Family Violence in Divorce Proceedings
Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (“Ahluwalia”)
Written by: Guntash Gill
In March 2021, new amendments to the Divorce Act were introduced, one being that family violence would be explicitly included as a factor relevant to the best interests of the child.
It is important to note that family violence is not isolated to only physical abuse, but includes a wide range of conduct which includes:
1. psychological abuse;
2. financial abuse;
3. threats or the actual killing of animals; and/or
4. damage to property.
Under the Divorce Act’s no-fault rules, courts cannot consider spousal misconduct when determining issues such as child support, spousal support, and division of property. However, the Ontario court’s decision in Ahluwalia highlights how family violence is addressed in divorce proceedings.
The court in Ahluwalia ruled that in unusual cases, the court may consider a history of abuse, and award damages where appropriate. This groundbreaking decision in Ahluwalia ordered a husband to pay his former wife $150,000 in damages for “compensatory, aggregated, and punitive damages for the tort of family violence” for the physical and psychological abuse the wife endured during their 17-year marriage. With damages awarded in this case, the court essentially created a new tort of “family violence”, which addresses the cumulative impacts of an abusive relationship.
Previously, the tort of battery would focus on isolated events, but with this new tort of family violence, survivors are now able to bring evidence of emotional abuse during the course of their entire relationship into a divorce proceeding.
In rendering the decision, the court sets out three factors to consider in determining whether damages for family violence ought to be awarded. To that end, damages may be awarded, if the conduct is:
1. violent or threatening;
2. constitutes a pattern of coercive and controlling behavior; or,
3. causes the family member to fear for their own safety or that of another person.
Although existing torts, like assault and battery may overlap with this new tort, such torts are limited in scope and do not take into consideration the cumulative and continuous harm associated with the pattern of control which is at the heart of family violence cases.
The tort of family violence recognizes that a pattern of spousal abuse can be considered and compensated by monetary damages in divorce cases without the abused party needing to file a separate claim in court.
Although the Ahluwalia decision is being appealed, the decision still signals a strong message that the courts are taking a stern approach to the long term effects of family violence.
If you or anyone you know is separating or going though a divorce and require legal assistance, please contact one of the members of SB LLP’s family law and divorce group.
https://sb-llp.com/michael-a-murray
https://sb-llp.com/jack-hauptman
https://sb-llp.com/guntash-gill