Domestic abuse has proven an unfortunately steadfast scourge on society over many decades, but I am confident that Justice Mandhane’s ruling will stand as a landmark moment in the history of our justice system’s approach to the issue by giving survivors a new — and necessary — avenue for redress.

Drawing on the addition of a definition of “family violence” in the federal government’s recent reform of the Divorce Act, the judge described liability under the new tort as conduct by a family member in the context of a relationship that:

• Is violent or threatening, or
• Constitutes a pattern of coercive and controlling behaviour, or
• Causes the plaintiff to fear for their safety or that of another person.

Although she acknowledged overlap with the existing torts of intentional infliction of emotional distress, assault and battery, Justice Mandhane said the new tort of family violence would fill a gap caused by the traditional conception of tortious conduct as rooted in specific, damaging incidents.

“[T]he existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness,” she wrote. “These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse. These uniquely harmful aspects of family violence are not adequately captured in the existing torts.”

Justice Mandhane also cited access to justice as a critical aspect of her recognition of the new tort, explaining that it would allow family law litigants to claim damages for family violence without the expense and complexity of parallel civil proceedings.

Still, in my view, it is important that survivors retain the option to pursue their abusers via a separate claim in civil court, where the family violence tort fills the very same gap in the law identified by Justice Mandhane.

Although this new tort emerged in the context of an application for divorce, individual family law claimants may prefer to simplify proceedings in family court to the extent possible, by steering clear of tort claims.

I have also encountered instances where a person’s family law counsel was (understandably) unwilling to advance family violence claims, because of their relative inexperience in tort law. Marshalling the evidence to establish liability under a specific tort requires a very particular skill set, and both family lawyers and their clients may feel more comfortable outsourcing this aspect of a case to someone more familiar with the intricacies of civil litigation.

In addition, a family violence claim in civil court may be the only option for unmarried plaintiffs in common-law relationships, or those whose abusers are not their spouses at all, but other members of their family — including parents, children, aunts or uncles.

It is unclear if the unsuccessful husband in Ahluwalia filed an appeal, but whether it is in this case or another, the family violence tort will eventually end up before the Court of Appeal for Ontario, where a panel could still widen or limit its scope.

I and many others will be watching closely for developments, but I find it hard to believe that the province’s court will turn its back on the new tort altogether.

In the meantime, Justice Mandhane set a relatively high bar for claimants to clear, requiring plaintiffs to prove on a balance of probabilities that a family member engaged in a pattern of conduct including specific and detailed accounts of more than one incident of “physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or killing or harming an animal or property.”

“It will be insufficient to point to an unhappy or dysfunctional relationship as a basis for liability in tort,” she added.

“The focus must be on the family member’s specific conduct, which must be particularized using specific examples. It will be insufficient and unfair for the plaintiff to simply rely on the pattern of conduct without pointing to any specific incidents. From a fairness perspective, the tort claim cannot be a series of bald assertions.”

Rohan Haté is a partner at McPhadden Samac Tuovi Haté LLP and practises primarily in insurance litigation. His practice is committed to all areas of personal injury litigation on behalf of his clients and their families who need guidance and support in navigating through the insurance claims process.

The opinions expressed are those of the authors and do not reflect the views of the authors’ firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Yvette Trancoso at Yvette.Trancoso-barrett@lexisnexis.ca or call (905) 415-5811.

Article Courtesy:- Law Times