Ahluwhalia and an Unnecessary New Tort? The Divorce Act, Family Violence, and Spousal Support
Anastasia Jones, 3L, Volume 81 Senior Editor
What happens when an abusive marriage collapses? Victims and onlookers alike initially celebrate: the harm has ceased. But the psychological, emotional, physical, and financial injuries do not simply disappear, and the law is often tasked with securing justice. How this should be done and the form it might take—in Canada, at least—is currently in flux. The recent case of Ahluwhalia v Ahluwhalia, 2022 ONSC 1303 (CanLII) (Ahluwhalia) offers one possible solution: the new tort of family violence. This is a bold judicial move by Justice Mandhane of the Ontario Superior Court of Justice and is at once courageous and pragmatic. But, I would like to suggest it is also unnecessary—or, at least, it would be if recent legislative amendments in family law had been taken to their logical and sensible conclusion. In the following post, I argue that the federal Divorce Act, 1985 (“Divorce Act”) should adequately protect and recompense survivors of family violence under spousal support guidelines and avoid overcomplicating remedies for survivors of family violence.
To begin properly is to begin with the marriage—and the people at the heart of it. Amrit Pal Singh Ahluwhalia and Kuldeep Kaur Ahluwhalia were married for 16 years. On the surface, the union made sense. Both bride and groom were highly educated, and their families encouraged the relationship. The Ahluwhalias moved from India to Canada to pursue economic opportunities, and theirs was the classic fable of good fortune through hard work: countless jobs and two children later, they appeared to be settled prosperously in the GTA. But behind closed doors, the marriage was less than harmonious. According to Mrs. Ahluwhalia (and several corroborating witnesses), her husband controlled her—and every aspect of their lives—through the threat of physical violence. Mrs. Ahluwhalia learned the contours of a life circumscribed by fear: she was expected to accept all her husband’s decisions and remain subservient. Crucially, though Mr. Ahluwhalia’s assaults were relatively few, his violence dominated the family and shaped Mrs. Ahluwhalia’s existence for decades. Mrs. Ahluwhalia was forced into a position of economic dependence to ensure she stayed in a marriage that robbed her of stability and agency.
The Tort of Family Violence
The tort of family violence appears to be both a welcome corrective and a useful tool for survivors of violence. In this case, its utility is straightforward: identifying the wrong and awarding damages has provided Mrs. Ahluwhalia with a cohesive path through the debris of her marriage, and the means of creating a new future. As explained by Justice Mandhane in her well-reasoned decision, the tort of family violence is intended to tackle the fear and helplessness resulting from the “cumulative harm associated with the pattern of coercion and control” in family violence cases (Ahluwhalia at para 54). Here, the court recognized the harmful effects of “complicated and prolonged psychological and financial abuse.” Justice Mandhane awarded Mrs. Ahluwhalia $150,000.00 in total: $50,000.00 in compensatory damages for her “ongoing mental health disabilities and lost earning potential;” $50,000.00 in aggravated damages resulting from breach of trust and the “overall pattern of coercion and control;” and $50,000.00 in punitive damages intended to send a message of “strong condemnation” for Mr. Ahluwhalia’s conduct (Ahluwhalia at paras 114, 119–120).
The components of the new torts are clear. First, the plaintiff must establish that the offending family member was violent in one of three ways. First, the family member may have been “violent or threatening” (in a manner consistent with assault or battery). Second, the family member’s behaviour could have been calculated to be “coercive or controlling.” Third, the family member may have engaged in conduct they “would know with substantial certainty would cause the plaintiff’s subjective fear” (Ahluwhalia at para 53). The key, for Justice Mandhane, is the coercive inescapability of family violence. Rather than relying on specific incidents, the plaintiff must demonstrate a pattern of conduct, including more than one incident of abuse (whether physical, psychological, emotional, financial, or sexual), threats, forcible confinement, stalking, harassment, failure to provide the necessities
of life, or killing or harming an animal or property (Ahluwhalia at para 55).
Second, if liability is proven, the plaintiff must provide details such that the nature of the violence—“circumstances, extent, duration, and specific harm”—can be used to determine appropriate damages (Ahluwhalia at para 57). Justice Mandhane widened the net even further, explaining that punitive damages “will generally be appropriate given the social harm associated with family violence” (Ahluwhalia at para 57). Aggravated damages, meanwhile, were deemed appropriate for situations involving negative post-incident conduct, betrayal of trust, or breach of fiduciary duty (Ahluwhalia at para 57).
Family Violence in the Divorce Act and Beyond
Justice Mandhane was bold, but not unique, in recognizing the tort of family violence. In other words, this is purposeful judicial activism at its most pointed and respectful. Family violence has been previously recognized as potentially tortious in various jurisdictions. In the Ontario case of Montgomery v Kenwell 2017 ONSC 3107 (CanLII), for instance, Justice Healey awarded a survivor $75,000.00 in damages for the “inter-spousal tort of assault,” while in Schuetze v Pyper 2021 BCSC 2209 (CanLII), a British Columbia trial judge calculated damages—to the considerable tune of nearly $800,000.00—for a single incident of intimate partner violence. Meanwhile, numerous courts in the U.S. have recognized “battered women’s syndrome” (Ahluwhalia at para 58) [1]. Justice Mandhane also situated the tort within Canada’s international law commitments—specifically, its ratification of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) (Ahluwhalia at para 69). Justice Mandhane pushed this burgeoning area of the law further by situating the new tort of “family violence” in long-term patterns of violence (rather than the singular incidents which are the focus of most other domestic violence torts) that affect the entire family.
It is worth noting that the largely positive response to the Ahluwhalia judgment is also likely due to its foundation in the common law and—somewhat surprisingly—in statute. As part of amendments made in 2021, the federal Divorce Act now addresses the complexity of violence and its ramifications. Section 2(1) defines “family violence” with startling breadth. Far from being limited to physical and sexual assault, violence is clarified as any behaviour that is “violent or threatening” or, significantly, “constitutes a pattern of coercive” conduct. Specific manifestations include financial and psychological abuse, threats, or harm to animals or property. In a sense, within the logic of the Divorce Act, specific behaviours—considered discretely—don’t matter. For both the Divorce Act and Justice Mandhane, the point of violence is the culture of fear it creates within that most intimate of refuges, the family. Thus, as Braelyn Rumble noted approvingly in "Ahluwalia v Ahluwalia: Putting a Cost on Family Violence in Divorce Proceedings," Mandhane’s delineation of violence “is consistent with the definition found in the Divorce Act.” This may even be an understatement: the wording of Ahluwhalia is faithful to the statute, but the case more profoundly emphasizes the dangerous significance of family violence within family dissolution.
Respecting Children’s Rights
Justice Mandhane was bold, but not unique, in recognizing the tort of family violence. In other words, this is purposeful judicial activism at its most pointed and respectful. Family violence has been previously recognized as potentially tortious in various jurisdictions. In the Ontario case of Montgomery v Kenwell 2017 ONSC 3107 (CanLII), for instance, Justice Healey awarded a survivor $75,000.00 in damages for the “inter-spousal tort of assault,” while in Schuetze v Pyper 2021 BCSC 2209 (CanLII), a British Columbia trial judge calculated damages—to the considerable tune of nearly $800,000.00—for a single incident of intimate partner violence. Meanwhile, numerous courts in the U.S. have recognized “battered women’s syndrome” (Ahluwhalia at para 58) [1]. Justice Mandhane also situated the tort within Canada’s international law commitments—specifically, its ratification of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) (Ahluwhalia at para 69). Justice Mandhane pushed this burgeoning area of the law further by situating the new tort of “family violence” in long-term patterns of violence (rather than the singular incidents which are the focus of most other domestic violence torts) that affect the entire family.
It is worth noting that the largely positive response to the Ahluwhalia judgment is also likely due to its foundation in the common law and—somewhat surprisingly—in statute. As part of amendments made in 2021, the federal Divorce Act now addresses the complexity of violence and its ramifications. Section 2(1) defines “family violence” with startling breadth. Far from being limited to physical and sexual assault, violence is clarified as any behaviour that is “violent or threatening” or, significantly, “constitutes a pattern of coercive” conduct. Specific manifestations include financial and psychological abuse, threats, or harm to animals or property. In a sense, within the logic of the Divorce Act, specific behaviours—considered discretely—don’t matter. For both the Divorce Act and Justice Mandhane, the point of violence is the culture of fear it creates within that most intimate of refuges, the family. Thus, as Braelyn Rumble noted approvingly in "Ahluwalia v Ahluwalia: Putting a Cost on Family Violence in Divorce Proceedings," Mandhane’s delineation of violence “is consistent with the definition found in the Divorce Act.” This may even be an understatement: the wording of Ahluwhalia is faithful to the statute, but the case more profoundly emphasizes the dangerous significance of family violence within family dissolution.
Family Law and the Puzzle of Child Support
But, bluntly: if the Divorce Act cares so profoundly about violence within families, shouldn’t it pay more attention to the wives and mothers who are overwhelmingly the victims of domestic abuse and intimate partner violence? And do survivors of family violence really need a new cause of action? Family law cases are already notoriously difficult for litigants to manage and understand. As Nicholas Bala, Rachel Birnbaum, and Peter Jaffe contend in “Establishing Canada's First Integrated Domestic Violence Court: Exploring Process, Outcomes, and Lessons Learned,” these difficulties multiply cruelly for families rocked by both divorce and family violence—families who must frequently grapple simultaneously with criminal charges and family law. Experiments like Toronto’s Integrated Domestic Violence Court, which offers a streamlined approach to criminal, family, and child protection law for applicable families, are doubtlessly practical. So, too, is the recognition of the tort of family violence. But these solutions are not yet widely available. (Realistically, they may not be in any foreseeable future, as this depends on whether combined courts are made available in other jurisdictions and whether Ahluwhalia survives its potential appeal.) How much simpler would it be for judges, lawyers, and defendants—and how much more just for plaintiffs, whom research shows disproportionately bear the costs and labour of dissolving violent marriages—if the Divorce Act took its focus on the harms of family violence to its logical conclusion and incorporated violence as a factor in spousal support settlement. In "Increasing Access to Family Justice Through Comprehensive Entry Points and Inclusivity," critics highlighted the decades-long existing access to justice issues in Canada’s family law system. Is now really the moment to make family law even more complicated (and thus inaccessible) for the system’s most vulnerable users?
While this change may seem monumental, it is congruent with how spousal support functions in the Canadian context. In its current permutation, the Divorce Act offers little concrete guidance on the issue of spousal support, instead directing courts to the Spousal Support Advisory Guidelines (which are silent on the matter of fault). In Section 15.1(5) of the Divorce Act, courts are specifically warned away from incorporating spousal fault or "spousal misconduct in relation to the marriage" in spousal support calculations. In practice, however, Canadian jurisprudence does not treat spousal support as a simple calculation severed from individual conduct or circumstance. In the wake of Moge v Moge, 1992 CanLII 25 (SCC) and the controversial Bracklow v Bracklow, 1999 CanLII 715 (SCC), the law on spousal support is far from settled. But it appears clear that courts are willing to employ what Jodi Lazare and Kelsey Warr referred in their article, “A Gender-Based Approach to Historical Child Support: Comment on Colucci v Colucci” as an “equality-based approach to gendered family law issues” that seeks to correct the “feminization of poverty.” Canadian judges do not assume that divorce creates a “clean break,” allowing both spouses immediate financial and social freedom. Instead, family courts are allowed, even expected, to recognize how entrenched roles related to childcare, household duties, and outside work create enduring imbalances in earning power and financial and social security that can take years, even decades—possibly a lifetime—to correct.
Nowhere are these imbalances more glaring and disparate than in the unions highlighted in the Ahluwhalia decision. Larger spousal support awards in divorces where family violence plays a significant role would not only follow juristic trends, they would reflect and meaningfully embody the very reasons for recognizing family violence under the Divorce Act. Enduring patterns of violence within marriage do not simply result in fleeting bruises: they create “true harms and financial barriers” that can be both pervasive and severely limiting for the survivors. It is no coincidence that Ahluwhalia echoes the Divorce Act in foregrounding the psychological and economic destruction wrought by spousal coercion. Mrs. Ahuwhalia is hardly the first wife pressured through “an overall pattern designed to condition and control” into long-term subservience, penury, and depression (Ahluwhalia at para 104). Indeed, her situation may be typical of marriages shaped by persistent abuse. If Canadian courts recognize and rectify (through spousal support) the disadvantages faced by the average wife and mother when she exits a marriage defined by traditional gender roles, then surely they must also forcefully offer succour to those women buried under the coercive terrors of a violent marriage.
The Divorce Act is correct, even insightful: violence affects everyone in a family and operates through fear. I contend that the Divorce Act must take its recent amendments seriously. The “best interests of the child” will be respected, and justice will be served in divorces shaped by family violence, when wives and mothers are granted the tools to substantively repair the trauma they have suffered and move forward with their lives. This is best achieved through spousal support awards that reflect the reality of family violence, as opposed to complex new torts that risk overburdening disenfranchised plaintiffs within an already convoluted area of law.
[1] For more detail, see Camille Carey’s article, “Domestic Violence Torts: Righting a Civil Wrong.”
[2] See, for instance, “Child Welfare Law, ‘Best Interests of the Child’ Ideology, and First Nations,” by Marlee Kim; and “Converging Queer and Feminist Legal Theories: Family Feuds and Family Ties,” by Elaine Craig.
[3] See, for instance, Nicholas Bala, Rachel Birbaum, and Peter Jaffe’s excellent aforementioned article, “Establishing Canada's First Integrated Domestic Violence Court: Exploring Process, Outcomes, and Lessons Learned”