In Ahluwalia v. Ahluwalia, 2022 ONSC 1303, released Feb. 28, Justice Mandhane awarded the respondent mother, Kuldeep Kaur Ahluwalia, “$150,000 in compensatory, aggregated, and punitive damages for the tort of family violence.”
According to court documents, Amrit Pal Singh Ahluwalia, the applicant father, and Kuldeep were married in 1999 and separated in 2016. They had two children, both of which have “been estranged from the Father since 2017.”
Justice Mandhane acknowledged that awarding Kuldeep, who was self-represented at trial, “such a significant damage award is well-outside the normal boundaries of family law.”
“In the typical marriage, characterized by economic interdependence and mutual support, the family law statutory framework will be a complete code that allows for the fair, predictable, and efficient resolution of the parties’ financial issues post-separation,” she wrote, noting however that the marriage “was not typical: it was characterized by the Father’s abuse, and a sixteen-year pattern of coercion and control.”
“It was not just ‘unhappy’ or ‘dysfunctional’; it was violent. The family violence the Mother endured at the hands of the Father is not compensated through an award of spousal support,” she explained, adding that the Divorce Act “specifically prohibits me from considering ‘misconduct’ when making a spousal support award.”
“On the rare and unusual facts” before her, Justice Mandhane determined that “the Mother is entitled to a remedy in tort that properly accounts for the extreme breach of trust occasioned by the Father’s violence, and that brings some degree of personal accountability to his conduct.”
Court documents noted that in September 2021 “the Father was charged with the two counts of assault against the Mother, and one count of uttering threats to cause death.”
“Both charges relate to events during the marriage. The criminal charges are outstanding before the courts and did not factor into my analysis,” wrote Justice Mandhane.
The father commenced the application before the court in 2016 and sought “joint parental decision-making, weekend parenting time, sale of the matrimonial home, and property equalization.”
In response, the mother “sought sole decision-making authority, primary residency, child support, spousal support, and property equalization.” She “claimed that the Father was physically and mentally abusive throughout the marriage” and “recounted specific incidents of physical violence in 2000, 2008, and 2013, and an overall pattern of emotional abuse and financial control.”
“As the trial progressed,” Justice Mandhane wrote, “it became clear that the parties had fundamentally different views on the proper framing of the tortious conduct at issue.”
“For example, throughout his examinations and submissions, it was clear that the Father’s position was that the tortious conduct was limited to the three incidents of battery, and specific incidents of emotional abuse (i.e., threats, and the periods of alleged silent treatment),” she explained, noting that, on the other hand, “the Mother’s evidence and submissions made it clear that her view was that the tortious conduct was the family violence throughout the relationship, and that the specific incidents outlined in her pleadings were mere examples of a larger pattern of coercive and controlling behaviour.”
In her analysis of tortious conduct, Justice Mandhane noted that the father had “argued that it would be improper to consider the tort claim as part of the family law proceedings.”
According to court documents, the applicant argued that “there are real concerns that such claims will derail the trial process and make it more difficult for parties to co-parent into the future.”
The judge agreed that “the Divorce Act creates a complete statutory scheme when it comes to resolving financial issues post-separation, and that Court must be careful not to arm family law litigants to overly complicate the litigation through speculative and spurious tort claims.”
“However,” she added, “given the recent reforms to the Divorce Act, the Father’s concern is less persuasive because ‘family violence’ is already relevant to the issue of parenting,” she added.
“With 2021 reforms to the Divorce Act, Parliament has explicitly recognized the devastating, life-long impact of family violence on children and families,” Justice Mandhane explained, nothing that the Act “defines ‘family violence’ expansively to include conduct that goes beyond physical assaults …”
“Yet,” she found, “despite this statutory recognition within the Divorce Act, the legislation does not create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence.”
“At its heart, spousal support is compensatory rather than fault driven. As such, spousal support awards are not meant to censure particularly egregious conduct during the family relationship that calls out for aggravated or punitive damages,” the judge explained.
Justice Mandhane noted that s.15.2 of the Divorce Act “dictates the factors that I must consider when making a spousal support award, and ‘family violence’ is not one of them.”
“The legislation specifically dictates that I must not take into account ‘misconduct of any spouse in relation to the marriage’ when making a support order,” she added, writing that “[T]o the extent that abuse may be relevant to support, given its compensatory nature, the plaintiff establish that the harms that flowed from the abuse are directly relevant to the economic fallout of the marriage.”
The court noted that 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.”
“In unusual cases like this one, where there is a long-term pattern of violence, coercion, and control, only an award in tort can properly compensate for the true harms and financial barriers associated with family violence,” Justice Mandhane wrote, noting that the “no-fault nature of family law must give way where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support …”
The judge stressed that “[A]llowing a family law litigant to pursue damages for family violence is a matter of access to justice.”
“It is unrealistic to expect a survivor to file both family and civil claims to receive different forms of financial relief after the end of a violent relationship,” she added.
Considering the parties written submissions, Justice Mandhane wrote she was “prepared to recognize a common law tort of family violence.”
“I agree with the Mother that to properly understand her claims for compensatory and aggravated damages, the relevant factual context is the entire 16 year pattern of emotional, mental, and psychological abuse, coupled with an inherent breach of trust,” she explained.
Justice Mandhane explained that “[T]o define the modes of liability underlying the new tort of family violence, the proper starting point is the definition of ‘family violence’ found in s. 2 of the Divorce Act.”
“Based on this statutory definition, to establish liability on a civil standard, the plaintiff must establish: Conduct by a family member towards the plaintiff, within the context of a family relationship, that: 1. is violent or threatening, or 2. constitutes a pattern of coercive and controlling behaviour, or 3. causes the plaintiff to fear for their own safety or that of another person,” she wrote.
The judge noted that “[W]hile the tort of family violence will overlap with existing torts, there are unique elements that justify recognition of a unique cause of action.”
“I agree with the Mother 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 cases and which creates the conditions of fear and helplessness,” she wrote, emphasizing that 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,” she explained, noting, 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,” she stressed.
Justice Mandhane explained that to “establish ‘family violence,’ 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.”
“It will be insufficient to point to an unhappy or dysfunctional relationship as a basis for liability in tort,” she wrote, noting that the “focus must be on the family member’s specific conduct, which must be particularized using specific examples.”
The judge stressed that “[I]t will be insufficient and unfair for the plaintiff to simply rely on the pattern of conduct without pointing to any specific incidents.”
“From a fairness perspective, the tort claim cannot be a series of bald assertions. The defendant must know the case to meet. Therefore, the trial judge must be satisfied that the plaintiff’s pleadings are sufficiently detailed to allow the defendant to respond,” she determined, noting that “[O]nce liability, is proven, the nature of the family violence—circumstances, extent, duration, and specific harm—will all be factors relevant to assessing damages.”
“Aggravated damages may be awarded for betrayal of trust, breach of fiduciary duty, and relevant post-incident conduct. Punitive damage awards will generally be appropriate given the social harm associated with family violence,” she added.
With regards to recognizing a “new foundation for liability for family violence,” Justice Mandhane wrote she came to this conclusion “based on the existing case law related to spousal battery, explicit recognition of the harms associated with ‘family violence’ in the Divorce Act, recent provincial legislation that removes other legal barriers facing survivors leaving violent relationships, developments in the American caselaw, and Canada’s international law obligations related to women’s equality.”
The judge noted that the “problems associated with trying to frame cases involving long-term family violence into the rubric of existing intentional torts is most clearly demonstrated through the relative paucity of damage awards in spousal assault cases.”
She explained that the “most recent example in Ontario” is Montgomery v. Kenwell, 2017 ONSC 3107 where the court “awarded the mother $75,000 in damages for the ‘inter-spousal tort of assault.’ ”
“Most of the cases that pre-date Montgomery are out-of-step with the evolving social understanding about the true harms associated with family violence and therefore even less helpful on the issue of damages,” Justice Mandhane added, finding that the “nascent cases were generally preoccupied with quantification of the physical harms (i.e. bruises, fractures, lacerations, disabilities, etc.).”
“In my view, even with higher damage awards on the horizon, the analysis under the existing intentional torts creates a real risk that triers of fact will miss the relevant social context and engage in stereotypical reasoning about the proper comportment and behaviour of survivors when assessing credibility,” she highlighted, noting for example, “they might speculate as to why a survivor of family violence would stay in an abusive relationship or fail to complain to police.”
The judge emphasized that women “may not leave abusive relationships due to ‘environmental factors’ including a lack of job skills, the presence of children to care for and fear of retaliation.”
“Indeed, there were several stereotypes at play in the trial before me,” she wrote, noting that “[W]hen asked directly about the allegations of family violence, the Father immediately suggested that the Mother should not be believed because, ‘she was an educated person.’ ”
“I warned the Father’s counsel during her cross-examination of the Mother that it would be improper to suggest that the Mother could not be believed because she immigrated to Canada with the Father after the first incident of violence,” Justice Mandhane stressed.
The judge also determined that “recognizing the tort of family violence is consistent with the compensatory goals of tort law.”
“The harms associated with family violence include acute and chronic health issues (i.e., soft-tissue injuries, broken bones, chronic pain); mental, psychological, and social problems (i.e., low self-esteem, depression, anxiety, PTSD), underemployment and absenteeism, low career advancement, substance abuse, self-harm, suicidal ideation, death by suicide, and femicide,” she wrote, further noting that “[P]hysical and mental injuries, future case costs, and lost earning potential are regularly quantified in other civil law contexts.”
“An award of spousal support will be insufficient to compensate for the true harms and financial barriers associated with family violence,” she explained.
“Moreover,” Justice Mandhane added, “recognition of the tort of family violence is consistent with the overarching imperative to remove the economic barriers facing survivors that try to leave violent relationships and access justice.”
“At present, the negative financial and social impact of family violence is almost exclusively borne by the survivor,” she noted, emphasizing in her reasons that the “tort of family violence will give survivors an avenue to pursue both accountability and financial independence, albeit ex post facto, through a single, family law proceeding.”
“The promise of significant financial compensation could make it more realistic for some women to leave violent relationships,” she explained, noting that recognizing a tort of family violence is also “consistent with Canada’s international human rights obligations under the Convention on the Elimination of all Forms of Discrimination Against Women.”
“Finally,” she added, “recognizing a tort of family violence is consistent with the normative standard of personal responsibility in our society.”
The judge noted that “[W]hile family violence is a social issue, it is rooted in the actions of individuals. It is a matter of extreme power imbalance such that one party can exert physical, social, and psychological domination or control over another person.”
In making her determination, Justice Mandhane found that “[O]verall, the Mother was the more credible witness as it related to the allegations of family violence.”
The court found the father “committed the included tort of assault during the 2000, 2008, and 2013 incidents” as well as the tort of “intentional infliction of emotional distress insofar as his pattern of coercive and controlling behaviour was ‘flagrant and outrageous,’ calculated to produce harm, and resulted in the Mother’s depression and anxiety.”
“The Mother is entitled to damages of $150,000 in relation to the family violence she experienced during the marriage,” Justice Mandhane determined, noting that “[W]hile this damage award is high when compared to other cases involving ‘spousal assault,’ it reflects the overall pattern of coercion and control at play in family violence matters.”
The judge also awarded “$50,000 in compensatory damages in relation to the Mother’s ongoing mental health disabilities and lost earning potential.”
Justice Mandhane cautioned that her “compensatory damage award reflects” her “overriding obligation to ensure that the total financial compensation to the Mother is fair and proportional.”
“The tort award is designed to compensate for harms that flowed directly to the Mother from the Father’s family violence. It is not to be confused with spousal support that had a different purpose,” she explained.
The court found the mother was also “entitled to an additional $50,000 in aggravated damages due to the overall pattern of coercion and control and the clear breach of trust.”
“The Father preyed on the Mother’s vulnerability as a racialized, newcomer woman. He subjected her to cruel and demeaning behaviour. The Father’s post-separation conduct was egregious and left the Mother without funds to meet the Children’s daily needs,” wrote Justice Mandhane, accepting the mother’s evidence that “the impact on the Children’s long-term mental health has been severe which, in turn, has made their care more challenging and aggravated the Mother’s damages.”
“The Father’s refusal to pay adequate spousal support is consistent with his overall pattern of financial abuse,” she added.
“Finally, I am willing to award a total of $50,000 in punitive damages. The Father’s conduct calls for strong condemnation. He abused the Mother for 16 years and created a situation where it was practically impossible for the Mother to leave the relationship or pursue accountability,” determined the judge, noting she had “shown restraint” in the “punitive damage award because the Father is still facing outstanding criminal charges, is subject to ongoing bail conditions, and may face additional punitive sanctions.”
“Even if he is ultimately convicted of the criminal offences, it would not change my assessment of punitive damages,” she added.
Counsel for the applicant did not respond to request for comment before press time.
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