Why the Court of Appeal in Ahluwalia v. Ahluwalia did not do enough for victims of family violence

• by David Frenkel

Originally published in the OFLM 2023-8 edition


In the last 12 months there appears to be only one reported family law decision in Canada that awarded a family law litigant damages for violence inflicted on them during their relationship. In the last 30 years, there has been a paucity of successful Canadian cases. And in the hundred years or so prior to that, there appears to have been none or close to none.

Ahluwalia v. Ahluwalia (2023 ONCA 476) is that sole reported decision in the last year where damages were awarded to a victim of abuse in an intimate partner relationship.

The Court of Appeal rejected the tort of family violence and, in effect, lost an opportunity to remove some of the overwhelming barriers that have prevented victims of that violence from obtaining compensation for their abuses.



In the July 2023 Ahluwalia decision, the Court of Appeal held that the trial judge erred by creating a new tort of family violence. They found that the creation of a new tort was not required and that the facts of the case did not fall into any “gap in the law.”

The Court reasoned, in part, that “the existing tort of intentional infliction of emotional distress provides an adequate remedy.”

However, what the Court did not address was the striking contrast between the current statistics of intimate partner violence and the extremely low number of cases where victims were awarded damages for that violence.  

For example, in the last 30 years of reported family law decisions in Canada, there appears to be only a handful of cases where a spouse was awarded damages for a tort of assault or battery.

More specifically, when a search of “tort”, “violence” and “damages” is entered into Westlaw (as of August 10, 2023), Ahluwalia v. Ahluwalia (2022 ONCA 476) is the only reported case where a victim of family violence was awarded any damages in the last 12 months.

Using the same search terms and limiting the results to the “family” subject area, the results came back with only a handful of successful family violence damage awards.

Let us contrast the above results with the latest statistics.

According to Statistics Canada, 2021 marked the seventh consecutive year of a gradual increase in police-reported intimate partner violence. In 2021 alone, police reported 114,132 victims where violence was committed by current and former legally married spouses, common-law partners, dating partners and other intimate partners. Moreover, according to the 2019 General Social Survey on Canadians' Safety, only one in five victims of self-reported spousal violence reported the violence to police.

If the 2019 statistic is found to be consistent in 2021, then that could mean that the number of actual intimate partner violence victims is approximately 500,000 in Canada in one single year.

And since the last 12 months only produced one decision where a spouse was awarded damages for violence inflicted on them, perhaps the existing structure of torts may not be enough to help these victims, and the Court of Appeal could have done more.


A brief discussion on the Law of Torts and Damages

Before we look at historic and present-day jurisprudence relating to family violence, let us first define what a tort is and what damages are available when a tort is claimed.

Justice Himel in Segal v. Qu (2001 CarswellOnt 2304) provided a helpful summary with respect to the interplay between the law of tort and damages in the context of family law. She noted that “the essence of an action for tort is that there is an act committed by the defendant without just cause or excuse which has resulted in harm to the plaintiff”:

…The law of tort exists for the purpose of preventing men from hurting one another, whether in respect of their property, their persons, their reputations, or anything else which is theirs…. The purpose of damages is to provide compensation for the losses which have occurred.

To be successful in any civil action for an intentional tort, the plaintiff must demonstrate on a balance of probabilities that the defendant committed a civil wrong, that he intended to inflict such harm on the plaintiff and that he is responsible for the consequences which have flowed from the wrongful act. Linden, Canadian Tort Law, 6th ed. (emphasis added)

The categories of damages awarded in family law cases include general, special, aggravated and punitive. The lines between these categories at times overlap as shown in the case law below.

Damages are initially categorized as either special or general. Special damages generally compensate a plaintiff for pre-trial pecuniary (i.e. money) out-of-pocket or "positive" losses. In contrast, general damages compensate for "negative" losses, which can include both pecuniary and non-pecuniary losses (McIntyre v. Docherty, 2009 ONCA 448).

Aggravated damages are awarded due to the nature of the defendant's conduct. They are designed to compensate the plaintiff specifically for the "additional harm caused to the plaintiff's feelings by reprehensible or outrageous conduct on the part of the defendant" (McIntyre v. Grigg, 2006 CarswellOnt 6815).

Punitive damages are awarded to meet the objective of punishment, deterrence and denunciation of the defendant's conduct, and not to compensate the plaintiff (McIntyre v. Grigg, 2006 CarswellOnt 6815).

In the context of family law, Justice Pazaratz in Costantini v. Constantini (2013 ONSC 1626) summarized the principles of general and aggravated damages by listing a number of source cases:

  • Aggravated damages are not awarded in addition to general damages, but general damages are assessed by "taking into account any aggravating features of the case and to that extent increasing the amount awarded" (Norberg v. Wynrib, [1992] 2 S.C.R. 226 (S.C.C.)).


  • General non-pecuniary damage should be assessed after taking into account any aggravating features of the defendant's conduct. The court may separately identify the aggravated damages, however, in principle, they are not to be assessed separately.


  • The purpose of aggravated damages, in cases of intentional torts, is to compensate the plaintiff for humiliating, oppressive and malicious aspects of the defendant's conduct which aggravate the plaintiff's suffering.


  • The following are aggravating factors which should be taken into account to determine whether the non-pecuniary damages should be increased: humiliation, degradation, violence, oppression, inability to complain, reckless conduct which displays a disregard of the victim, and post-incident conduct which aggravates the harm to the victim (Weingerl v. Seo, 2005 CarswellOnt 2474 (Ont. C.A.) at paras. 69-70) (emphasis added).


  • The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution (Shaw v. Shaw, 2012 ONSC 590).

With respect to punitive damages, there are differing opinions in Canada on whether a prior criminal conviction limits the family court’s ability to also award damages which are punitive in nature.

For example, in Kooner v. Kooner (1989 CarswellBC 384 (BC County Court)), the wife was severely assaulted by the husband. Still, the court held that a defendant who has been prosecuted for an offence under criminal law should not have punitive damages awarded against him in a civil action arising from the criminal conduct. Even though the court’s hands were tied in not awarding punitive damages, they increased the general damages from $5,000 to $7,500, as aggravated damages were warranted.

In Graham v. Graham (1999 CarswellOnt 1653), Justice MacKenzie dealt with claims of domestic assault and had the following comments with respect to the punitive damages:

… Because the fundamental nature of punitive or exemplary damages is to punish, punitive or exemplary damages are not available where the defendant has been the subject of criminal proceedings and has been convicted therein. The punishment component is regarded as having been discharged by the operation of the conviction in a criminal proceeding. (emphasis added)

In contrast, Justice O’Connell wrote in Surgeoner v. Surgeoner (1993 CarswellOnt 4419) that

... I think it is necessary in this age of enlightenment in dealing with claims of this nature which are, in essence, abuse claims that an exception should be made allowing for an award of punitive damages just as it could be made if R.S. had not been convicted because the effect of such will be to deter this anti-social behaviour.

And, in S. (L.N.) v. K. (W.M.) (1999 ABQB 478), Perras J. noted that “a line of cases has developed where it has been held that domestic violence cases, at least, are an exception to the general rule.” Justice Perras referred to the Ontario Law Reform Commission Report, which recommended that awards for punitive damages should not be limited because the defendant had been convicted of the same acts which founded the civil claim. 

Finally, in the Ontario Superior Court decision of Wandich v. Viele (2002 CarswellOnt 6 (ONSC)), Justice Paisley wrote that it is open to the court to impose punitive damages in a civil proceeding on a party who has already been convicted and sentenced in a criminal proceeding for the same wrongdoing, just as it is open to the offender to protest his innocence in a civil proceeding after having pleaded guilty to that offence.


Legislative barriers to tort claims for family violence

Having reviewed the categories of damages that are potentially available to victims of domestic violence, let us now see how the courts actually awarded those damages in a historic context.

Unfortunately, the courts have not made it easy for victims (mainly women) to make successful claims for family violence.

The following are some noteworthy examples of reported cases in Canada over the last century where courts made findings of abuse. But, in each case, the courts did not award any monetary compensation to the victims for various reasons. 


In Perkins v. Perkins (1947 CarswellSask 21), the Saskatchewan Court of King’s Bench found that the husband assaulted and beat his wife until her face was bloody. Since “cruelty” was established, the “award” was that the wife was able to separate from the husband.


In Davis v. Davis (1963 CarswellSask 29), the Saskatchewan Court of Queen's Bench determined that the husband assaulted his wife from time to time throughout the marriage. But the court also found that having sexual intercourse after the date of the last assault constituted, on the wife’s part, forgiveness of the offences.

The court used these established facts of assault only to find that there was “cruelty” for the purpose of granting the wife separation.  Still, the court did not award any damages.


In Getson v. Getson (1970 CarswellNS 33), the Nova Scotia Supreme Court made the following findings:

 … husband threatened the wife with guns several times during cohabitation… On one occasion … the husband asked the wife to get a gun, when she brought it he asked for the bullets and when he received them he loaded the gun and said to his wife "Now I'm going to blow your guts all over the place just to see you scream. I want to see you suffer before you die." …

… On one occasion the husband took a knife from the kitchen counter, said to his wife that he was going to cut her throat, and as she protected herself, she was cut upon the arm. During the same incident the husband took the wife by the hair and some hair was removed by the roots. Following this incident she was not allowed out of the house for three weeks and was refused medical attention.

…The evidence establishes, also, several assaults by the husband upon the person of the wife. These were by choking, slapping, grabbing her by the throat, striking and knocking her down, or by pushing her against a wall. As a result of these attacks the wife bore bruises and marks attested to by other witnesses.  

Gillis J. found that since the wife returned to live with the husband, she condoned his cruelty.

This finding was disheartening, since the court also acknowledged that “…the economic situation of the parties was such as to make it difficult for the wife to withdraw from the matrimonial relationship as easily as some would do.”

Regrettably, there was no award for damages.


In the Ontario Supreme Court decision of Harmon v. Harmon (1980 CarswellOnt 2635), Master Cork held that the claim for general and special damages for personal injury should not be included in the divorce action.

Master Cork referred to the preamble of the Family Law Reform Act and reasoned that an

…attempt is being made by the court under the divorce petition, and the Family Law Reform Act for "the orderly and equitable settlement of the affairs of the spouses upon the breakdown in the partnership and to provide for other major obligations and family relationships, including the equitable sharing by parents of the responsibility for their children". This surely does not encompassed the concept of general and special damages for assault.  


In 1994, the New Brunswick Court of Queen’s Bench dismissed a wife’s claim for general damages and aggravated damages and/or punitive damages for assault and battery and the intentional infliction of mental suffering (Khoury v. Khoury, 1994 CarswellNB 224). The court reasoned that in New Brunswick, spousal immunity for torts committed during marriage was still the law of the province.

The above cases show how courts, throughout the years, were severely limited in their ability to help women abused during marriage. The limitation was not due to a lack of evidence of the abuse, but rather due to constraints within the legal frameworks at the time.  

It is reasonable to conclude that since 1867 until around 1990 (over 100 years), Canadian women did not receive a single award of damages due to violence inflicted on them during marriage. There may have been exceptions, but those would have been a rare occurrence indeed.


Courts of Justice Act - Seeking Leave

Currently in Ontario, when adding torts such as assault, battery and infliction of mental suffering as part of a family law claim, leave must be sought pursuant to section 21.9 of the Courts of Justice Act.

The reason is that such torts are not part of the Schedule found in section 21.8 of the Act which includes proceedings under the usual statutory provisions such as the Divorce Act, Family Law Act and the Children’s Law Reform Act, to name a few.

Also, leave “ought to be sought at the earliest possible date, so that the parties do not expend large sums of money preparing for trial of an issue that ultimately is not going to be considered in the proceeding at hand” (High v. Green, 2006 CarswellOnt 824, (Ont. S.C.)).

However, in McLean v. Danicic (2009 CarswellOnt 3289 (Ont. S.C.)), Justice Harvison Young appeared to have provided flexibility when leave was not sought at all:

More generally, s. 21.9 of the Courts of Justice Act, R.S.O. 1990, c. C.43, grants a Family Court jurisdiction, with leave of the judge, to hear and adjudicate upon related matters. Thus, though not pleaded explicitly, I can award damages under the tort of intentional infliction of mental suffering and emotional distress as was done in MacKay v. Buelow, [1995] O.J. No. 867 (Ont. Gen. Div.). Because the allegations of fact in the statement of claim provide the basis for finding the necessary elements of the tort, I can consider whether the tort was in fact made out even though the tort itself was not pleaded.

Therefore, at a minimum, the facts pertaining to the alleged torts may be sufficient, but only if included in the pleadings.

However, in G. (M.H.) v. B. (R.J.), (2021 ONSC 2467) MacLeod J. showed how victims of abuse will still have to walk a legislative tight rope even before being able to argue their substantive claims:

… It will be for the judge sitting in the Family Court or exercising jurisdiction under the Family Law Rules to give leave or not and to determine what procedural rules will apply to the portion of the case that is a tort action. In that case, it is not automatic that the civil rules will apply.

It is worth noting that a party with a legitimate tort claim against a spouse who fails to make such a claim at the time of the matrimonial litigation will likely be barred from doing so subsequently. The principles of res judicata, issue estoppel and finality operate to presume that parties coming to court with a dispute arising out of a particular set of facts have put all of the issues they intend to litigate before the court. A judgment will normally operate as a bar to a subsequent action based on the same facts. It is improper to launch a civil action over issues that have already been adjudicated in family court or which constitutes a collateral attack on the decision.

It follows that an applicant for divorce seeking to also pursue independent tort claims has two options. The applicant could graft tort claims onto the divorce action and seek leave to have them determined in the Family Court under the Family Law Rules. The applicant could instead start a separate tort action as was done here. In the former case, the applicant runs the risk that leave will not be granted. In the latter, the plaintiff runs the risk of two sets of costs if the action is unsuccessful and perhaps of being denied costs of one of the proceedings if the plaintiff is successful. In either case the court will ultimately have to grapple with joinder and how best to achieve a just result. In making that choice, the court will have to apply the principles of fairness, proportionality, and judicial efficiency. (emphasis added)

It is worth mentioning that in G. (M.H.) v. B. (R.J.), the wife had to defend a motion by the husband who was seeking to strike her separate tort claim related to the alleged abuse. Although the wife was ultimately successful in combining the claims, this extra step undoubtedly added procedural stress and complexity as well as diminished her financial resources due to the legal fees necessary for her to move her case forward.


A paucity of successful family law claims  

Once we move past the legislative hurdles (of the past and the present), we then have a number of reported cases starting in and around the 1990s where judges awarded damages to victims of family violence.

However, after an extensive review of the jurisprudence over the last 30 years, it appears that the number of successful family law claims are quite minuscule.

We can safely deduce that there are many individuals that are being abused by their partners on a yearly basis with only a fraction of them claiming those abuses in family law pleadings and even less of those receiving any sort of damage awards.

And of the following reported cases, it is interesting to note how many of them represent a decision where an award to the victim was actually commensurate with the level of abuse that was inflicted.   

  1. Surgeoner v. Surgeoner, 1993 CarswellOnt 4419 (Ont. Gen. Div.)
    1. Family violence
      1. The husband struck the wife in her groin after an argument.
      2. The husband also commented that the wife was lucky his back was sore otherwise he would have done a better job.
      3. The husband was convicted of the assault but was given a suspended sentence with one year of probation.
    2. Damages awarded
      1. $4,000 (general)
      2. $4,000 (punitive)


  1. Johal v. Johal,1996 CarswellOnt 397 (Ont. Gen. Div.)
    1. Family violence
      1. The wife’s life with her husband was fraught with continuous physical assaults of one kind or another on her. Especially in later years, this was accompanied by physical and emotional harassment which appears to reflect the authoritarian exercise of control by her husband and to a certain extent, by her husband's mother.
      2. On a number of occasions, the plaintiff hit the defendant with his fists, pulled her hair and banged her head against the wall.
    2. Damages awarded
      1. $4,000 (general damages for pain and suffering)
      2. $10,000 (punitive or exemplary damages)


  1. Valenti v. Valenti, 1996 CarswellOnt 514 (Ont. Gen. Div.)
    1. Family violence
      1. The husband punched his wife in the face and head area and forced her head into the walls of the hallway.
      2. The wife was kicked and forced to sit on the couch with instructions not to move.
      3. The husband struck his wife in the face as well as hitting her with the car phone. At one point she became terrified and attempted to leave the vehicle. At this point, the accused assumed control of the truck and, after driving around for a short period of time, returned to the residence.
      4. The wife’s face was bruised and swollen. Both of her eyes were swollen shut for a few days.
      5. She had a sore nose and a big bruise on the left, lower back near her hip.
      6. At the time of trial, the wife suffered from symptoms of post-traumatic stress disorder which were mild to moderate.
    2. Damages awarded
      1. $10,000 (general)
      2. $2,500 (aggravated)
      3. $2,500 (punitive)


  1. Kovacic v. Kovacic, 1998 CarswellBC 1603 (B.C S.C.)
    1. Family violence
      1. The husband struck wife in the face with his hand (several times as claimed by the wife).
      2. An x-ray disclosed "fractures crossing the nasal bones with moderate depression on the left side, and moderate displacement towards the midline."
      3. The wife claimed at the trial that she was still suffering the effects of the assault: that is, a periodic blockage in one nostril which interfered with her breathing, causing her headaches and depression or anxiety.
      4. The husband admitted to the offence and agreed to a six month no contact order and peace bond.
    2. Damages awarded
      1. $2,000 (general)
      2. $1,000 (aggravated)


  1. White v. White, 2003 BCSC 522 (B.C. S.C.)
    1. Family violence
      1. On two occasions the husband assaulted his wife, causing injuries.
      2. The second beating involved the husband dragging the wife by hair (bruising her legs and abdomen) and tearing loose two strands of hair. This left her with a bloody, exposed scalp in at least two places.
      3. The assault was described as savage and out of proportion to behaviour that preceded it.
      4. The wife claimed that she had emotional disorder as a result.
    2. Damages awarded
      1. $10,000 (Non-pecuniary general)


  1. Rezel v. Rezel, 2007 CarswellOnt 2313 (Ont. S.C.)
    1.  Family violence
      1. Early in their marriage, the husband would lose his temper, chase the wife, pull her hair, and slap or kick her.
      2. In one incident, the husband "socked" the wife in the mouth and left her with a black eye, with her having to miss work for several days.
      3. The second incident occurred in the presence of their pastor, who was at their home to provide marriage counselling. On that occasion the husband became enraged and threw a chair. As a result of the second incident the locks on the house were changed and the husband did not live in the home again.
    2. Damages awarded
      1. $7,500 (general)


  1. McLean v. Danicic, 2009 CarswellOnt 3289 (Ont. S.C.)
    1. Family violence
      1. The husband sent or caused to be sent a letter to the wife purportedly written by a girlfriend reporting his threat to personally put a bullet in her head.
      2. The husband sent or caused to be sent two packages containing intimate sexual photographs of the couple to the addresses of friends and relatives.
      3. The husband’s actions caused the wife much distress and suffering, resulting in her seeking medical attention and taking medication for anxiety related issues.
      4. The court found that the husband caused the wife to suffer acute anxiety, fearfulness and great distress.
      5. The wife continues to be fearful for herself and others, including her legal counsel, and her family.
    2. Damages awarded
      1. $15,000 (general – compensatory and aggravated)


  1. Van Dusen v. Van Dusen, 2010 ONSC 220
    1. Family violence
      1. The husband had tormented wife throughout the marriage (including in front of their children).
      2. The assault caused physical injuries; bruising which resolved in approximately two weeks; and emotional upset.
      3. The husband had demeaned the wife in front of their children, and he struck a child who tried to intervene.
      4. The husband was charged.
    2. Damages awarded
      1. $15,000 (general)


  1. G. (D.) v. M. (R.), 2012 SKQB 296
    1. Family violence
      1. The husband called wife degrading names.
      2. The husband told her that she had been a bad wife to him and had denied him the kind of sex that he had wanted for the last nine years of their relationship.
      3. He then said words to the effect that he was going to get the sex that he had been denied and began choking her, forced her to take off her clothes, and began what turned out to be a two to three hour torture that included sexual and physical assaults and threats of violence against her, their child and members of the wife's family.
      4. The husband repeatedly struck and hit her.
    2. Damages awarded
      1. $25,000 (general)


  1. Holden v. Gagne, 2013 ONSC 1423
    1. Family violence
      1. There were a number of incidents of battery, being the slap on the wedding night in 1990, the 'head-butt' in 2001, and the assault in 2003.
      2. For the 2003 assault, the wife had physical injury, namely bruising. 
      3. The wife incurred humiliating and oppressive conduct associated with all three incidents.
    2. Damages awarded
      1. $1,000 (general) 


  1. Costantini v. Constantini, 2013 ONSC 1626
    1. Family violence
      1. After the parties separated, the husband engaged in a terrifying, aggressive application of force which included grabbing, squeezing by the neck, pulling away from a door, banging the wife’s head against a wall, and then slamming her face against a ceramic floor.
      2. The husband took advantage of his physical superiority. He took advantage of the wife’s vulnerability. He violated her right to a sense of safety, while asleep in her own home, in the middle of the night.
      3. The husband tormented the wife with threats and degrading insults.
      4. The wife suffered painful injuries. 
      5. The wife has suffered pervasive and continuing emotional upset as a result of the husband’s intentionally hurtful behaviour.
      6. The wife’s stress has been compounded by dealing with the fallout on her teenage daughter, also a victim of the husband’s abuse.
    2. Damages awarded
      1. $15,000 (general)


  1. Sorrenti v. Blair, 2013 ONSC 2584
    1. Family violence
      1. The husband assaulted the wife, fracturing her right arm, leaving her with persisting physical limitations. The assault was the last in a history of physical and verbal abuse that spanned ten years.
      2. The husband was charged and convicted of assault.
      3. The husband was also in breach of his non-association court orders, causing the wife to fear for her safety.
    2. Damages awarded
      1. $75,000 (general)
    3. Additional notes
      1. The award took into account the serious orthopedic injury and the aggravating factors.
      2. The court considered awarding punitive damages, but did not do so due to not knowing the details of the husband’s sentencing and thereby not being able to “assess proportionality.”


  1. Schuetze v. Pyper, 2021 BCSC 2209
    1. Family violence
      1. The husband physically abused the wife on several occasions.
      2. The wife suffered a concussion as a result of the husband’s blows.
      3. The wife suffered significant psychological injuries.
    2. Damages awarded
      1. $100,000 (non-pecuniary damages)
    3. Additional notes
      1. The wife also received $22k for the cost of future care, $239k for past loss of income, $425k for future loss of income and $8k in special damages.


Of the above examples, a fair number of them show that the monetary damages awarded do not appear to reflect the severity of the violence inflicted, especially taking into account the years of abuse. And if one also considers the abuser’s ability to pay (e.g. someone with significant wealth), an award of a few thousand dollars may seem like a slap on the wrist rather than a meaningful deterrent.

Moreover, even if one argues that the amount of damages awarded in most cases is sufficient, the question still remains, why is there such a low number of reported cases in the first place?

Justice Pazaratz in Constantini v. Constantini (2013 ONSC 1626) offered an explanation. He noted that “only a tiny fraction of potential tort claims are ever advanced” and provided reasons why:

a. Many litigants may be unaware the tort option exists.

b. Family law lawyers tend to be more attuned to dealing with claims based on statute rather than tort.

c. Some lawyers and clients may be reluctant to pursue such a claim fearing it will aggravate an already difficult situation.

d. Family finances are often so limited, there's little point in adding yet another potential monetary claim to the mix.

e. There may even be systemic discouragement. Over the years our family court system has worked hard to get away from blame and recrimination — by discouraging "inflammatory" affidavits in favour of case management; by telling conflicted parents to focus more on the future than the past; by promoting conciliation and collaborative dispute resolution; by granting "no fault" divorces. We may have promoted a misconception: that fault never matters.  

Even if a victim perseveres through the above psychological, practical and financial barriers, they still need to successfully argue their claims before a judge. But judges have their own limitations, as was explained by Justice Zarzeczny in G. (D.) v. M. (R.) (2012 SKQB 296). In that decision, Zarzeczny J. wrote that determining the appropriate level of damages “is very much complicated when the case involves domestic violence between spouses or physical and sexual assaults by persons in a fiduciary relationship to the victim.” In such cases “the emotional and psychological impact are exacerbated by the nature, and often loss, of the relationship.”

In other words, legitimate victims of family violence have had and continue to have challenge after challenge in receiving an award that compensates for the pain, humiliation and suffering that they endured.


Are the existing civil torts enough to help victims of family violence?  

Based on the historic backdrop and insignificant number of successful damage claims, it is hard to see how the Canadian legal system is showing their abhorrence to family violence. Victims are not receiving justice, especially when one combines the troubling statistics on family violence with the underrepresentation of family law decisions vis-à-vis those statistics.

Still, the Court of Appeal in Ahluwalia held that family courts should continue using the existing torts to address their claimed damages.

However, these torts have been around for over thirty years and yet, despite the law’s increased acknowledgement of the impact of family violence, the level of successful claims in family courts does not appear to be increasing.  If anything, the numbers are flatlining near zero.  

The following are some reasons why the existing civil torts may not be enough.


  1.       Intimate partners have many ties that bind them

The existing civil tort cases are not exclusive to intimate partner relationships and thus do not make the best examples to be used as precedent.

Unlike a relationship with strangers, intimate partners can find it very difficult to leave their spouse. The parties are often connected financially and emotionally, and even more so with the birth of children. Leaving the marriage may not even be a viable option for many spouses, especially if they are vulnerable and financially dependent.  

As Justice Fleming took judicial notice of in Schuetze v. Pyper (2021 BCSC 2209), “..victims of intimate partner violence often leave and return to the relationship many times.”

In Schuetze, the court inferred many factors which likely contributed to the wife’s willingness to remain in her marriage, among them the psychological and emotional impact of an abusive and controlling relationship, isolation, her view that an intact family was best for the children and the absence of immediate family support.

Arguably, having to parachute in the existing civil torts and their related precedents would detract from being able to adequately focus on the unique nature and the plethora of factors specific to family violence claims.  


  1.       Evidence from intimate partners is unique and requires a sensitive lens

Family law professionals may need to treat the evidence from victims of intimate partner violence differently from evidence from victims of regular violence and with a more sensitive lens.

For example, Justice Chappel in S.V.G. v. V.G. (2023 ONSC 3206) pointed out that assessing credibility in family violence allegations is challenging as it requires an appreciation of the overall context within which the violence occurs.

Chappel J. noted:

…This context includes the typical dynamics of violent relationships between family members, the impact of violence on the victims and their ability to disclose the violence, and other social, spiritual, economic and cultural considerations that may be preventing the victim from talking about the violence. Having regard for the complex social dynamics around family violence, the courts must resist assessing a claimant's credibility against stereotypical notions of what a victim should have done in similar circumstances. The reason for this is that trauma can significantly affect a victim's cognitive functioning and physiology in many ways, and therefore victims of family violence may not react or interact in ways that one may generally expect them to

The social context considerations around family violence are such that the typical indicators of credibility in the litigation arena are unhelpful in some situations and may in fact lead to distorted and dangerous outcomes. For example, one traditional yardstick for assessing credibility is whether the witness can provide a clear, detailed and consistent version of the events in question, with a solid recollection of the chronology of those events. However, victims of family violence often suffer from significant trauma associated with the abuse, which may affect their ability to provide a detailed, consistent and accurate recollection and timeline of the events in question … In addition, as the Supreme Court of Canada emphasized in Barendregt , "family violence often takes place behind closed doors, and may lack corroborating evidence" … Furthermore, there may not be evidence of prior consistent disclosures of family violence to rebut claims of recent fabrication, as there are many reasons why victims of family violence may not disclose the violence … (emphasis added)

Consequently, using the existing torts would inevitably retract back to the use of the usual rules of evidence for those types of cases.

Instead, family violence cases may require the evidence to be viewed more carefully using a more sensitive lens while taking into account circumstances unique to the relationship itself.


  1.       Aggravating factors may be insufficient

In Ahluwalia, the Court of Appeal wrote that no jurisprudence was cited to support the trial judge’s concern that existing torts are too narrowly focused to capture the dynamics in a relationship involving the pattern of tortious conduct inherent in intimate partner violence.

The Court of Appeal also noted that courts have “long recognized that patterns of physical and emotional abuse constitute tortious behaviour.” To buttress that claim, the Court provided examples of cases in the past that have had aggravated damages added to reflect the unique nature of family violence.

In theory, aggravated damages may seem like a way to catch the remaining more subtle forms of abuse found family violence claims; but, in practice the cases do not appear to reflect that potential, both in form and content.

For example, from the 13 cases listed above, the aggravated component of the general damages was not clearly defined. In other words, it was not evident how much of the total award represented the aggravated portion and thus not making for very helpful precedents.

And of the seven cases that were listed in the Ahluwalia decision to show aggravated awards, six were before the year 2000. Of the six, (a) MacKay v. Buelow was not a case of coercive control but rather dealt with harassment occurring after the parties separated; (b) in Valenti v. Valenti, the section which dealt with aggravated damages did not specifically refer to the historic violence, and only focused on the circumstances immediately preceding the assault; and (c) in Dhaliwal v. Dhaliwal, the court did not address the pattern of abuse as the specific reason in awarding the aggravated damages.

With respect to the other cases that were listed in Ahluwalia, (a) Calin v. Calin was a case about parent abusing a child; (b) Jane Doe 72511 v. Morgan involved a relationship of only six months and aggravated damages arose from the boyfriend posting nude videos of this girlfriend; (c) in Farkas v. Kovac, the aggravating factors were also specific to the incidents of abuse and not relating to coercive control or a pattern of abuse; (d) in Van Dusen v. Van Dusen, the court did not indicate how the specific pattern of abuse added to the aggravated component of the damages; and (e) in McLean v. Danicic, the court did refer to coercion, however it was not in relation to the marriage itself, but rather the husband’s litigation behaviour that occurred after the parties separated.

Overall, the cases cited in Ahluwalia do not clearly show how the pattern of abuse and coercive control relate to the amount of aggravated damages awarded. This is not surprising, as coercive control has been referred to as a “serious harm that is not easily quantifiable and cannot be addressed by existing common law tort claims.” 

Further, a domestic violence victim’s most significant harm “results from the effects of frequent and recurrent low-level violence inflicted on her as part of the abuser’s efforts to maintain control” (Domestic Violence Torts, Righting a Civil Wrong, Camille Carey, 62 Kansas Law Review 695 (2014)).

The Court of Appeal also mentioned that existing torts are flexible enough to address the fact that abuse has many forms, and trial judges should be alive to the family violence dynamics.

And yet, the insignificant number of reported cases should not give us comfort that the legal system as a whole is exemplifying this flexibility and appreciation. Furthermore, being alive to the dynamics of violence does not necessarily equate to an adequate or even the correct judgment for the victim. Historic Canadian jurisprudence has shown that judges have been alive to the dynamics of violence for over a century but were also shackled in their ability to provide any meaningful compensation.




Arguably, victims of family violence need an easier way to achieve justice.

The proposal by the Court of Appeal in Ahluwalia does not appear to achieve that justice in light of the historic and current status quo vis-à-vis the paucity of successful tort claims in family courts.

Perhaps this is one of those times where the floodgates need to be opened. Otherwise, the dam of victims’ pent-up pain and suffering will continue to swell while the perpetrators of those crimes are able to leave the relationship with relative impunity.

Perhaps it is time to worry less about possible litigants making illegitimate claims and worry more about the victims that are afraid to bring forth their claims due to overwhelming legal and practical barriers.

Proposing a perfect legal solution is not the immediate goal. Rather, any alternative that moves the status quo in a positive direction should be implemented without any further delay.

One proposal may in fact be to simplify the process with the introduction of the tort of family violence. Unlike what was proposed by the Respondent in Ahluwalia, such a tort should still maintain the necessity of having to prove the harm committed on a balance of probabilities. In fact, Justice Mandhane was able to accomplish the finding of the family violence without having to lower the necessity of proof.

Such a unified tort can still include the enumerated torts existing today, but with a more effective way to cumulatively assess the unique traits of violence claims in the context of intimate relationships.

Those unique traits include various forms and degrees of dependencies, breach of trust, vulnerability, coercive control (psychological, emotional, sexual), strategies of intimidation, isolation, humiliation, patterns of abuse, victims returning back to the abuser, the effects of violence on children, and trauma existing after the relationship.

For example, there do not appear to be any cases in Canada where family judges have considered violence occurring in front of a child as an aggravating factor to damages. The same applies to most of the other traits listed above with only minor exceptions.

Attempting to fit some of these factors into the existing tort of intentional infliction of emotional distress is also not the answer. In fact, it would be counterproductive. Victims would find it almost impossible to prove the more subtle incidents of abuse and control as the threshold for that tort appears to be too blunt of an instrument. As Justice Perkins pointed out in Fein v. Fein (2001 CarswellOnt 4150 (Ont. S.C.),

The requirement in the cases is not mere distress, but rather a recognized psychiatric disorder. Further, the defendants must have engaged in "extreme", "flagrant" or "outrageous" conduct calculated or intended to produce that kind of harm.

Limiting certain claims to such a narrow tort would also add further complexity to the claim process by adding yet another disjointed tort to satisfy and thus increasing the barriers for victims to achieve justice.

Most strikingly, the tort of intentional infliction of emotional distress was introduced in 1995 by the case of MacKay v. Buelow (1995 CarswellOnt 89 (Ont. Gen. Div.)). But other than the trial decision of Ahluwalia, there does not appear to be a single case, with possible exceptions, where a spouse was awarded damages for family violence using that tort.

In contrast, some states in the U.S. have recognized domestic violence as a unified tort. California is one example. In the California Civil Code, Section 1708.6 states:

(a) A person is liable for the tort of domestic violence if the plaintiff proves both of the following elements:

(1) The infliction of injury upon the plaintiff resulting from abuse, as defined in subdivision (a) of Section 13700 of the Penal Code.

(2) The abuse was committed by the defendant, a person having a relationship with the plaintiff as defined in subdivision (b) of Section 13700 of the Penal Code.

(b) A person who commits an act of domestic violence upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages pursuant to Section 3294.

(c) The court, in an action pursuant to this section, may grant to a prevailing plaintiff equitable relief, an injunction, costs, and any other relief that the court deems proper, including reasonable attorney’s fees.

(d) The rights and remedies provided in this section are in addition to any other rights and remedies provided by law.

(e) The time for commencement of an action under this section is governed by Section 340.15 of the Code of Civil Procedure.

With the California legislature’s attempt to enhance the civil remedies available to them, it recognized that acts of domestic violence “merit special consideration as torts, because the elements of trust, physical proximity, and emotional intimacy necessary to domestic relationship in a healthy society makes participants in those relationships particularly vulnerable to physical attack by their partners” (Domestic Violence Torts, Righting a Civil Wrong, Camille Carey, 62 Kansas Law Review 695 (2014)).

Therefore, it does not seem to be that much of a stretch to amalgamate the existing torts into one comprehensive family violence tort, whether through legislation or by courts themselves.

Such a direction by the courts would provide credence to family law victims of violence in a way that has not been shown before.

Such a tort would better combine the seemingly disjointed factors that exemplify the victim’s unique relationship with their abuser along with the abuses themselves.  The existing torts do not appear to accomplish this unification.

Combining these abuse factors into a unified tort would then indicate to Canadian society that family courts are treating family violence tort claims with the severity, consistency and immediacy that they deserve.

Introducing a family violence tort may not be the complete answer, but it could add clarity and predictability and at least move the needle of justice forward in a meaningful way. Victims of family violence deserve at least that much.