of intimate partner violence than other women.[8]As of 12 November 2023, seventy-two municipalities in Ontario, including the city of Toronto, have declared intimate partner and gender-based violence an epidemic.[9]
Roxanna is a 3L at Osgoode and a Co-Publications Director for the Osgoode Hall Family Law Association.
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[1] Ahluwalia v Ahluwalia, 2022 ONSC 1303 at para 27.
[2] Ibid at para 54.
[3] Ibid at para 55.
[4] Ibid at paras 112–120.
[5] Ahluwalia v Ahluwalia, 2023 ONCA 476 at para 91, 103.
[6] Ibid at para 107.
[7] Statistics Canada, “Victims of police-reported family and intimate partner violence in Canada, 2021” (19 October 2022), online: <https://www150.statcan.gc.ca/n1/daily-quotidien/221019/dq221019c-eng.htm>.
[8] Ibid.
[9] “Building a Bigger Wave, “The Epidemic of GBV-IPV”, online: <https://www.buildingabiggerwave.org/actions/gbv-epidemic#scroll>;
Tracy Lindeman, “Canada calls gender violence an epidemic after triple femicide inquest” (16 August 2023), online: <https://www.theguardian.com/world/2023/aug/16/canada-criminalize-coercive-control-gender-violence>.