Tort of Domestic Violence: Ahluwalia v Ahluwalia, 2023 ONCA 476
- Saranjit Dhindsa
- Feb 12
- 4 min read
In 2023, the Ontario Court of Appeal (ONCA) in Ahluwalia v. Ahluwalia 2023 ONCA 476, notably rejected the creation of a new tort for "family violence."
In doing so, the ONCA clarified the criteria for introducing tort claims within family law and the conditions under which new torts could be recognized.
Facts
The couple were married in India in 1999 and immigrated to Canada shortly after, before separating in 2016. During the trial, evidence was presented of the husband's emotional, physical, and financial abuse of the wife. The husband had been violent toward the wife on multiple occasions: in 2000, 2008, and 2013, with incidents involving jealousy, intoxication, and violent behavior. These acts were described as part of a broader pattern of control and conditioning. The wife’s testimony was accepted regarding emotional abuse and threats of financial abandonment. As of the appeal, criminal charges against the husband, filed in September 2021, were still pending.
Judicial History
In her judgment, the trial judge considered the wife's claim for statutory relief under the Divorce Act, which included requests for divorce, child and spousal support, property equalization, and damages related to the husband's abusive conduct. Finding that the Divorce Act did not fully address all the legal issues in domestic violence cases, the trial judge introduced tort claims for the abuse, drawing on U.S. precedents such as the “battered women’s syndrome” tort.
She then proposed the new tort of "family violence," which aimed to address the broader, cumulative impact of abusive patterns within intimate relationships. The judge based the elements of the new tort on the definition of "family violence" in the Divorce Act and suggested three criteria for establishing liability:
Intentional violent or threatening conduct
Coercive and controlling behavior
Actions that the defendant knew would cause the plaintiff to fear for their safety or the safety of others.
The trial judge also found the husband liable for assault, battery, and intentional infliction of emotional distress.
Issues
The Court of Appeal considered six key issues:
Whether the trial judge was wrong to include a tort claim in the family law case.
Whether the trial judge erred in creating a new tort.
Whether the trial judge made a mistake in formulating the tort of family violence.
Whether the court should recognize the tort of coercive control.
Whether the trial judge correctly assessed damages.
What procedural steps courts should follow when dealing with tort claims in family law cases.
Decision
The Court of Appeal held that there was no error in considering tort claims in family law.
The decision, led by Justice Benotto, rejected the appellant's argument, which relied on Frame v Smith to suggest that only the legislature, not the courts, could introduce new tort claims in family law. Justice Benotto pointed out that while the statutory framework in Frame v Smith was sufficient for its case, it didn't preclude the possibility of tort claims in all family law situations. She also referenced the Leitch v Novac case, which allowed a tort claim in a family law context, and emphasized that victims of intimate partner violence retain legal remedies even within marriage or domestic partnerships
Error in creating a new tort
The Court of Appeal found that the trial judge had erred in creating the tort of "family violence." Justice Benotto explained that tort law cannot resolve the full scope of family violence and that new torts should only be recognized in cases where an existing legal remedy is lacking. The Court referenced Merrifield v. Canada (Attorney General) and Scalera v. Lloyd’s of London to support the view that creating a new tort simply for different damages does not meet the necessary criteria. Furthermore, the Court emphasized that existing torts like assault and battery already adequately cover cases of family violence, including the patterns of abuse highlighted in the trial.
The Court also noted that the trial judge relied on the Divorce Act's definition of "family violence," but this was intended specifically for post-separation matters and did not suit the broader context of tort law.
Coercive control as a tort
The Court rejected the proposed tort of "coercive control" presented by the respondent, arguing that existing torts, such as the intentional infliction of emotional distress, already addressed the relevant issues. Justice Benotto criticized the suggestion to eliminate the requirement for visible injury, which she believed was better suited for legislative consideration rather than judicial creation.
Damages
The Court found that the trial judge's awards for general and aggravated damages were appropriate for addressing denunciation and deterrence. However, the award for punitive damages was reduced by $50,000 due to the trial judge's failure to justify her decision.
Procedure for tort claims in family law
The Court of Appeal stated that family law cases should primarily rely on statutory remedies before turning to tort claims. This ensures that the family law system remains consistent with its goals of stability and resolution rather than adversarial litigation, given the nature of the matters themselves and the individuals involved.
Analysis
The case has now been granted leave to be heard at the Supreme Court of Canada (SCC) in February 2025. The SCC is expected to clarify key issues raised in this case, such as the test for recognizing new torts and the appropriate approach to family violence in the legal system. The Court of Appeal's decision reflects a balance between addressing serious social issues like intimate partner violence and ensuring that family law proceedings remain fair, consistent, and focused on long-term resolution.
The Court’s decision is a reminder that the introduction of new legal remedies, especially in family law, must be approached cautiously to avoid destabilizing the existing legal framework and risking unintended consequences. The emphasis on procedural justice reflects a broader trend in family law away from fault-based approaches and toward solutions that protect the family unit while promoting stability and fairness.
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