Ahluwalia v Ahluwalia : Putting a Cost on Family Violence in Divorce Proceedings
Content Warning: this article has some descriptions of violence and abuse that may be triggering to some readers*
Justice Mandhane of the Ontario Superior Court of Justice (“ONSC” ) has re-framed how family violence is addressed in divorce proceedings in the recent case of Ahluwalia v Ahluwalia, 2022 ONSC 1303 [Ahluwalia]. Previously, survivors of family violence or domestic abuse had limited redress through the tort of spousal battery or intentional infliction of emotional distress (Schuetze v Pyper, 2021 BCSC 2209; Saadati v Moorehead, 2017 SCC 28). As opposed to the tort of battery or intentional infliction of emotional distress—which focuses on compensation for specific events— the new tort of family violence would allow survivors to bring evidence of emotional abuse from throughout the course of their entire relationship in a divorce proceeding. This is a laudable advancement in the law, given it prevents approaches that focus on individual instances of abuse throughout the course of a relationship. Instead, this new tort would take into account the various ways in which relationships and personhood are affected by such atrocious conduct.
The Facts: A Relationship Defined by Coercion and Control
This case concerned the matrimonial matters of a divorced couple, Ms. Ahluwalia (“the Wife”) and Mr. Ahluwalia (“the Husband”). The former couple sought to sort out finances relating to the property, spousal and child support matters, and damages sought by the Wife against the Husband for the years of abuse she endured throughout their marriage (Ahluwalia, para 2). Throughout the proceedings, the Husband argued he was the family’s primary source of income, while the Wife took on caregiving responsibilities within the home (Ahluwalia, para 8). The couple had immigrated to Canada after the Husband decided he wanted to explore Canada’s economic opportunities (Ahluwalia, para 9). Both the Wife and the Husband were successful through the economic entry program (Ahluwalia, para 9).
The Wife’s interest in working in Canada was a point of contention between the parties. The Wife argued that the Husband had stifled her ability to seek out gainful employment, and was extremely aggressive in response to her attempts to gain independence (Ahluwalia, para 93). Aside from the Husband’s economic dominance, he would ignore the Wife for long periods and talk down to her in public with others present (Ahluwalia, para 93). When the couple had dinner parties, the Husband would not let the Wife mingle with the guests, and instead confined her to the kitchen (Ahluwalia, para 81). Aside from the mental and emotional abuse that the Wife endured, the Husband was physically abusive with the Wife on numerous occasions, at one point beating her “black and blue” and strangling her to “teach her a lesson” (Ahluwalia, para 97).
The Ruling: Compensatory, Aggregated, and Punitive Damages
Justice Mandhane awarded $150,000 to the Wife for “compensatory, aggregated and punitive damages for the tort of family violence.” (Ahluwalia, para 4). Justice Mandhane acknowledged that in a “typical” marriage, characterized by “economic interdependence and mutual support”, parties can rely on statute to divide and allocate resources (Aluwalia, para 4). However, Justice Mandhane found that the marital relationship between the Aluwalias was not typical. Over the 16 years the couple were together the Wife experienced “emotional, mental and psychological abuse coupled with an inherent breach of trust” (Ahluwalia, para 48).
Given the “coercion and control” the Wife experienced at the hands of the Husband, Justice Mandhane explained that spousal support was not an appropriate or adequate remedy for the harms the Wife experienced. Further, not only was spousal support not an appropriate remedy, it was also prohibited by the Divorce Act, RSC 1985, C.3 [Divorce Act]. Section 15.2(5) of the Divorce Act holds that in making an order for spousal support “the court shall not take into consideration any misconduct of a spouse in relation to the marriage.” As such, reparations for misconduct during the course of the relationship cannot be recovered in a spousal support order. Any remuneration for harm caused must have a source external to the Divorce Act. Justice Mandhane accepted the Wife’s argument that a tort of family violence was the proper means by which the Wife could be adequately compensated for the abuse she endured.
While the decision departs from the jurisprudence by allowing damages to be recovered from abuse suffered throughout the course of the relationship, the definition of family violence employed by Justice Mandhane is consistent with the definition found in the Divorce Act. Specifically, the Divorce Act contemplates financial and psychological abuse. Although the Divorce Act appears to be cognizant of the different ways that abuse can manifest in relationships, it does not provide any means of compensation for such harms (Ahluwalia, para 46). In response to this, Justice Mandhane wrote that, “allowing a family law litigant to pursue damages for family violence is a matter of access to justice” (Ahluwalia, para 47). To accept Justice Mandhane’s argument, improving access to justice in this context would mean that survivors of family violence would be able to seek damages following experiences of abuse over the entirety of their relationship.
Creating a New Tort
Trial judges have the scope to develop new torts where the matter is important enough to merit protection and the “development is necessary to stay abreast of social change” (Ahluwalia, para 50, quoting Merrifield v Canada (Attorney General), 2019 ONCA 205, para 10).
Although the tort of family violence is novel, it does not depart far from the language of Section 2 of the Divorce Act, which according to Justice Mandhane, defines family violence as 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” (Ahluwalia, para 52).
According to this definition of family violence, there are three means by which the plaintiff can argue they have experienced family violence. To be successful under the first option, the plaintiff must show that the violent or threatening conduct was “intentional” (Ahluwalia, para 53). Under the second option, it must be shown that the defendant family member was “calculated” in their coercive and controlling behaviour (Ahluwalia, para 53) While Justice Mandhane does not elaborate on the meaning of the terms “intentional” and “calculated”, a plain language reading leads one to believe that while the violent and threatening conduct needs to be instigated on purpose, the coercive and controlling behavior must be engaged in for the purpose of instilling fear in the plaintiff. The third option requires the plaintiff to show that the defendant acted with “substantial certainty” that the plaintiff would have a subjective fear that they themselves were at risk (Ahluwalia, para 53). All three options require proof that the defendant acted with an awareness of their actions.
Furthermore, for a tort of family violence to be established in a proceeding, Justice Mandhane wrote,
“The plaintiff will have to 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 physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or killing or harming an animal or property (Ahluwalia, para 55).
The focus on establishing a pattern of conduct within the analysis is critical, given the fact that repeated abusive conduct can affect survivors in discrete ways and different individuals have unique responses and coping mechanisms. Not only is this a step forward for family law courts, but for courts of all levels that oversee cases of domestic assault and sexual violence. Take, for example, criminal courts. While the jurisprudence is getting closer to adopting an understanding of sexual assault that operates independently of stereotypes of survivor behaviour, the emergence of the tort of family violence, which accounts for an all-inclusive view of the manifestation of such violence, indicates a recognition of the multifaceted nature and complexity of such cases. It is no longer sufficient to discount survivors’ accounts simply because their conduct does not support what is perceived as “reasonable.”
Justice Mandhane noted that a broad view and understanding of how family violence manifests prevents speculation “as to why a survivor of family violence would stay in an abusive relationship or fail to complain to the police” (Ahluwalia, para 63). These stereotypes have plagued the justice system for far too long. The creation of a tort which recognizes the multiplicity of ways in which family violence operates could contribute to dismantling stereotypical and outdated conceptions of survivor behaviour within familial relationships and in court proceedings. Moreover, judicial recognition of how family violence impacts individuals potentially represents a step forward in terms of helping survivors receive relief and assistance.
While financial compensation does not heal the wounds that family violence creates, it does have the potential to provide access to resources that could assist in the healing process. Put differently, when compensation is provided, the hope is that survivors will be in a better position to seek out counselling and other support systems. This is one of the ways in which Justice Mandhane hopes to improve access to justice within family law (Ahluwalia, para 66). Access to justice is often conceptualized as making the legal system more accessible through lower costs and simplified court proceedings. Justice Mandhane’s view of access to justice in this case embraces an approach that offers litigants redress in the form of having their voices heard on matters traditionally silenced or ignored.
An Unsurprising Decision?
While the decision to formulate a new tort of family violence is a surprising development, to those who are familiar with Justice Rena Mandhane’s human-rights oriented career, this decision is well aligned with the refreshing perspective that the justice’s appointment promised back in 2020.
Justice Mandhane was appointed to the court May 22, 2020 after leaving her position as Chief Commissioner of the Ontario Human Rights Commission [OHRC]. In a news release, the OHRC notes that “Under [Mandhane’s] leadership, the OHRC has played a pivotal role in addressing systemic discrimination against the most marginalized and vulnerable people in Ontario” (OHRC News). Prior to her appointment, Justice Mandhane was a criminal lawyer who “advocated for the rights of women as accused persons, complainants in sexual assault matters, and prisoners.” (Government of Canada, News Release). She also ran the University of Toronto’s International Human Rights program for five years.
All this to say, it is unsurprising that someone who has spent such a significant portion of their career advocating for the vulnerable would have a keen awareness on the law’s failure to protect and compensate survivors of family violence. This speaks to the importance of ensuring justices from a diverse array of backgrounds are accounted for on the judiciary so as to ensure as many perspectives as possible are acknowledged.
Looking forward, it will be interesting to see how other courts, including courts at the appellate level, interpret this decision. Until then, Justice Mandhane’s decision signals a strong message – the court is not blind to the inner workings of family violence, and perpetrators will be liable for their actions.