By Maria Golarz, Senior Associate Research Lawyer, Lam Family Law*

This article:

  1. Provides a case summary of the ONCA’s much awaited decision in Ahluwalia v. Ahluwalia, which rejects the tort of family violence;
  1. Outlines 10 different, existing torts that may arise in cases of family violence; and
  1. Provides general tips for raising tort claims in family law cases.

 

Ahluwalia v. Ahluwalia: Tort of Family Violence Unnecessary Given Existing Torts

In Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII), the ONCA recognized that intimate partner violence is “the cancer of domestic relationships” (para 43). It is a “pervasive social problem”, which must be “recognized, denounced and deterred” and which requires societal steps to address and ameliorate (paras 1-2 & 37).

However, the ONCA unanimously found that recognizing a new tort of “family violence” was unnecessary where “existing torts, properly applied, address the harm suffered” (para 3).  Specifically, courts had previously recognized patterns of physical and emotional abuse as tortious behaviour (paras 73-79 & 91). Patterns of abuse had also previously been considered as a reason to award higher damages in the context of existing torts (paras 80-85), and in fixing costs awards (para 86).

In Ahluwalia, the trial judge accepted the wife’s evidence of a pattern of emotional and physical abuse and financial control (paras 9-15). The fact that the husband was abusive during the marriage was not disputed on appeal (para 8). However, the ONCA accepted that three existing torts already address patterns of behaviour, for both liability and damages (para 60), namely:

  • battery (paras 63 & 91),
  • assault (paras 67-68 & 91), and
  • intentional infliction of emotional distress (paras 69-71 & 91).

The elements of each of these torts are expanded upon below.

The ONCA upheld the trial judge’s assessment for compensatory ($50,000) and aggravated damages ($50,000) ordered against the husband (paras 125 & 129). However, the ONCA reduced the additional $50,000 for punitive damages. The compensatory and aggravated damages were sufficient to accomplish the objective of condemnation. It held that it was unreasonable and disproportionate to add such an amount of punitive damages without any explanation (paras 125 & 130-133).

The ONCA also rejected the wife’s alternative suggestion of a new tort of coercive control to address subordination and control within an intimate relationship where, inter alia, the existing tort of intentional infliction of emotional distress already provides an adequate remedy, the elimination of the requirement to establish visible and provable injuries did not arise in the case before it, and in any event, the elimination of such a requirement was best left to the legislature (paras 103-106 & 124).

Finally, the ONCA also confirmed that statutory entitlements, including equalization and corollary relief under the Divorce Act, should be determined before addressing liability and damages for a tort claim (paras 134-141).

 

10 Existing Torts That May Arise in Cases of Family Violence

So what are those existing torts and what do you need to know to properly advise your client and make or defend such a claim?

Here we outline 10 torts that address family violence in family law situations. Note that this is not a comprehensive list. Courts have considered other torts that could be applicable where family violence is alleged, including defamation, cyberlibel, conspiracy, breach of confidence, malicious prosecution, deceit and misrepresentation, appropriation, and conversion.

 

  1. Battery (i.e., the intentional infliction of unlawful force on another person)

Elements: To make out a claim of battery, the plaintiff must prove, on a balance of probabilities: 

  1. intentional application of unlawful force by the defendant to the plaintiff’s body; and
  2. that the interference with the plaintiff’s body was harmful or offensive.

 Leading cases: Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII), at paras 61-66, citing Barker v. Barker, 2022 ONCA 567 (CanLII) & Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 (CanLII).

Recent and/or notable family cases: Moncada v. Alexandre, 2021 ONSC 1082 (CanLII), at paras 15-17 & 51-71 [$60,000 in general damages, $8,700 in special damages for loss of income for assault and battery following one-year cohabitation].

Petrie v Lindsay, 2019 BCSC 371 (CanLII), at para 167-182 [$20,000 in general damages for assault and battery and severe personal injuries precipitating separation leading to back injury, PTSD, anxiety and depression].

Montgomery v Kenwall, 2017 ONSC 3107 (CanLII), at paras 33-38 & reviewing various spousal assault and battery cases in Schedule A [$75,000 in general damages for assault and battery causing physical and emotional injuries; husband criminally convicted four times during relationship].

Tips: Battery involves actual physical contact or bringing about harmful or offensive contact with another person. Interference is direct if it is the immediate consequence of a force set out in motion by an act of the defendant. The interference must be “harmful or offensive” or contact that is “non-trivial”: Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII), at para 62, citing Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 (CanLII).

 

  1. Assault (i.e., the threat of an immediate battery)

Elements: To make out a claim of assault, the plaintiff must prove: 

  1. intentional conduct by the defendant;
  2. that creates in the plaintiff’s mind a reasonable apprehension of imminent offensive or harmful contact by the defendant.

The court must also consider the following three questions:

  1. What conduct did the party engage in against the other party?;
  2. Is there an entitlement to damages based on the facts?; and
  3. What should the quantum of damages be?

Leading case(s): Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII), at paras 61-66, citing Barker v. Barker, 2022 ONCA 567 (CanLII).

Recent and/or notable family cases: See the example cases discussed under the tort of battery, above. While conceptually different, assault and battery are often pled and discussed together.

Tips: Assault involves intentionally causing another to fear imminent contact of a harmful or offensive nature. It is grounded in creating apprehension of harm. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs: Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII), at para 64, citing Barker v. Barker, 2022 ONCA 567 (CanLII). 

Under several provincial Limitations Acts, where an assault occurs between parties in an intimate relationship, or in a relationship of dependence, no limitation period exists for initiating a claim of assault: see, e.g., Ontario’s Limitations Act, 2002, SO 2002, c. 24, Sch. B, s. 16(1).

 

  1. Sexual Battery

Elements: The elements of the tort of sexual battery are the same as for battery, that is, the plaintiff must prove, on a balance of probabilities, that the defendant intentionally touched the plaintiff in a sexual manner.

However, the second element, that the interference with the plaintiff’s body was “harmful” or “offensive,” is implied (assuming a lack of consent) in the context of a sexual battery.

Leading case(s): PP v. DD, 2017 ONCA 180 (CanLII), at paras 70-83 [upholding dismissal of father’s claim for sexual battery stemming from claim of “involuntary parenthood” where no reasonable cause of action], citing Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 (CanLII).

Recent and/or notable family cases: B.D. v. D.O., 2020 ONCA 29 (CanLII) [upholding dismissal of claim where failed to establish on balance of probabilities].

ES v Shillington, 2021 ABQB 739 (CanLII), at paras 103-114 [multiple claims advanced successfully, including sexual abuse, discussed further below].

 

  1. Intentional infliction of emotional distress (a.k.a. Intentional infliction of mental distress, harm, suffering, or nervous shock)

Elements: To prove intentional infliction of emotional distress, the plaintiff must show:

  1. flagrant or outrageous conduct;
  2. calculated to produce harm; and
  3. resulting in visible and provable injury.

Leading case: Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ON CA), at para 48.

Recent and/or notable family cases: S.B. v. D.H., 2022 SKKB 216 (CanLII), at paras 21, 84-96, & 102-134 [intentional infliction of emotional distress and public disclosure of private facts where distributing intimate images online; $85,000 in general damages, $75,000 in aggravated damages]. 

ES v Shillington, 2021 ABQB 739 (CanLII), at paras 47-50, 84, & 87-102 [multiple claims found, including intentional infliction of mental distress, where father committed multiple assaults during relationship and posted sexual photos online; $80,000 in general damages, $50,000 in punitive damages, and $25,000 in aggravated damages for public disclosure of private facts, breach of confidence and mental distress claims].

Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII), at paras 164-165, 184, & 192-202 [$50,000 in compensatory damages for intentional infliction of mental suffering, $100,000 for invasion of privacy, and $150,000 in punitive damages where husband created two websites, one to attack wife and her parents with videos and statements about their children, and one to support husband’s campaign to “unseat” judge who made temporary 2018 order allowing wife and children to return to England].

Costantini v. Costantini, 2013 ONSC 1626 (CanLII), at paras 7-8 & 57-63 [damages of $15,000 where husband’s verbal and physical behaviour was outrageous, intended to cause physical pain and injury and significant emotional upset].

McLean v. Danicic, 2009 CanLII 28892 (ONSC), at paras 48-50 & 84-87, appeal quashed, 2010 ONCA 22 (WL) [claim made out even though not pled; $15,000 in damages where, after separation, common law spouse sent intimate sexual photographs of plaintiff to plaintiff, and threatened to also send to family and friends].

Tips: Prior to Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII), many family courts would strike down this tort claim given the Supreme Court of Canada’s holding in Frame v. Smith, 1987 CanLII 74 (SCC) that this tort should not be extended to the family law context. However, the ONCA recently clarified that this tort is available on the right facts (para 45).

The ONCA also noted that the second requirement (calculated to produce harm) is met where the defendant desired to produce the consequences that followed from the act, or if the consequences were known to be substantially certain to follow. The third requirement (injury) does not require expert medical evidence and may be satisfied by depression or physical illness resulting from the conduct (para 70, citing various sources).

 

  1. Online or Internet Harassment / Cyber-bullying (i.e., intentional infliction of emotional distress but without actual injury)

Elements: To make out a claim for online harassment, the plaintiff must prove:

 that the defendant maliciously or recklessly engaged in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;

  1. with the intent to cause fear, anxiety, emotional upset, or to impugn the dignity of the plaintiff; and
  2. the plaintiff suffered such harm.

Leading case: Caplan v. Atas, 2021 ONSC 670 (CanLII), at paras 104 & 163-175.

Tips: Some provinces have introduced legislation that addresses online harassment: see, e.g., Manitoba’s The Intimate Image Protection Act, CCSM c 187 & Nova Scotia’s Intimate Images and Cyber-protection Act, S.N.S. 2017, c. 7. Ontario has not, which led to the creation of this tort in Caplan v. Atas (2021).

 

  1. Intimidation (a.k.a. extortion)

Elements: To make out a claim of intimidation, the plaintiff must prove: 

  1. some form of threat;
  2. unlawful act or means;
  3. submission to the threat;
  4. injury was intended; and
  5. injury resulted from submission to the threat.

Leading case(s): A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 (CanLII), at paras 65-66.

Recent and/or notable family cases: Scherf v. Nesbitt, 2009 ABQB 658 (CanLII), at paras 1-4 & 24-34 [common-law wife previously succeeded in obtaining distribution of proceeds of sale of jointly-owned property; intimidation claim failed where no evidence to support that common-law husband’s emails threatened illegal act; extortion claim made out where husband knowingly applied illegitimate pressure by threatening to publicly disclose material he knew wife wished to keep private].

Tips: This tort may be available in family law where the opposing party has made threats in an effort to prevent litigation, although this does not yet appear to have been argued in the case law.

 

  1. False Imprisonment (i.e., detainment against one’s will)

Elements: To make out a claim of false imprisonment, the plaintiff must prove: 

  1. the plaintiff was totally deprived of liberty;
  2. this deprivation was against the plaintiff’s will; and
  3. the deprivation was caused by the defendant.

The onus then shifts to the defendant to justify the detention based on legal authority under common law or statute.

Leading case: Kovacs v. Ontario Jockey Club, 1995 CanLII 7397 (ON SC), at paras 45-48.

Recent and/or notable family cases: Bobel v. Humecka and Patten, 2019 ONSC 1876 (CanLII), at paras 31-33 [plaintiff detained by police; motion to strike plaintiff’s claim dismissed where elements adequately pled] and subsequent proceedings at Bobel v. Humecka, Patten, 2021 ONSC 852 (CanLII), at paras 163-168 [claim failed on third requirement where neither defendant, ex-girlfriend and her new partner, actually responsible for detention; or in alternative, defendants had reasonable defence].

L.M.D v. R.J.D, 2011 YKSC 70 (CanLII), at paras 64 & 68-69 [claim made out where father detained mother in wall tent during winter; however, no damages awarded where, following family law proceedings, father would be “judgment proof” and also to avoid future interaction between parties through enforcement proceedings].

Tips: The imprisonment or detainment can be actualized by the defendant, or  by the police but caused by the defendant.

 

The following torts all fall under an umbrella of privacy-related torts (which includes appropriation, not discussed here):

 

  1. Intrusion upon seclusion (i.e., accessing another’s private and personal information)

Elements: To make out a claim for intrusion upon seclusion, the plaintiff must show:

  1. intentional or reckless conduct;
  2. that invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
  3. that a reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish.

Leading case: Jones v. Tsige, 2012 ONCA 32 (CanLII), at paras 65 & 70-90 [defendant surreptitiously looking at plaintiff’s banking records for years after forming common-law relationship with plaintiff’s former husband; damages of $10,000 awarded].

Recent and/or notable family cases: Patel v Sheth, 2016 ONSC 6964 (CanLII), at paras 104-116 [claim made out where husband planted camera in parties’ bedroom; $15,000 in damages; assault and battery also made out].

Roque v Peters, 2022 MBQB 34 (CanLII), paras 3-26 & 91-99 [not made out where facts went beyond intrusion to involve distribution of intimate and private images by email; facts more appropriately fit under tort of public disclosure of private facts; but here, liability found under Manitoba’s The Intimate Image Protection Act, CCSM c 187 & The Privacy Act, CCSM c P125].

Tips: Proof of harm to a recognized economic interest and economic loss is not required (Jones v. Tsige, 2012 ONCA 32 (CanLII), at para 71). Damages will be modest and can range up to $20,000 absent pecuniary loss (para 87).

 

  1. Public disclosure of private facts (i.e., distributing another’s private and personal information)

Elements: To make out the tort of public disclosure of private facts, the plaintiff must prove that: 

  1. the defendant publicized an aspect of the plaintiff’s private life;
  2. the plaintiff did not consent to the publication;
  3. the matter publicized or its publication would be highly offensive to a reasonable person; and
  4. the publication was not of legitimate concern to the public.

Leading case(s): Doe 464533 v. N.D., 2016 ONSC 541 (CanLII), at para 41 [“revenge porn”; posting of intimate video on pornographic website without knowledge or consent], default judgment subsequently set aside, Doe v. N.D., 2016 ONSC 4920 (CanLII), leave to appeal ref’d, Jane Doe 464533 v N.D., 2017 ONSC 127 (CanLII).

Recent and/or notable family cases: S.B. v. D.H., 2022 SKKB 216 (CanLII), at paras 16-20, 76-83, & 102-134 [public disclosure of private facts and intentional infliction of mental distress; distributing intimate images online; $85,000 in general damages, $75,000 in aggravated damages]. This case also provides a thorough review of ES v Shillington, 2021 ABQB 739 (CanLII), Doe 464533 v. N.D., ibid, & Jane Doe 72511 v. N.M. et al., 2018 ONSC 6607 (CanLII).

Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII), at paras 166-202 [$100,000 in damages for invasion of privacy through publicly placing wife in false light and public disclosure of private facts, $50,000 for intentional infliction of “mental suffering”, and $150,000 in punitive damages where husband created two websites, one to attack wife and her parents with videos and statements about their children, and one to support husband’s campaign to “unseat” judge who made temporary 2018 order allowing wife and children to return to England].

Tips: Some provinces have enacted relevant legislation, see, e.g., Alberta’s Protecting Victims of Non-Consensual Distribution of Intimate Images Act, SA 2017, c P-26.9 & Manitoba’s The Intimate Image Protection Act, CCSM c 187.

 

  1. Publicly placing person in a false light

Elements: To make out a claim for publicly placing a person a false light, the plaintiff must prove that:

  1. the false light in which the other was placed would be highly offensive to a reasonable person; and
  2. the actor had knowledge of or acted in reckless disregard to the falsity of the publicized matter, and the false light in which the other would be placed. 

Leading case(s): Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII), at paras 19-21 & 166-202 [$100,000 in damages for invasion of privacy through publicly placing wife in false light and public disclosure of private facts, $50,000 for intentional infliction of “mental suffering”, and $150,000 in punitive damages where husband created two websites, one to attack wife and her parents with videos and statements about their children, and one to support husband’s campaign to “unseat” judge who made temporary 2018 order allowing wife and children to return to England].

Tips: Unlike the tort of intrusion upon seclusion, significant damages can be awarded for publicly placing a person in a false light, even if the claimant has not suffered any economic loss: Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII), at paras 187-191.

 

General tips for litigating torts claims: 

  • Statutory entitlements, including equalization and corollary relief under the Divorce Act, should be determined before addressing liability and damages for a tort claim: Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII), at paras 140-141. 
  • However, all potential claims arising from a relationship breakdown, including tort claims, should be dealt with at the same time. This saves litigation costs and court time, ensures consistency in outcomes, and allows a tort judgment to be factored into the overall financial result: see, e.g., Costantini v. Costantini, 2013 ONSC 1626 (CanLII), at para 24 & Cunningham v. Cunningham, 2013 ONSC 282 (CanLII), at para 18.
  • Tort claims should be brought before the Ontario Superior Court of Justice. The Ontario Court of Justice does not have tort jurisdiction: see, e.g., M.-A.M. v. J.C.M, 2017 ONCJ 144 (CanLII), at para 56 & S.B. v. J.I.U., 2021 ONCJ 614 (CanLII), at para 48 / footnote 2.
  • Tort claims are subject to a two-year limitation period under most provincial legislation, from the date the claim was discovered: see, e.g., Ontario’s Limitations Act, 2002, SO 2002, c. 24, Sch. B, ss. 4-5. There is no limitation period for assault within an intimate relationship: see, e.g., Ontario Limitations Act, 2002, SO 2002, c. 24, Sch. B, s. 16(1).

*with thanks to Vanessa Lam for her suggestions and edits.