Kirschbaum: Family law courts can now consider damages for violence

Amendments to the Divorce Act are beginning to reflect a significant — and welcome — shift in attitude by the legal profession and legislators. A recent family court judgment laid out some ground rules.

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On Feb. 28, 2022, Justice Renu Mandhane of the Superior Court of Justice issued a ruling in a case called Ahluwalia v. Ahluwalia, making it possible to sue for damages for domestic violence in family court. In a family law case dealing with equalization, child and spousal support, she awarded the mother $150,000 in compensatory, aggregated and punitive damages for what is now called the tort of family violence, recognizing that such a significant damage award is well outside the normal boundaries of family law. In doing so, she marked a profound change in the court’s sensitivity to the needs of victims of family violence. But how far this decision will take us remains to be seen.

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Previous to the Ahluwalia decision, spouses who wished to claim damages in addition to whatever claims they had in family court had to bring a totally separate case in civil court. This created an additional hurdle to achieving compensation for harms suffered, and no doubt dissuaded many claimants from seeking damages for the family violence they endured. Parties financed through Legal Aid would not have received funding to take their cases for family violence damages to civil court. And a second court case often meant hiring another lawyer and litigating all over again. Because of the ruling in Ahluwalia, this is no longer necessary. Claims for damages arising from family violence can be dealt with in family court, as part of an ordinary family law case.

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The presence of family violence has long been a factor that courts have considered in cases dealing with decision-making responsibility for, and parenting time with, children. However, the presence of family violence is irrelevant to financial claims ordinarily brought in family law litigation, for example equalization (how assets are measured and apportioned following separation), and child and spousal support. In that sense, litigants who suffered family violence, but did not initiate a second court case for damages, were treated like all other separating parties. Decisions about financial arrangements in their relationships were made, to a great extent, as if the violence had not occurred. The creation of this new ability to plead family violence in family court rectifies this problem.

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Drawing from the 2021 amendments to the Divorce Act, which legislated a definition of family violence for the first time in Canadian matrimonial legislation, Justice Mandhane set out a test for this new claim. A litigant must be able to demonstrate, on a balance of probabilities, that a family member engaged in a pattern of conduct that included 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. Justice Mandhane stressed that being able to demonstrate that a relationship was dysfunctional or unhappy would not be enough to entitle a litigant to damages.

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This case is arguably the most significant development in family law as it relates to domestic violence since the 2021 changes to the Divorce Act, which codified in statute for the first time a broad definition of domestic violence that would constitute a factor to be considered in determining arrangements for children. The 2021 Divorce Act amendments were progressive in that they recognized that family violence can take many forms, including patterns of coercive and controlling behaviors, financial abuse, psychological abuse and violence to pets among others.

When the amendments were promulgated, it was not clear how seriously they would be taken or how far-reaching their impact would be. What we can see now is that the amendments are reflective of a significant psychological shift in attitude by the profession and the legislators on family violence.

Nevertheless, a question that remains is how many litigants will begin to pursue this new claim in their family law cases, whether the courts will be inundated, and how frequent large damage awards will be. An appeal may also affect the case. Other questions include whether Legal Aid Ontario will begin funding this litigation in domestic violence cases. Regardless, the Ahluwalia case is a sign of significant progress in the pursuit of justice for victims of domestic violence in family court.

Ottawa lawyer Alexandra Kirschbaum has practiced exclusively in family law since 2013.

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