The Tort of Family Violence – Update

Existing Torts Provide Adequate Remedies, New Tort Unnecessary, Court Finds

The appeal judgment of a trial decision that created a new tort called family violence[1] was released.

Firstly, ML Benotto JA determined that the trial judge (TJ) erred in creating a new tort of family violence. Recognizing that intimate partner violence is a pervasive social problem, the appellate judge reasoned that, for proposed nominate torts, a consideration is whether there are other adequate remedies. The TJ’s findings (such as that the husband physically assaulted the wife on three separate occasions) were sufficient for the verdicts that he committed assault, battery and intentional infliction of emotional harm. Contrary to the TJ’s rationale, Ontario courts have considered that patterns of behavior, and not merely individual instances, can constitute these torts.

The wife’s counsel suggested that if the tort of family violence was incorrectly created, that a new tort of coercive control should be innovated, in its place, defined as where a person: (1) in an intimate relationship, (2) inflicted a pattern of coercive and controlling behavior and (3) that, cumulatively, was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm. However, the court noted, as an important and positive trend in the family law system, that there has been a movement from an adversarial approach towards a more resolutions-based one. Eliminating the requirement of proof, as the wife’s counsel advocated, would risk unintentionally encouraging allegations of fault in every case.

A central aspect of tort claims relating to intimate partner violence is that the damage committed may be psychological in nature and what the proper evidentiary requirements should be. Psychological injury, to be compensable, must be serious, prolonged and rise above ordinary annoyances, anxieties and fears that are a part of everyday life in modern society. Lack of a psychiatric diagnosis is not dispositive of the issue; instead, a TJ assessing damages may rely on other evidence. Relevant factors include the seriousness of impairment of the complainant’s cognitive functions and participation in daily activities, the length of such impairment and the nature and effect of any treatment sought or taken in relation to the psychological upset.

The TJ’s damages award, in the lower decision, was also examined for correctness. The TJ awarded $50,000 each in compensatory, aggravated and punitive damages. ML Benotto JA stated that, when compared with previous cases, these amounts are high but that they are entitled to deference. Higher damage awards may indeed be appropriate to recognize the degree of harm of intimate partner violence that currently is being recognized. However, the TJ’s award of $50,000 in punitive damages was erroneous in law because the TJ did not conduct the necessary analysis of whether the compensatory and aggravated damage awards were sufficient to achieve the goals of denunciation and deterrence. Thus, the net damages were reduced to $100,000.

Lastly, the appeals judge found that the tort claim seemed to have overshadowed all other issues in the lower decision, including child support and the disposition of the matrimonial home, and that the proper procedure to be followed in family proceedings is to first determine the statutory claims (e.g., spousal support, equalization) and afterwards to consider any tort claims.

[1] which was discussed in our blog post on May 20, 2023 called “The New Tort of Family Violence”

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