Prosecuting Civil Tort Claims In Context Of Family Proceedings Following Ahluwalia Appeal: Part Two
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.
Since the Ontario Court of Appeal decision in Ahluwalia v. Ahluwalia , 2023 ONCA 476, (Ahluwalia), in which the creation of a new tort of family violence was rejected as unnecessary because existing torts are sufficient, there has been some uncertainty about how civil claims arising from intimate partner violence (IPV) and abuse should be dealt with in the context of family law proceedings.
This is not the last word on the tort of family violence, as the Supreme Court of Canada has granted leave to appeal the Ontario Court of Appeal decision. Regardless of the final outcome in Ahluwalia, issues surrounding how to most effectively and efficiently prosecute civil tort claims in the context of family proceedings will remain a live issue.
In the recent decision of Barreto v. Salema, 2024 ONSC 4972 (Barreto), Justice Susan Vella of the Ontario Superior Court of Justice provides useful guidance and valuable insight into how these cases will be viewed and assessed by the Court, (see part one), where with respect to Barreto, we examine the factual background and preliminary considerations and framework, provide a liability analysis, and discuss damages. In part two, we offer more takeaways from this decision.
Other key takeaways
The following are other key takeaways from Justice Vella’s lengthy and comprehensive decision in Barreto:
1. The importance of expert evidence regarding harms to achieve higher general damages awards:
Although it is not necessary to lead expert evidence of a psychiatric disorder to prove psychological harm, expert evidence will make it much easier to establish a higher general damages award. Liesl Ana Barreto (the wife) called an expert psychologist to confirm her diagnosis of post-traumatic stress disorder (PTSD) because of the alleged intimate partner violence (IPV) and abuse by Savio Salema (the husband) and to provide his opinion that, in absence of other life-threatening events, this harm could only be attributable to the abusive conduct of the husband.
Justice Vella’s damages award in Barreto was $150,000, compared to the $100,000 award in Ahluwalia, which Justice Vella explains is distinguishable based on the fact that in Ahluwalia “no expert medical or psychological evidence was led to support the spouse’s claim for damages.”
2. Limitations Act defences can be overcome in the context of civil claims arising from IPV and abuse:
Claimants can rely on the discoverability principle for claims of intentional infliction of emotional distress and the exception in 16(1)(h.2) of the Limitations Act for claims relating to physical assault and battery, which states that there is no limitation period for assault claims if, at the time of the assault, the claimant and the person who committed the assault had “an intimate relationship.”
3. In order for any tort claim to be considered by the court, the torts themselves and their requisite elements must be pleaded:
Justice Vella declined to consider sexual assaults alleged by the wife at trial, as they were not referenced in her pleading. However, as the requisite elements of the torts of assault and battery were pleaded, an order was made replacing the initially pleaded non-existent tort of family violence, with the proper existing torts of assault and battery. (Barreto, para. 156)
Additional issues to consider:
Many family lawyers oppose or are critical of joining or hearing together civil tort claims for damages arising from IPV and abuse within family law proceedings. This is likely largely because the family law framework has much less arduous discovery obligations than civil proceedings and has systems in place to ensure that family law claims move forward as quickly as possible.
There is also a strong movement towards a more collaborative approach to family law claims. Civil claims, in contrast, which come with much broader documentary and oral discovery obligations imposed by the Rules of Civil Procedure, tend to move along more slowly and are often highly adversarial by nature.
In our experience so far working on cases where civil tort claims and family law issues are being joined or heard together, the advantages outweigh the disadvantages. The most significant benefit is the ability for civil damages to be paid out of the family property and assets. For example, in Barreto, Justice Vella ordered that the payment of damages would be deducted from the husband’s share of the net sale proceeds from the matrimonial home.
Typically, the biggest challenge when pursuing civil claims against individuals for torts arising out of IPV and abuse is that there is no easy way to satisfy a judgment for damages. Family court proceedings not only provide for disclosure of assets and property, something one is not entitled to in a civil court proceeding, but also a forum in which a set-off can take place to account for damages and prejudgment interest on these damages when tort claims are found to have merit.
An additional challenge to consider going forward is how to reconcile family law claims for spousal support with civil claims for income loss, as there is obvious overlap, and double recovery must be avoided. In Barreto, Justice Vella made it clear that the “income replacement component” of the wife’s claim was “adequately compensated by virtue of the spousal support claim awarded” (Barreto, para. 444).
What’s next?
Family and civil lawyers alike who act for survivors of IPV, as well as those who defend these claims, anxiously await the outcome of the appeal of Ahluwalia to the Supreme Court of Canada. Given that the Court has now set out in Barreto how to practically apply the existing torts to these cases, we expect that the Supreme Court will likely uphold the Ontario Court of Appeal’s decision to reverse the trial judge’s decision creating a new tort of family violence.
Regardless of whether the Supreme Court of Canada decides there is or is not a separate tort of family violence, lawyers and the courts need to be prepared to deal with the “epidemic” of IPV in our society. There is a need for informed discussion about the many legal issues that this problem presents, and we call for continuing legal education on the issues that bring together family and civil lawyers and judges, so these issues can be better and more efficiently and consistently navigated.
There is similarly an overlap between criminal and civil court proceedings when dealing with sexual and physical forms of abuse and harassment, which has already been extensively considered and addressed by courts and lawyers alike . Now it is time — if not overdue — for the same dialogue to take place between the family and civil bars and benches.
Authors’ notes: See part one of this two-part series for a refresher on the Ontario Court of Appeal decision ahead of next year’s Supreme Court of Canada hearing in Ahluwalia, tentatively set to be heard the week of Feb. 10, 2025.
Our civil sexual abuse and assault team frequently consults with and assists family lawyers and survivors of IPV in navigating civil tort claims arising from IPV and abuse in the context of family law proceedings. Please feel free to reach out for a consultation if you would like more information.
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