By Emily Murray, Luke’s Place

On March 23, 2023, Luke’s Place was honoured to intervene in Ahluwalia v. Ahluwalia at the Ontario Court of Appeal along with the Barbra Schlifer Commemorative Clinic. The decision recognizes a new tort of family violence and has important implications for survivors of intimate partner violence throughout the province.

This case involved a 17-year traditional marriage in which Mrs. Ahluwalia took on responsibilities at home and for the children and Mr. Ahluwalia was responsible for earning money outside the home. The evidence at trial established a clear pattern of coercive controlling violence by Mr. Ahluwalia involving extensive emotional and psychological abuse as well as financial and physical abuse.

Mrs. Ahluwalia, who was unrepresented at trial, successfully included a claim for damages for the violence she was subjected to throughout the marriage. Justice Mandhane accepted Mrs. Ahluwalia’s evidence and found that existing torts did not properly capture the true nature of harm resulting from situations involving a pattern of abusive behaviour as opposed to isolated incidents. To fill this gap, Her Honour recognized a new tort of family violence and ordered Mr. Ahluwalia to pay damages to Mrs. Ahluwalia in the amount of $150,000 for the family violence she had been subjected to during the marriage.

Mr. Ahluwalia appealed this decision, requesting that the Court of Appeal set aside the recognition of the tort of family violence and reduce the order for damages. For a more detailed description of the case, please read our previous blog post written by our staff lawyer, Thijiba Sinnathamby and the article in The Lawyer’s Daily written by our Advocacy Director, Pamela Cross.

The importance of this decision for survivors of violence cannot be overstated. The tort recognizes the extensive and pervasive harms that flow from family violence and provides a much-needed mechanism for survivors to be financially compensated for this harm. Luke’s Place and the Schlifer Clinic sought intervenor status together to argue that the tort of family violence be upheld and the damages award maintained.

Our argument was that the recognition of the tort of family violence is an important and necessary incremental step in the evolution of the common law that is supported by legislation, case law, literature, research and our international obligations. Existing torts simply do not properly capture and compensate the true nature of family violence as a pattern of coercive and controlling behaviour. The incident-based nature of existing tort law is inconsistent with the lived experience of many survivors of family violence. This point was very clearly and eloquently made in paragraph 31 of our factum:

If an abuser only- but always – beats his partner on Mondays, the civil law has previously recognized this as a once-a-week problem: one day of brutal violence (remediable in tort) and six days of “peace” (with no need of a remedy). This absurdity highlights precisely the failure of the existing civil law. In reality, the six days between beatings are not days of peace, but of real harm which is inextricable from the acts of physical violence. Survivors often literally live with the source of the harm that they suffer. To adequately address this harm, the law must offer a remedy that responds to this intimacy and complexity and which addresses the harm and violation experienced not only during an incident of abuse but also in the period between the discrete instances of abuse, as well as the overall breach of trust and complex impact of systemic violence on the lives of survivors.

On the issue of damages, we argued that the damages award of $150,000 should not be reduced. Damages are important and should reflect the extensive and complex harms resulting from family violence. For a survivor, this could be an important step toward minimizing some of the financial barriers experienced as a result of the violence, including poverty and lack of safe and affordable housing.

For those who are interested, download a full copy of our factum.

The Court of Appeal has reserved its decision. We will now be spending the next few months anxiously awaiting the outcome of this case.