LAWYER INSIGHTS

Our sexual assault and abuse lawyers share their insights to help you move forward.

For Lawyers Erika Tower & Madeleine Cleland For Lawyers Erika Tower & Madeleine Cleland

Prosecuting Civil Tort Claims In Context Of Family Proceedings Following Ahluwalia Appeal: Part Two

Courts are recognizing psychological harm caused by intimate partner violence in civil tort claims. Erika Tower & Madeleine Cleland discuss how to limit effects of trauma & myths around IPV on credibility of survivors in family law trials, in part two of their @Law360Ca series.

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.


Contact Lerners Today

Lerners understands you need someone to believe in you. Our consultations are free. Call today, and let us help you and your family.

877.287.8784 | 416.867.3076 | survivors@lerners.ca


Read More
For Lawyers Erika Tower & Madeleine Cleland For Lawyers Erika Tower & Madeleine Cleland

Prosecuting civil tort claims in context of family proceedings following Ahluwalia appeal

Courts are recognizing psychological harm caused by intimate partner violence in civil tort claims. Erika Tower & Madeleine Cleland discuss how to limit effects of trauma & myths around IPV on credibility of survivors in family law trials, in part one of their @Law360Ca series.

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. As the Ontario Court of Appeal stated in paragraph 1 of Ahluwalia:

“Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.”

It is clear, based on the pervasiveness of IPV and the developing law in response, that we will continue to see an increase in the number of civil tort claims being pursued by survivors of IPV, particularly once the relationship ends and family law proceedings are initiated.

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 on how these cases should be approached and valuable insight into how they will be viewed and assessed by the court.

Factual background in Barreto

Liesl Ana Barreto (the wife) and Savio Salema (the husband) were married in 2003 and separated in 2020, with no children of the marriage. A nine-day hybrid trial of the family law and tort matters proceeded before Justice Vella in January and February 2024. The family law issues to be decided included divorce, spousal support, and disposition of the matrimonial home. Also at issue were tort claims raised by the wife, which included intentional infliction of emotional distress, breach of public disclosure of private facts and confidence, and assault and battery.

The term “gaslighting” was used by the wife to describe the husband’s pattern of behaviour, which included secretly communicating to her family in India that she was violent, abusive, mentally ill, and suicidal. The husband also had a pattern of telling the wife that she was the one who abused him, and that he used force against her only to protect himself from her physical abuse of him and to stop her from self-harming. Justice Vella adopted the “gaslighting” terminology as a descriptive term only.

Preliminary considerations and framework

In setting out the framework for her decision, Justice Vella confirmed, as in Ahluwalia, that where family and civil proceedings are heard together, the trial judge should start with a determination of the financial claims arising from the marriage, specifically beginning with any of those arising from statute, before assessing damages for the tort claims. This sequence considers that statutory entitlements may inform the damages arising from the IPV-related tort damages assessment.

Justice Vella accordingly began by considering the family law claims raised by both the wife and the husband, the findings of which are largely irrelevant to the purpose of this article. Turning next to the civil claims, Justice Vella first provided guidance on how to approach credibility assessments in claims involving IPV and then addressed a number of dangerous myths about IPV that must be dispelled.

Regarding the credibility assessment, Justice Vella adopted “the framework outlined in Faryna v. Chorny, [1952] 2 D.L.R. 354 ... and developed in subsequent cases, recognizing that trauma can impact one’s ability to recount the traumatic incidents” (Barreto, para. 161). Justice Vella also highlighted the importance of corroborating evidence from witnesses and contemporaneous documentary evidence.

The myths about IPV that Justice Vella said must be dispelled include:

1. the partner did not leave the relationship until now and, therefore, there was no abuse or mistreatment;

2. the partner must have consented to the offensive treatment because she/he/they did not leave the intimate relationship;

3. the partner did not complain to anyone in authority, his/her/their family, or others of the offensive treatment or abuse and, therefore, it did not happen; and

4. the partner did not behave in a certain manner in response to the alleged abuse or mistreatment and therefore cannot be believed. (Barreto, para. 166)

Liability analysis

With these considerations in mind, Justice Vella assessed the evidence presented by both sides and found the wife’s version of events to be more believable than the husband’s. The wife called witnesses who corroborated her version of events (family members, friends, therapist) and produced contemporaneous documentary evidence to support her claims (texts, emails, etc.).

The trial judge did not find the husband to be a credible or believable witness — his versions of events were vague and inconsistent. The trial judge also drew an adverse inference against the husband because he failed to call numerous witnesses whom he claimed supported his version of events and his defence of the wife’s claims.

Ultimately, Justice Vella found that the wife satisfied the elements of the tort of assault, battery, and intentional infliction of emotional distress. However, her claim for public disclosure of private facts was dismissed because the allegations under this tort were better addressed by intentional infliction of emotional distress.

Damages

Justice Vella began her damages assessment by reviewing the function of general and aggravated damages and the factors to be considered in determining the appropriate quantum. (Barreto, paras. 432–434)

It is acknowledged that damages arising from claims of IPV have been historically low, but “the courts’ recognition of the insidious harms by IPV is evolving much like it did with respect to civil sexual assault claims, which were originally very modest but have evolved considerably” (Barreto, paras. 436–437). Accordingly, Justice Vella stated that reference to civil sexual assault damages awards is helpful as a guide because in both types of cases, “the dominant harms experienced generally tend to be psychological and accompanied by a betrayal of trust” (Barreto, para. 440).

Justice Vella cited the range of non-pecuniary/general damages for adult-on-adult sexual assault set out in Zando v. Ali, 2018 ONCA 680 of $144,000 to $290,000 in 2017 dollars, “which provides a useful general framework for how to assess psychological impacts committed within a betrayal of trust.” (Barreto, paras. 440–441) With inflation adjusted for 2024 dollars, the range is $177,357.80 to $357,178.90.

Applying this range to the case at bar, Justice Vella concluded the appropriate general damages award in the case before her was $150,000, $50,000 of which she attributed to aggravated damages in recognizing the “pattern of psychological manipulation perpetrated over a lengthy time by a spouse resulting in a profound betrayal of trust” (Barreto, para. 448).

Also of note is the finding that, although the wife admitted to abuse by her mother in childhood, the wife “showed her resilience to any adverse impacts that mistreatment may have had by excelling in university and her job as a psychologist prior to her marriage” (Barreto, para. 429). In terms of damages causation, Justice Vella found that the harms established by the wife were solely the result of the husband’s abusive conduct.

A punitive damages award was made against the husband in the amount of $10,000, having regard to “the compensation awarded, the reprehensible nature of the misconduct perpetrated, the prevalence of IPV […], the lack of remorse, and the means of Mr. Salema” (Barreto, para. 452). Notably, this award for punitive damages incorporates the principle of deterrence by accounting for the “prevalence of IPV” in general.

We note that in Zunnurain v. Chowdhury, 2024 ONSC 5552, another decision involving civil tort claims in the context of family law proceedings that was released shortly after Barreto, Justice Ranjan Agarwal awarded $200,000 in damages to the wife for assault, battery, and intentional infliction of mental suffering, $175,000 of which was for compensatory and aggravated damages and $25,000 for punitive damages. This award is in line with Justice Vella’s comments about the appropriate range of damages in these cases.

This is part one of a two-part series. Part two will discuss other key takeaways of Barreto v. Salema.


Contact Lerners Today

Lerners understands you need someone to believe in you. Our consultations are free. Call today, and let us help you and your family.

877.287.8784 | 416.867.3076 | survivors@lerners.ca


Read More
For Lawyers Zahra Vaid & Erika Tower For Lawyers Zahra Vaid & Erika Tower

BC Court Determines School Board Not Vicariously Liable For Off-School Sexual Abuse

In Ontario, vicarious liability has been found to attach to a school board for the wrongful conduct of its staff, even where it occurred off of school premises.

In Ontario, vicarious liability has been found to attach to a school board for the wrongful conduct of its staff, even where it occurred off of school premises. The leading case C.O. v. Williamson 2020 ONSC 3874, involved a plaintiff (represented by Elizabeth Grace of Lerners LLP) who was sexually abused by her high school music teacher and band leader, Royce Williamson, primarily while driving her to and from band related events in his personal vehicle. In this seminal case, Justice Salmers held that the school board was vicariously liable for Mr. Williamson’s misconduct as it was strongly connected with his employment with the school board, which employment materially and significantly increased the risk of harm to the plaintiff.

The outcome in the recent Supreme Court of British Columbia decision, HN v School District No. 61, 2024 BCSC 128, clarified that institutions may not be vicariously liable for misconduct occurring off its premises, depending on the particular circumstances. In this case, the plaintiff brought an action against his private tutor, Gary Redgate, who sexually abused him when he was 11 years old, as well as against the school district which had recommended Mr. Redgate to the plaintiff’s parents and allowed him to meet with the plaintiff on its school premises. Initially the tutoring sessions were held in an empty classroom, but eventually Mr. Redgate began inviting the plaintiff to his home for tutoring, and unrelated activities such as watching movies, playing cards and working on home projects. The visits to his home were agreed to and arranged by the plaintiff’s parents. There were no allegations of any significant inappropriate behaviour occurring at the school, but the plaintiff described Mr. Redgate’s sexualized advances as intensifying incrementally during his visits to Mr. Redgate’s home, which continued until the plaintiff was 15 or 16.

Mr. Redgate died during the legal proceeding, and the Court ultimately determined that his Estate was liable for the sexual abuse he committed against the plaintiff. However, the Court determined that the school district should not be held liable for the misconduct of Mr. Redgate that occurred off its premises.

In assessing the vicarious liability of the school district, the Court in HN v School District No. 61 applied the “strong connection test” set out in the Supreme Court of Canada’s decisions in Bazley v. Curry, [1999] 3 S.C.R. 6 and Jacobi v. Griffiths, [1992] 2 S.C.R. 570. The Court emphasized there needed to be a strong connection between the actual duties imposed by the school district and the abusive conduct of Mr. Redgate, and it failed to find that a sufficiently strong connection existed between what the school was asking Mr. Redgate to do and Mr. Redgate’s wrongful acts. Further, the Court pointed out that the plaintiff’s parents did not rely on the school district when making arrangements for their son to meet with Mr. Redgate, and never had any concerns about their son’s visits to Mr. Redgate’s home.

The Court specifically referred to C.O. v. Williamson, stating that it is distinguishable because in that case, the teacher Mr. Williamson was found to have power over the plaintiff which was conferred on him by the school board due to the school’s approval of his role and associated activities (including leading band trips and transporting students home from school and school-related activities). In imposing vicarious liability on Mr. Williamson’s school board employer, the trial judge in C.O. v. Williamson did not differentiate between the abuse Mr. Williamson committed on and off of school premises, nor suggest that drives home after a school field trip or after a band rehearsal (when he assaulted the plaintiff) were unrelated to his job as a teacher. In short, relying on the Supreme Court of Canada’s requirement for a strong connection between the misconduct and the tasks assigned to the wrongdoer, the judge found all of the abuse Mr. Williamson perpetrated against the plaintiff was connected with his job as a teacher and band leader.

The B.C. decision in HN v School District No. 61 should be understood on its unique and narrow facts — sexual assault of a student by a private tutor (not an employee of the school district) which occurred only off school premises and in a context that was not connected to any approved school activities. This is distinct from C.O. v. Williamson, where a strong connection was established.

To date, C.O. v. Williamson has not received any negative treatment by an Ontario or other court in Canada and, therefore, continues to be a persuasive authority for vicarious liability cases involving school boards or districts that confer on teachers and other school personnel responsibility for, and power over, our children.

More encouraging for sexual abuse survivors in HN v School District No. 61 was the award to the plaintiff of $225,000 for non-pecuniary general damages. In making this award, the B.C. court acknowledged the trend towards increasing damages in sexual abuse cases and declined to rely on dated damages assessments (decided more than 10 years ago). This is because these old awards do not reflect the evolution of society’s and, in turn, our courts’ understanding of the extent of the harms caused by the sexual abuse of children. Over the last decade, our courts have increasingly recognized that the damages awarded to survivors of childhood sexual abuse should be commensurate with the gravity and harmfulness of the conduct, the effects of which often manifest in survivors’ lives over time. This understanding, we hope, will continue to evolve and be reflected in the reasoning of our courts in abuse cases.

If you are a survivor of sexual abuse, reach out for a free consultation. You are not alone.


Contact Lerners Today

Lerners understands you need someone to believe in you. Our consultations are free. Call today, and let us help you and your family.

877.287.8784 | 416.867.3076 | survivors@lerners.ca


Read More
For Lawyers Erika Tower For Lawyers Erika Tower

Family And Intimate Partner Violence – ONCA Renders Landmark Decision In Ahluwalia v. Ahluwalia

We consider the lessons learned from this much discussed and debated case, Ahluwalia v. Ahluwalia, 2023 ONCA 476, after summarizing both the trial and appellate decisions.

Authored by: Erika Tower, Zahra Vaid, and Elizabeth Grace

Last week, the Court of Appeal for Ontario (ONCA) released its highly anticipated decision in Ahluwalia v. Ahluwalia, 2023 ONCA 476. In this blog, we consider the lessons learned from this much discussed and debated case, after summarizing both the trial and appellate decisions.

In short, the decision was an appeal from the judgment of Justice Renu J. Mandhane of the Ontario Superior Court of Justice (ONSC), in a family law proceeding in which she created and applied the novel tort of family violence, and awarded the wife $150,000 for compensatory, aggravated and punitive damages. In our previous blog, we discussed the new tort and Justice Mandhane’s decision at length.

Writing for a unanimous 3-member panel of the ONCA, Justice Mary Lou Benotto determined that the creation of the novel tort of family violence was unnecessary in light of existing torts which adequately address the harms suffered. Although the new tort was not recognized, the decision provided an important opportunity for the ONCA to comment on the complexity of the various forms of violence and abuse that occur in intimate relationships and how they can be addressed by courts in the context of family law proceedings. The decision clearly states that such violence and abuse should be recognized, denounced and deterred, and confirms the jurisdiction of family court judges to render judgments on tortious misconduct in the course of their proceedings.

Background and Lower Court Decision

In this case, the appellant husband and respondent wife were married in 1999 in India. Shortly after their marriage, the couple immigrated to Canada for better opportunities. They arrived in 2002 with their first child and, like many newly immigrated families, had little social and financial support.

The marriage involved significant and serious emotional, financial and physical abuse of the mother at the hands of the appellant father, which led to the couple’s separation in 2016.

The respondent mother subsequently brought an action for statutory relief including divorce, child support, spousal support, and property equalization. She also claimed damages for the husband’s abusive, coercive and controlling conduct during their marriage.[1]

In assessing damages, Justice Mandhane explained 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”.[2] She therefore went on to recognize a new tort of family violence. In her view, this was necessary to stay “abreast of social change” and was also consistent with the compensatory goal of tort law.[3]

In characterizing the tort, Justice Mandhane held that a plaintiff could establish, through specific and particularized conduct, a defendant’s liability for the tort in the following ways:

  • intentional conduct that was violent or threatening;

  • behaviour calculated to be coercive and controlling to the plaintiff; or

  • conduct the defendant would have known with substantial certainty would cause the plaintiff to subjectively fear for their own safety or that of another person.[4]

To establish liability, Justice Mandhane stressed there needed to be a “pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessities of life, psychological abuse, financial abuse, or killing or harming an animal of property”.[5]

In her view, the tort was necessary as existing torts, like assault and battery, did not “fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence”.[6]

After finding liability under the tort of family violence, Justice Mandhane assessed damages at $150,000: $50,000 each for compensatory, aggravated and punitive damages. She then considered the statutory claims and determined that the appellant mother was entitled to the entire proceedings of sale from the matrimonial home.[7]

Ontario Court of Appeal

The appellant husband appealed and asked that the ONCA reject the creation of a new tort. While he conceded some liability, his concession was related to liability for existing torts that Justice Mandhane found in the alternative (i.e., torts of assault, battery, and intentional infliction of emotional distress). He argued that the tort of family violence was “poorly constructed, too easy to prove, and would apply to a vast number of cases and create a floodgate of litigation that would fundamentally change family law”.[8]

The appellant wife argued in response that a novel tort was necessary as existing torts “did not address the cumulative pattern of harm caused by family violence”.[9] However, she proposed a narrower tort of “coercive control”, which would be made out where a person, in the context of an intimate relationship inflicted a pattern of coercive and controlling behaviour that cumulatively was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm.[10]

The ONCA without question recognized the significance of intimate partner violence, citing the statistic that nearly half of women and one third of men in Canada have experienced intimate partner violence, and it acknowledged the widespread and intergenerational effects of this kind of abuse. However, the issue before it was whether a new tort of family violence was required to address the problem, or existing alternative remedies were sufficient. The short answer was: “existing torts are flexible enough to address the fact that abuse has many forms” and, therefore, the creation of a new tort of family violence is not necessary.

The creation of a new tort of coercive control was also rejected, and the ONCA took particular issue with the submission that the tort as proposed would not require proof of actual harm, but rather must only involve conduct calculated to cause harm.

According to the ONCA, the torts of battery, assault, and intentional infliction of emotional distress are able to recognize the patterns of behaviour that constitute intimate partner violence, for the purposes of both liability and damages. It also noted with approval that a “pattern” of abuse has previously been used to justify higher damages awards through these existing torts. The ONCA provided a lengthy and helpful discussion of how each of these torts sufficiently addresses such patterns of abuse.

Importantly, the ONCA concluded that it was not a mistake that the trial judge included a tort claim in a family law proceeding, and the compensatory damages awarded were appropriate. However, the ONCA allowed the appeal of the punitive damages award of $50,000, as the trial judge failed to make any finding that an award of general and aggravated damages was insufficient to achieve the goals of denunciation and deterrence. The wife’s damages were therefore decreased on appeal to $100,000, from $150,000.

Comment and Discussion

A Message to the Family Law Bar

Although the ONCA rejected the creation of a new tort of family violence, one of the key takeaways from its decision is its explicit confirmation that tort claims can properly be included in family law proceedings, and significant damages can be awarded.[11]

This acknowledgment is crucial, as many survivors of intimate partner violence only consider civil remedies after the conclusion of their family law claim. This can be inefficient and costly, and judgments more difficult to satisfy after assets have been divided and distributed. Having family law and civil law issues dealt with together avoids duplication of effort and resources, and streamlines the process and outcome.

There are other advantages to addressing tort claims within the family courts. For example, there is a more detailed and fulsome disclosure of assets and income in family law proceedings that is not generally available in a civil proceeding. Given the increasingly resolution-based nature of the family law system, litigants are often focused on reaching a final resolution, to achieve certainty and finality, and allow them to move forward with their respective lives.

The acknowledgment and discussion provided by the ONCA of the pervasiveness and seriousness of the various forms of violence and abuse that occur in intimate relationships is also extremely valuable and can be cited and relied upon in future proceedings involving intimate partner abuse. For example, it is recognized that recurring and ongoing abuse, intimidation, domination and financial abuse can become patterned into daily life, and trial judges need to be alive to these dynamics. It is also clearly stated that where any form of abuse leads to psychological injury, compensation is warranted.

A New Benchmark for Damages

In upholding the compensatory and aggravated damages of $100,000 awarded by the trial judge, the ONCA created a new benchmark for damages in cases involving intimate partner violence. It specifically recognized that the trial judge’s damages assessment was based on the depression and anxiety experienced by the respondent wife as a result of the abuse, the “overall pattern of coercion and control and clear breach of trust”, as well as the ways the appellant husband preyed upon the wife’s vulnerability as a new, racialized immigrant to Canada, which made it difficult for her to meet their children’s daily needs.[12] The ONCA justified the high award in light of society’s “emerging understanding of the evils of intimate partner violence and its harms”.[13]

While it remains to be seen whether leave to appeal to the Supreme Court of Canada will be sought, and if so, granted (we think it unlikely), Ahluwalia has generated significant and valuable discussion among the family and civil bars and the judiciary about the intersection of civil and family law proceedings in the context of allegations of intimate partner violence.

A clear message has emerged: intimate partner violence is serious, and it will no longer be rare or exceptional for claims for damages arising out of such allegations to be included in family court proceedings.

[1] Ahluwalia v. Ahluwalia, 2023 ONCA 476 at para. 16

[2] Ibid at para. 17.

[3] Ibid at para. 19-20.

[4] Ibid at para. 23.

[5] Ibid at para. 24.

[6] Ibid at para. 23.

[7] Ibid at paras. 26-28.

[8] Ibid, at para. 29.

[9] Ibid, at para 33.

[10] Ibid, at para 34.

[11] Ibid, at para. 46.

[12] Ibid, at para 127.

[13] Ibid, at para. 128.


Erika Tower - Toronto Personal Injury Lawyer

Contact ERIKA Today

Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.

416.775.7717 | etower@lerners.ca


Read More
In The Media Erika Tower In The Media Erika Tower

Erika Tower Speaks To CBC News About Civil Case Against CDSBEO And Ted Oliver

This is the third teacher from St. John Catholic High School since April 2021 that has been implicated in sexual abuse allegations against minors.

“It’s impacted her relationships, the way she views the world, [and] the way she views relationships between children and authority figures with suspicion.”

In a follow-up to our recent statement, Erika Tower, who is acting for a client in a civil case against both the Catholic District School Board of Eastern Ontario and Ted Oliver (a former teacher at St. John Catholic High School), seeking damages for sexual abuse, spoke to CBC News about the case.

This is the third teacher from St. John Catholic High School since April 2021 that has been implicated in sexual abuse allegations against minors.

Read the article here.


Erika Tower - Toronto Personal Injury Lawyer

Contact ERIKA Today

Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.

416.775.7717 | etower@lerners.ca


Read More