Written on behalf of Long Shariff & Associates
The Ontario Superior Court just issued a landmark decision that establishes a new tort of family violence in family law litigation. While the Canadian Federal Divorce Act mandates a no-fault” approach to spousal support, in the Ahluwalia v. Ahluwalia decision issued in February of 2022, Justice Mandhane recognized the “violent” nature of the abuse endured by one of the former spouses and awarded her $150,000 in damages in addition to spousal support, child support, and equalization payments.
Prior to seeking a divorce, Mr. and Ms. Ahluwalia had been married for 16 years. According to the evidence accepted by Judge Mandhane, those 16 years were filled with a “long-term pattern of violence, coercion, and control”. At the time of the former spouses’ separation, the children were already estranged from the father, so parenting issues were not part of the divorce proceedings.
Divorce Act and Spousal Support
Across all the provinces and territories in Canada, including Ontario, spousal support is governed by the federal Divorce Act. Section 15.2 of the Divorce Act specifically dictates that, when making an award of spousal support, judges must not take into account “misconduct of any spouse in relation to the marriage”.
Part of the reason that judges are not permitted to take into account spousal misconduct in awarding spousal support is largely because of the intent behind making a spousal support award. Spousal support is “narrowly focused on compensation and self-sufficiency in the context of a relationship of economic interdependence and mutual aid”, and the Divorce Act “does not provide a victim/survivor (“survivor”) with a direct avenue to obtain reparations for harms that flow directly from family violence”.
Tort of Family Violence
Torts are defined as injuries or wrongs that are not criminal in nature, are the result of a violation of legal duty, and in which damages can be claimed. In order for an individual to be successful in establishing grounds for the tort of family violence, that individual must demonstrate the following:
Conduct by a family member towards the plaintiff, within the context of a family relationship, that:
- Is violent or threatening; or
- Constitutes a pattern of coercive and controlling behaviour; or
- Causes the plaintiff to fear for their own safety or that of another person.
An individual seeking a damage award based on this tort must not only plead and prove on a balance of probabilities that a family member engaged in a pattern of conduct that included more than one incident of abuse. In order to make a successful claim, it will be insufficient to point to an unhappy or dysfunctional relationship as a basis for liability in tort.
The individual alleging the abusive conduct must be able to support that allegation with specific examples, and cannot simply make a “series of bald assertions”.
Once the judge is satisfied that the allegations are factually supported, and liability has been proven, the judge can then take into account the specific “nature of the family violence” including factors such as:
- Circumstances leading and surrounding to the abuse;
- The extent of the abuse;
- Duration of the abuse; and
- The specific harm suffered as a result of the abuse.
Family violence can be physical, emotional or financial
Despite prohibiting judges from taking abuse into account for determinations of spousal support, the Divorce Act is instructive as to the types of behaviour that can be considered abusive and that could fall under the umbrella of family violence. It is of note that “violence” under the Act is not limited to physical violence and can extend to emotional and financial abuse as well. The Act defines family violence as:
“any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes:
- physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
- sexual abuse;
- threats to kill or cause bodily harm to any person;
- harassment, including stalking;
- the failure to provide the necessaries of life;
- (psychological abuse;
- financial abuse;
- threats to kill or harm an animal or damage property; and
- the killing or harming of an animal or the damaging of property.
In finding that Mr. Ahluwalia was a perpetrator of family violence, Justice Mandhane pointed to a number of facts including his verbal threats, his financial control, his physical abuse, all of which culminated in him leaving the relationship and immediately cutting off Ms. Ahluawalia from all financial resources leaving her with no money to buy groceries.
Limitation Periods do not apply to claims of family violence
While Mr. Ahluwalia tried to raise a limitations act defence, claiming that Ms. Ahluwalia’s claim was statute-barred as it was brought nearly 5 years after the dissolution of their marriage, he was unsuccessful in doing so In accordance with the Limitation Act, because the Limitation Act does not apply to claims of family violence,
16(1) There is no limitation period in respect of:
(h.2) a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the assault:
(i) they had an intimate relationship,
(ii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person.
Spousal support is not the only award that an abusive spouse can face in family litigation
This decision is instructive to anyone involved in family litigation. It is clear that, at least in Ontario, and at least until a Court of Appeal or a Supreme Court decision is released, judges are able to award damages outside of spousal support to somehow compensate an individual that was subjected to protracted, repeated, violence in their marriage.
Contact the Family Lawyers at Long Shariff & Associates in Stouffville for Compassionate and Proactive Legal Representation for Domestic Violence Matters
The empathetic lawyers at Long Shariff & Associates regularly work with clients dealing with family violence during a separation or divorce. We will bring our entire team to the table when necessary, for each client to find the best solution to ensure their safety quickly and effectively. To review your matter in confidence with a member of our team, please reach out to us online, or call us at 905-591-4545.