Can My Spouse Be Held Liable for Intimate Partner Violence in a Family Law Claim?

By Stephanie Cox

The simple answer to this question is, “yes.”

Despite the Ontario Court of Appeal’s recent rejection of the tort of family violence, created by Justice Renu Mandhane in Ahluwalia v. Ahluwalia, 2022 ONSC 1303, the Ontario Court of Appeal affirmed that the pre-existing torts of assault, battery and intentional infliction of emotional distress, are sufficient to account for the damages sustained by victims of intimate partner violence, particularly where they have been subjected to years of physical, psychological, emotional and financial abuse.

In the landmark trial decision of Ahluwalia v. Ahluwalia, 2022 ONSC 1303, Justice Renu Mandhane of the Ontario Superior Court of Justice ordered a husband to pay his former wife, Ms. Ahluwalia, $150,000 in damages on account the pattern of violent abuse he inflicted on his former wife during their 16-year marriage. The Ontario Court of Justice found that Ms. Ahluwalia was subjected to extensive emotional, psychological, financial, and physical abuse. Trial judge, Justice Renu Mandhane, accepted the wife’s evidence that the parties’ relationship was characterized by a pattern of emotional and physical abuse and financial control. The wife testified to three specific incidents of physical violence: in 2000, 2008, and 2013.

In the trial judge’s view, the existing torts were focusing on narrow methods of liability and did not adequately address the day-to-day reality of family violence. For example, “one hard beating at the beginning of a marriage” could create a constant imminent threat of violence and focusing liability on the one incident risked obscuring that fact. In distinguishing the tort of family violence from exiting torts, Justice Mandhane noted that “existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize.”

In her analysis, Justice Mandhane considered the proper starting point to be the statutory definition of “family violence” in s. 2 of the Divorce Act. Based on that definition, she held that a plaintiff could establish a defendant’s liability through any of three modes: (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. While these modes of liability overlapped with existing torts, she considered that the existing torts “do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence”. While intentional infliction of emotional distress, for instance, requires showing that a specific interaction or behaviour was “flagrant and outrageous” and resulted in injury, family violence would allow consideration of, and compensation for, the pattern of violence, not just the individual incidents.

In Ahluwalia v. Ahluwalia, 2023 OCA 476, the Ontario Court of Appeal rejected the new tort of family violence finding that its creation was unnecessary because the existing torts already recognize and address the different types of behaviors which constitutes intimate partner violence. The Ontario Court of Appeal also remarked that even if it was necessary to create a new tort, they did not agree with the trial judge’s reliance on the definition of family violence in the Divorce Act to frame such a tort.

Justice Benotto of the Ontario Court of Appeal, stated, the “years of physical, psychological, emotional and financial abuse” inflicted on the wife falls “squarely within the existing jurisprudence of battery, assault and intentional infliction of emotional distress.” The judge continued by noting that “existing torts are flexible enough to address the fact that abuse has many forms” including those in which there is “recurring and ongoing abuse, intimidation, domination and financial abuse.”

In arriving at its decision, the Ontario Court of Appeal affirmed that while intimate partner violence does in fact exist in Canada as a societal problem, the central issue in the case was whether in the context of family law court proceedings – where there are already various remedies – a tort specific to “family violence” should be created. The Ontario Court of Appeal made clear that they still have a number of existing torts available to seek relief and that those torts were “sufficient to address the issues in this case.” In pursuing the appeal, the husband did not challenge the finding of intimate partner violence, nor did the Ontario Court of Appeal.

Despite the rejection of a new standalone tort of family violence, the Ontario Court of Appeal’s decision may be of assistance. Justice Benotto’s first paragraph can be utilized in future cases to highlight the judiciary’s recognition of the perils of intimate partner violence, its scope and harms. In her decision, Justice Benottos stated: “Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.”

That being said, without the tort of family violence as framed by Justice Mandhane, it has yet to be seen if existing torts will sufficiently capture and right wrong the “repetitive nature” or the “fundamental breach of trust and domination,” of intimate partner violence, the way in which the Ontario Court of Appeal believes them to. Of assistance to victims of intimate partner violence is the Ontario Court of Appeal’s clarification that bringing a tort in a family proceeding is appropriate. This, in conjunction with the declaration that the existing torts are sufficient to capture the cumulative harm associated with a pattern of sustainable violence, may serve as helpful precedent.

In sum, common law spouses and married spouses may pursue monetary compensation for intimate partner violence and may do so within a family court case, such as in an application for divorce that seeks corollary relief. The case of Schuetze v. Pyper, 2021 BCSC 2209, where a trial judge awarded damages of $795,029 for an incident of physical violence in an intimate relationship, is an example of relief obtained under the existing torts (that pre-date Ahluwalia v. Ahluwalia).

Victims of intimate partner violence are encouraged to seek out additional professional support, such as safety planning, when separating and/or commencing legal action against their spouse.

*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.