The New Tort of Family Violence

Learn about a recently created area of family-related liability

The basic facts of this case are that it was a 17-year marriage; they were introduced to each other by their families in India; there were two children; the parties immigrated to Canada to pursue economic opportunities; they were both well-educated; the mother was responsible for caregiving while the father earned income outside the home. They separated in 2016 with the mother and children continuing to reside in the matrimonial home.

At the end of this case, the mother was awarded the proceeds of sale of the matrimonial home, retroactive and ongoing child and spousal support and custody. What was unique is that in this case the judge set precedent by entertaining and granting the mother’s claim for additional damages on the basis of family violence. Previously, this was not a recognized cause of action.

The mother recounted individual incidents of DV in 2000, 2008 and 2013, as well as an overall pattern of emotional abuse and financial control.

The issues in this case were defined as follows: 1) Is the tort properly considered as part of the family law proceeding? 2) Is there a tort of family violence? 3) In this case, is the father liable for damages for committing family violence? 4) If so, what should be the award of damages?

The issues were decided as follows: 1) The tort is properly considered part of the family law proceeding because the family law statutory framework only addresses the financial and child care aspects of the separation, whereas this common law tort would compensate the victim for harm caused by DV and hold the perpetrator personally accountable for it. 2) The judge hearing this case created a new tort of family violence, described below. 3) He is liable for the family violence found to have been committed. 4) He was ordered to pay his wife damages in the amount of $150,000.

The legal test for the tort of family violence is that the plaintiff must prove to the civil standard (i.e., a balance of probabilities) that a family member committed, in the context of a relationship, conduct that either: a) is violent or threatening, b) constitutes a pattern of coercive or controlling behavior or c) causes the plaintiff to fear for their safety or that of another person.

For liability to arise, it is insufficient that the relationship is unhappy or dysfunctional. Liability only arises where there are multiple incidents of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, killing an animal or harming property.

The judge noted that these three different forms overlap with existing torts. For example, situation a) corresponds to battery and assault and situation c) coincides with forcible confinement or intentional infliction of emotional distress. However, rationales were provided in support of the existence of family violence as a distinct area of liability.

The creation of this brand-new cause of action was justified on the basis of legal commentary from US legal discourse; a desire to increase access to justice to women in these situations; and in furtherance of international human rights.

The tort of family violence is meant to compensate female victims for the cumulative effect of the pattern of abuse, not necessarily for each incident. This is another reason that was offered for the creation of this entirely new civil cause of action.

The decision is currently being appealed.