Ahluwalia v. Ahluwalia, 2023 ONCA 476

Court of Appeal ruling in Alhuwalia v. Ahluwalia: Should family violence be recognized as its own tort?

On July 7, 2023, the Court of Appeal ruled in Ahluwalia v. Ahluwalia that the trial judge erred in creating a new tort of "family violence". The court held that existing torts, when properly applied, addressed the harm suffered in domestic relationships. The case summary and court commentaries are described below.

It is important to note that the issue before the court is not whether intimate partner violence exist nor whether societal steps should be taken to address the concerns of domestic violence. Instead, the issue is whether, in the context of family law court proceedings- when numerous and varied remedies already exist- a tort specific to "family violence" should be created.

In this case, the parties were married in India in 1999. The father immigrated to Canada in 2001, and the mother and child arrived the following year. In India, the husband was a lawyer, and the wife was a teacher. When the parties settled in Canada, they had limited social and financial support, and lacked the resources to get their foreign credentials accredited in Canada. As a result, the parties worked in factory and retail jobs to make ends meet.

The father exhibited patterns of emotional and physical abuse and financial control. Based on the evidence provided, there was no question as to whether the wife was a victim of physical or emotional abuse throughout the marriage. The husband currently faces criminal charges for assault and uttering death threats against his wife. In 2016, the parties separated, and the wife brought an action for statutory relief as well as damages for the husband’s conduct during the marriage.

At trial, the judge assessed damages at $150,000: $50,000 for each of compensatory, aggravated, and punitive damages. The husband admits that he is liable in damages but disputes the amount awarded. He also objects to the novel tort, which he says should not be recognized. The wife submits that creating a new novel tort was necessary because existing torts do not address the cumulative pattern of harm caused by family violence.

The Court of Appeal has issued a ruling regarding the trial judge’s decision on the inclusion of tort claims in family law proceeding. The key finding of the court’s decision are listed below.

1. Recognition of Tort Claims in Family Law: The Court of Appeal upheld that the trial judge did not err by considering a tort claim within the context of a family law action. The court emphasized that such claims have already been acknowledged in previous court proceedings. Moreover, it clarified that there is no legislative intention to preclude tort actions in family law matters. Importantly, this ruling reaffirms that victims do not forfeit their legal remedies upon entering into a marriage or domestic relationship.
2. Creation of New Torts: The Court of Appeal identified an error made by the trial judge in creating a new tort solely on the grounds of family violence. The court emphasized that the creation of a new tort should only occur when there is a harm that urgently demands a legal remedy that is currently unavailable. This highlights the need for caution and thorough consideration before introducing new concepts.
3. Misguided Approach in Fashioning the Tort of Family Violence: The Court of Appeal found fault with the trial judge’s approach in crafting the tort of family violence, even if there were grounds for establishing a new tort. The judge’s reliance on the specific application of the definition of "family violence" under section 2 was deemed misguided. The trial judge had mistakenly adopted a definition intended for post-separation parenting plans and applied it to shape the new tort.
4. Non-recognition of the Tort of Coercive Control: During the trial, the wife proposed the recognition of a more comprehensive concept of family violence embodied in the term "coercive control," highlighting issues of subordination and control. However, the Court of Appeal ruled against recognizing this tort, citing its overlap with the existing tort of intentional infliction of emotional duress.
5. Failure to Consider Denunciation and Deterrence in Assessing Damages: The Court of Appeal ruled that the trial judge had overlooked the crucial goal of denunciation and deterrence when assessing damages. It emphasized that awarding damages should consider discouraging intimate partner violence and combatting the broader social harm inflicted upon victims of domestic violence.
6. Priority of Statutory Claims over Tort Claims in Family Law: The Court of Appeal clarified the procedural hierarchy when considering tort claims within family law matters. It ruled that statutory claims should be assessed before tort claims, ensuring a comprehensive evaluation of liability and damages.

The Court of Appeal’s ruling represents a milestone in the evolving legal landscape surrounding tort claims in family law proceedings. By clarifying the boundaries of the law, this decision contributes to the ongoing conversation about the appropriate remedies available to victims of family violence and the broader goals of justice and deterrence.

Disclaimer: This blog sets out a variety of information relating to the law that is to be used for educational purposes and is not legal advice for your particular situation. The author(s) of this blog do not intend the blog to be a source of legal advice.

Written by Adriana Totera

* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.