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Personal Injury Update

By: Andrew Spurgeon

Introduction

It is not every day that a new tort is recognized.  One was on February 28, 2022, in Brampton.  The name of the tort is: “Family Violence”.  

The circumstances which resulted in this new tort stem from the marriage of Amrit and Kuldeep Ahluwalia who were married in 1999 and separated in 2016.  They had two children who have been estranged from their father since 2017.  The parties (in the husband’s application for divorce) disputed child and spousal support, equalization.  

Five years after separation the wife amended her pleadings (reply) to seek damages for abuse that she alleged she suffered during the marriage.  She sought “general, exemplary and punitive damages.”  In so doing, the wife plead a general tort of family violence without pleading the specific torts of assault, battery or of emotional distress.  A trial was conducted in relation to all issues set out in the Application and Reply.  

The court determined that at its core, the marital relationship was not only dysfunctional, but it was also violent.  The wife endured a sixteen-year pattern of coercion, control and abuse at the hands of her husband.

Failed Limitation Argument

At the outset of the trial the husband moved to dismiss the wife’s claim for damages set out in her Reply in relation to violence as the pleading occurred five (5) years after separation.  The court dismissed this limitation period argument by pointing to s. 16(1) (h.2) (i) (ii) which says that no limitation applies to a case based on assault if at the time of the assault the claimant was in an “intimate relationship, or was financially, emotionally, physically or otherwise dependent upon the other person.”

Scope and Character of Wrongdoing

In the course of the trial it became clear that there was a divergence between the parties as to how to cast the allegations of spousal abuse being considered.  The husband denied abuse and focused on several discreet incidents which the wife alleged there was specific violence.   He submitted that the wife had to prove three discreet acts of battery she alleged.  

The wife cast her experience of abuse in the relationship more broadly.  She took a longitudinal perspective and asked the court to characterize the relationship as inherently abusive.  She pointed to the husband’s controlling and oppressive behavior and ongoing acts of mental abuse, financial threats and coercive treatment occasionally highlighted by spikes of physical threats and violence.   She invited the court to take a holistic approach to casting the husband’s overall behavior as wrongful over time such that it should attract liability in its totality. 

The court determined to adopt the latter approach as opposed to the former.  The question it then had to deal with was whether within the framework of a divorce proceeding under the Divorce Act there was a basis to establish liability for damages for such wrongful conduct?   

Statutory Right of Action?

Ultimately the court concluded that the statutory framework did not in and of itself, permit for the awarding of damages against one spouse in favour of the other for abuse.  

The court concluded that the single means by which a court may allocate money (establish liability of one spouse to pay the other flowing out of their relationship with each other) in the Divorce Act is spousal support. 
 
Section 15.2 of the Divorce Act does not include “family violence” as a factor to consider in determining spousal support.  Indeed s. 15.2(5) specifically prohibits the court form considering “misconduct” of a spouse in relation to the marriage as a factor to consider in determining support.  To the extent abuse can be considered at all as a factor in assessing support, it can only bear upon the spouses in respect of economic impact of the marriage on them.  The court on this point concluded: 
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 and that go well-beyond the economic fallout of the marriage.

Common Law Fills the Breach

Unable to find a right of action yielding damages for a persistent, longitudinal pattern of abusive behavior as among spouses within the statutory framework of the Divorce Act, the court looked to the common law.  

Aware that new causes of action in tort can be created through re-interpretation of precedent and extension of existing causes of action in new circumstances, the court noted that there is an emerging recognition in the common law world of a distinct factual pattern along the lines of “battered women’s syndrome” which may span and incorporate elements relating to duty of existing causes of action.  

The court was of the view that available causes of action like assault, battery, forcible confinement, intentional infliction of emotional distress and breach of fiduciary duty were helpful in respect of identifying duties but insufficient in addressing the phenomenon of longitudinal abuse in respect of causational and damages.  Consequently, a distinct separate tort is warranted. 
     
Elements of the Tort of Family Violence

To define the elements of the tort, the court looked to the Divorce Act itself which has a provision defining “family violence” and took that definition as the elemental framework of the tort the court was prepared to recognize. Specifically, the court indicated that a plaintiff must prove on the balance of probabilities that the defendant family member engaged in:

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 interesting approach adopted by the court in respect of these three alternate elements is the burden of proof the court ascribed to each alternate element.  

With respect to the first option, the plaintiff bears the burden of proving the defendant’s intent.  With respect to the second, the burden of proof requires that the plaintiff show that the defendant’s behaviour is “calculated to be coercive” in other words – intentional.  With respect to the third option the plaintiff must show that the defendant “would know with substantial certainty [by doing the impugned conduct] would cause the plaintiff’s subjective fear.” 

The policy thrust for the court in adopting a new tort of family violence is that it seeks to redress a longitudinal pattern of behavior over time in a familial environment as opposed to specific events of physical violence or discreet individual actions. In this regard the court states:

[E]xisting torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse.  These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the 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. For example, the tort of intentional infliction of emotional distress requires showing that a specific interaction or behaviour was “flagrant and outrageous” and resulted in injury. In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.

The Court does caution that the bar of proof is high and that an “unhappy or dysfunctional relationship” is not the basis for liability in tort.

Damages

The court reviewed the evidence adduced at trial and concluded that the wife made out her case in respect of each of the three alternate elements that the court posited as constitutive of the cause of action of family violence.  In so doing, the court awarded $50,000 as compensatory damages in relation to the wife’s mental disabilities (depression and anxiety) and loss of earning potential flowing from the husband’s treatment of her. 

In addition to the compensatory damages awarded, the court also awarded $50,000 in aggravated damages due to the overall pattern of coercion and breach of trust.  The husband preyed on her vulnerability and damaged the mental health of their children which in turn imposed greater burdens on her as mother in caring for the couple’s children.

Lastly, the wife was awarded $50,000 in punitive damages.  The court’s award of this sum was based on its conclusion that the husband had abused his wife for 16 years and made it virtually impossible for her to leave the relationship...   

Conclusion

This case is a significant one.  It seeks to create a holistic approach to identifying a cause of action which ascribes liability to a pattern of behavior within a relationship over a period of time as opposed to limiting liability to proven wrongs which are restricted to discreet transactional events like a specific event of violence or a specific threat.  The law should be, and has been increasingly open to recognizing the fact that the harms people suffer often come from the culmination of waves of injurious effects inflicted over time in particular relational situations, not just from single events.  This case goes far in advancing this trend.  

The awarding of both compensatory damages and aggravated damages are well reasoned.  On the awarding of punitive damages, the court did not go into a thorough application of the 11 factors to consider when determining to grant and measure punitive damages as set out in Whiten v. Pilot.  Consequently, though the award may be warranted, there is a vulnerability in the judgment in this regard.

This is because there are outstanding criminal charges against the husband which have yet to be adjudicated.  One of the important principles set out in Whiten is that punitive damages are meant to allow the community to denounce and punish the behavior of the wrongdoer.  To the extent other means are available to do that (denunciation and punishment) – like criminal law sanctions – those should apply and punitive damages in civil proceedings should be deferred.  

Regardless of whether this particular case is appealed or not; this is a compelling case with thoughtful and insightful reasons for judgment that will be applied elsewhere and result in the new tort of Family Violence to be considered atthe Supreme Court.  Stay tuned. 

Andrew J. Spurgeon is a partner at Ross and McBride LLP. He is also an Elected Bencher of the Law Society of Ontario, and the Chairman of the Board of Directors LawPRO, which is the sole insurance company providing primary liability coverage to all 28,000 lawyers in private practice in Ontario.
He can be reached at:
Ross & McBride LLP 
1 King St W, Hamilton, ON
L8P 1A4
Tel: 905-572-5810
Email: [email protected]