APPEAL WATCH: Ahluwalia v Ahluwalia on torts in family law

In Ahluwalia v Ahluwalia, 2023 ONCA 476 [Ahluwalia], the Ontario Court of Appeal (“ONCA”) granted a partial appeal and reduction of damage awards in the context of a family law proceeding. Significantly, it denied the creation of the novel tort of “family violence.” In doing so, it clarified the requirements for introducing tort claims in family law proceedings and the conditions for creating new torts.

Facts

The parties in Ahluwalia were married in India in 1999 and soon after immigrated to Canada. They separated in 2016. At trial, evidence regarding the husband’s emotional, physical, and financial abuse of the wife was heard and accepted. The husband engaged in physical violence against the wife in 2000, 2008, and 2013. A fit of jealousy resulting from his wife’s alleged flirtation with other men prompted violent incidents in 2000 and 2008; his drunkenness led to an attack in 2013. These specific examples of emotional incontinence and violent behaviour were “part of a pattern of conditioning and control” (Ahluwalia, para 13). The trial judge accepted the wife’s testimony regarding emotional abuse and threats of financial abandonment. At the time of the appeal decision, criminal charges brought in September 2021 against the husband remained outstanding.

 Judicial History

In assessing the wife’s action for statutory relief for “divorce, child support, spousal support, and property equalization” and damages for the husband’s abuses (Ahluwalia, para 16), the trial judge found that the Divorce Act, RSC 1985, c 3 (2nd Supp) [Divorce Act] does not fully capture all the legal issues endemic to cases of alleged domestic violence. She therefore assessed tort damages (Ahluwalia, para 17) and, in doing so, relied on analogous American jurisprudence on the tort of “battered women’s syndrome” to identify the novel tort of “family violence” (Ahluwalia, para 19).

The trial judge noted that battered women’s syndrome was distinct from existing American torts in its “assessment of liability, causation, and damages” (Ahluwalia, para 19). In this regard, the tort of family violence expands the unduly narrow liability for inter-spousal violence and is in keeping with increasing social awareness of such abuse, as well as tort law’s traditional orientation towards compensatory relief (Ahluwalia, paras 20-21). The trial judge additionally noted that this legal development accords with Canada’s international treaty commitments to address domestic violence and the judiciary’s role in censuring it (Ahluwalia, para 22).

The trial judge grounded the elements of this tort in the definition of “family violence” furnished at section 2 of the Divorce Act and proceeded to set out three avenues for establishing liability:

1. Intentional conduct that was violent or threatening;
2. behaviour calculated to be coercive and controlling to the plaintiff; or
3. conduct the defendant would have known with substantial certainty would cause the plaintiff to subjectively fear for their own safety or that of another person (Ahluwalia, para 23).

Significantly, this tort is distinct from existing and overlapping torts since it allows for compensation based on the cumulative effects and patterns of abuse. Nevertheless, allegations must tie specific conduct to particular events (Ahluwalia, para 24). The trial judge found the husband liable under all three elements of family violence in addition to assault, battery, and intentional infliction of emotional distress (Ahluwalia, para 25).

Issues

Six issues were before the Court of Appeal:

1. Did the trial judge err by including a tort claim in a family law action?
2. Did the trial judge err by creating a new tort?
3. Did the trial judge err in fashioning the tort of family violence?
4. Should this court recognize the tort of coercive control?
5. Did the trial judge err in assessing damages?
6. What is the procedure for a court considering a tort claim in a family law action?

Decision

The trial judge did not err by considering a tort claim in a family law action

Benotto JA considered the appellant’s use of Frame v Smith, [1987] 2 SCR 99 [Frame] to argue that it is the prerogative of the legislature and not of the judiciary to introduce new types of claims in family law (Ahluwalia, para 39). She rejected the appellant’s argument on the basis that Frame does not fully address the question at hand, citing three principal reasons.

First, although the relevant statutory scheme adequately addressed the facts and legal issues in Frame, not every family law statute provides comprehensive remedies for each case. Recourse to tort action in that case was unnecessary, but it does not follow that the legislature intended to deny the possibility of tort actions in all family law cases (Ahluwalia, para 41).

Benotto JA then highlighted that the courts allowed a tort action to proceed in the relatively recent family law case Leitch v Novac, 2020 ONCA 257 (Ahluwalia, para 42). Finally, she referred to the repugnancy of intimate partner violence, adding that “[t]hose who are victimized do not lose their remedies when they marry or begin a domestic partnership” (Ahluwalia, para 43).

The trial judge erred by creating a new tort

As Benotto JA explained, tort law alone is incapable of solving family violence and its expansion “is only appropriate when there is a harm that ‘cries out’ for a legal remedy that does not exist” (Ahluwalia, para 47). She then referred to Merrifield v Canada (Attorney General), 2019 ONCA 205 to support the propositions that the development of common law is slow and evolutionary and that new torts are not to be created when there are remedies already in place (Ahluwalia, paras 50-51). As the Supreme Court of Canada (“SCC”) decided in Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, a difference only in the quantum of damages does not meet the threshold for creating a new tort (Ahluwalia, para 52).

The Court of Appeal additionally turned to the dissenting reasons of Brown and Rowe JJ in Nevsun Resources Ltd v Araya, 2020 SCC 5 [Nevsun], in which they devised a test for recognizing novel torts: “it must reflect a wrong, be necessary to address that wrong, and be an appropriate subject of judicial consideration” (Ahluwalia, para 56, quoting Nevsun, para 237).

In the trial judge’s opinion, existing torts place insufficient emphasis on patterns of behaviour and thus inadequately addressed liability, causation, and damages in the present case (Ahluwalia, paras 58-59). Benotto JA concluded that the trial judge erred in this assessment, suggesting that her findings of fact accorded with the established elements of battery and assault (Ahluwalia, paras 61-68) and the intentional infliction of emotional distress (Ahluwalia, paras 69-70). 

The Court of Appeal highlighted that the trial judge failed to cite any jurisprudence demonstrating that patterns of abuse fall outside the purview of these existing torts. In fact, the trial judge relied on case law that shows the opposite (Ahluwalia, para 73). Benotto JA then surveyed at length additional jurisprudence dealing with the treatment of such patterns in these existing torts (Ahluwalia, paras 74-90). 

The trial judge erred in fashioning the tort of family violence

Benotto JA found that in devising the novel tort, the trial judge erroneously relied on the definition of “family violence” furnished at section 2 of the Divorce Act, which was specifically conceived to address “post-separation parenting plans” (Ahluwalia, para 94). This disregarded the legislature’s intention and, moreover, would introduce uncertainty in family law proceedings (Ahluwalia, para 102).

The Appeal Court should not recognize the tort of coercive control

Benotto JA then addressed the tort of “coercive control” proposed by the respondent as a “more sophisticated” substitute to the tort of family violence (Ahluwalia, para 103). Coercive control requires that a person:

1. in the context of an intimate relationship
2. inflicted a pattern of coercive and controlling behaviour
3. that, cumulatively, was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm (Ahluwalia, para 104).

The Court of Appeal rejected this novel formulation on the grounds that the tort of intentional infliction of emotional distress already provides a sufficient remedy; that the elimination of proof of visible injuries is inapplicable to the present case; and that the elimination of the proof element is better suited to the legislature than to the courts (Ahluwalia, para 106).

Benotto JA next engaged at length with the proposal to eliminate the requirement for proof of injury (Ahluwalia, paras 109-124). She concluded that existing tort law is sufficiently robust to address the facts of this case, which do not warrant such a far-reaching judicial intervention (Ahluwalia, paras 110-111, 113, 119). Importantly, such a development would destabilise family law and work contrary to its salutary development of recent decades away from the traditional, adversarial model (Ahluwalia, paras 119-122). 

The trial judge did not err in assessing compensatory and aggravated damages, but erred in assessing punitive damages

Informed by the guidance of Whiten v Pilot Insurance, 2002 SCC 18 on punitive damages, Benotto JA found that the award of general and aggravated damages sufficiently advanced “the goals of denunciation and deterrence” (Ahluwalia, para 132) and that the trial judge erred in failing to explain her assessment of punitive damages (Ahluwalia, para 133). She therefore reduced the damages by $50,000.

Courts should complete statutory claims before assessing liability and damages for tort claims

The Court of Appeal asserted that legal remedies in family law proceedings ought to begin with the relevant statutory framework before turning to tort law (Ahluwalia, para 141).

Analysis

When the SCC hears Ahluwalia on appeal, one expects it to clarify doctrinal questions such as the test for the creation of novel torts. One also hopes that it will be attentive to the concerns Benotto JA raised throughout her decision regarding the delicacy of family law proceedings and what special considerations our legal system affords the institution of the family.

In recent decades and perhaps especially in the last decade, Canadian society has become increasingly aware and sensitive to the unequal distribution of power and its abuses. One labours to think of abuse more repugnant to our moral intuitions and more injurious to society than domestic violence. Nevertheless, as Benotto JA states at the beginning of her judgement, “[i]ntimate partner violence is a pervasive social problem” of increasing frequency (Ahluwalia, para 1).

In fashioning the novel tort of family violence and in her assessment of punitive damages, the trial judge stressed the importance of the judiciary’s role in condemning this social ill (Ahluwalia, paras 22, 131). Although the severity of the trial judge’s decision and the appellant’s formulation of the tort of coercive control satisfy one’s impulse for immediate substantive justice, the Court of Appeal’s more measured approach was warranted. An important and consistent theme in this regard was the promotion of procedural justice in family law. Benotto JA thus explained the long-reaching effects of family law proceedings at para 120:

Family law affects not just the parties, but their children, their extended families and society at large. And for every claim that has merit, there are some which involve claims made for strategic reasons. That is why, for decades, progressive elements in family law sought to move away from the fault allegations that were shown to cause permanent and ongoing damage to the family. It took time, but the move away from an adversarial approach towards a resolution-based approach has been adopted.

The respondent’s proposal to eliminate the proof of injury element was therefore inconsistent with the recent direction of family law “towards a resolution-based system” as well as its wider ambitions of familial and social stability (Ahluwalia, para 122). Contrary to the interests of families, victims, and defendants, it would promote the short-term and immediate satisfaction of a lay sense of justice at the expense of long-term stability and legal certitude.

Advocates for greater access to justice frequently cite the costliness of legal proceedings as a significant barrier. Costliness, of course, most obviously refers to time and money. Yet, perhaps above all in family law proceedings, there is an additional and unquantifiable cost of instability and distress that flows from lengthy or even frivolous litigation. Our legal system acknowledges this, and the Court of Appeal has affirmed it. One hopes the SCC will follow suit.