Introduction
In 2024, the Supreme Court of Canada granted leave to appeal in the matter of Ahluwalia v Ahluwalia. This case found its way to Canada’s highest court via Justice Renu Mandhane’s precedent setting decision at the Ontario Superior Court of Justice, which was then overturned by Justice Benotto writing for a unanimousCourt of Appeal for Ontario. Calling out the negative impact and prevalence of family violence in our society, Justice Mandhane’s 2022 decision1 established a new avenue for survivors to seek both recognition of their experiences and corresponding damages, namely the Tort of Family Violence. The Court of Appeal similarly acknowledged the insidious nature of family violence and its impact on our society, but ultimately determined that a new tort was unnecessary, given the existing remedies available.
Here is the question that the highest court in Canada will now grapple with: can and should a new tort of family violence, separate and distinct from the existing torts, be recognized?
In this appeal, accessing justice requires the provision of a path for survivors to address the harms that have been inflicted via the recognition of a tort that properly incorporates all the varied acts and behaviours that constitute family violence.
Justice Mandhane’s trial decision found that the Ahluwalia marriage was characterized by a 16- year pattern of the Applicant father’s abuse and coercive control of the Respondent mother. In recognizing the new tort, Justice Mandhane found that “the existing torts do not fully capture the cumulative harm associated with the pattern of coercion that lays at the heart of family violence cases which creates conditions of fear and helplessness.” By distinguishing family violence in the context of coercion and patterns, Justice Mandhane defined this tort as distinct from the existing torts of battery, intimidation, and assault, and therefore a necessary addition to family law.
The Court of Appeal viewed things a little differently, writing that “when remedies already exist, a new tort is not required.”2 and that “existing torts already address patterns of behaviour for both liability and damages.” 3 Justice Benotto reversed Justice Mandhane’s finding and declined to uphold the tort of family violence.
Since then, the Respondent Kuldeep Ahluwalia has sought and obtained leave to the Supreme Court of Canada. At the time this article was drafted, more than a dozen potential intervenors have sought leave to intervene, including the Barbra Schlifer Clinic and Luke’s Place, who had also intervened at the Ontario Court of Appeal. Added to the list of intervenor applicants are South Asian organizations, the Registered Nurses’ Association for Ontario, women’s advocacy groups and shelters from various provinces, and international rights organizations. The main concerns are resounding: do we, as Canadians, understand how family violence is experienced? What factors influence these understandings? Whose voices should be heard? How will the tort of family violence denounce, deter, and compensate for the experiences of survivors?
What is clear is that there is a deep national interest in ensuring that the voices of survivors of intimate personal violence are heard, protected, and able to access to justice. Justice Mandhane’s decision in Ahluwalia threads together legal reasoning, the facts of the case, and relevant social science. Justice Benotto doesn’t disagree with incidious and pervasive nature of intimate partner violence, writing in her opening paragraph, “Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.”4
The question before the Supreme Court is not whether family violence exists, rather, how can justice be effectively accessed by survivors? Digging deeper into the access to justice argument for just one moment, about a decade ago when I started expanding my family and child protection practice, I began hearing the phrase “litigation drift”. I had never heard this concept in law school or during my articles, yet it had made its way into the analysis applied to routine adjournments, disclosure obligations, and trial date settling. There were no more open-ended adjournments or endless extensions to file or amend documents; rather, the Courts wanted to move matters forward, to avoid having parties and their legal needs remain adrift at sea.
My Boolean search of the term “litigation drift” in Canlii revealed a plethora of cases in child protection and family law, starting to emerge in the jurisprudence about a decade ago. Courts remarked on where, when, and potentially how litigation drifted in their cases; particularly when dealing with cases that are driven by statutory timelines like child protection law. Examples included adjournments, too much case management, or parties bringing up new issues between adjournments.
A bird’s eye view of the lifespan of a file as it progresses through the justice system provides answers to bigger policy questions. How is a party using the process of litigation to their advantage, and to the emotional detriment of the opposing party? How has this litigation moved from point A to point Z? A straight and predictable line, or an expensive, unpredictable rollercoaster? And so with the concepts of litigation drift and litigation abuse comes a third issue: enhancing Access to Justice, a concept that plagues legislators, policy makers, the judiciary, lawyers, litigants, and court support.
Ahluwalia: Litigation Lost at Sea
The “drift” criticism, and its related litigation abuse and access to justice arguments, find footholds in the arguments of the parties and intervenors in Ahluwalia. The concern shared by critics are for the “long-term litigation effects of the decision.” If the law allows for increasing types of damage claims in family law, litigation may be protracted. The prediction: longer, draw out, costly trials that are unpleasant and don’t address the real issues at hand.5 Additionally, and as pleaded by Mr. Ahluwalia, access to the family law tort regime would only belong to the wealthy who could afford the type of litigation that critics are worried the floodgates will bring in with the potential tort of family violence.
The underlying premise of Mr. Ahluwalia’s argument is that the family law justice system is in crisis and that adding the tort of family violence will only serve to exacerbate the existing delays. A legal system that is already sinking under its own weight could also become that much more overburdened and understaffed if family law litigation became encumbered by tort law.6 Access to justice in civil disputes is described as “fleeting” and the criminal justice being subject to Jordan delays. Family law will also fall into this disarray if the tort of family violence is allowed, and litigation will drift without a compass or steering, up the river without a paddle as the saying goes.
Setting the Drift Critique on Course
The appellant Mrs. Ahluwalia and intervenors have taken the litigation drift argument head on, and have provided reasons why there is no need for hand wringing on the issue. With complex and ever changing sets of rules, both statutory and common law, parties to family law litigation can and will benefit from a centralized location of services. Her factum argues that it is rare for tort litigation to be argued in any of its existing discrete forms, (assault, battery, intentional infliction of mental distress), because the caselaw is disorganized, convoluted, and fact specific. This frustrates the ability of survivors to access damages in torts in the family forum. This is particularly the case for self-represented parties to litigation, such as Mrs. Ahluwalia at the trial level. 7
The floodgates argument put forward by the Respondent Mr. Ahluwalia is a “canard;” a red herring, so to speak. By being able to assert all of their legal issues arising from the same factual circumstances and the same parties within one court and in one proceeding, family law litigants would have a one stop shop to seek redress instead of having to seek relief in a civil court with judge 1 and then a family court with judge 2. Justice Mandhane writes, “Allowing a family law litigant to pursue damages for family violence is a matter of access to justice. It is unrealistic to expect a survivor to file both family and civil claims to receive different forms of financial relief after the end of a violent relationship.”8 Survivors could be spared having to relitigate facts and relive their trauma, they won’t be subject to conflicting or inconsistent decisions on the same set of facts, and can avoid duplication and delay.9 The ability to plead discrete torts in family law like the Tort of Assault or Intentional Infliction of Emotional Distress within family court proceedings are current examples of a streamlined process in action. A new tort of family violence addresses the insidiousness of coercive control, addressing pervasive stereotypes about family violence, its impact, and appropriate forms of financial redress.
With the right navigation tools, family law litigation that includes the Tort of Family Violence won’t drift, it will be a cruise ship on a set course with a strong and knowledgeable crew.
By: Neha Chugh, Criminal, family, and child protection lawyer in Cornwall
- Ahluwalia v Ahluwalia 2022 ONSC 2169
- Ahluwalia v Ahluwalia 2023 ONCA 476 at 51
- Ahluwalia v Ahluwalia 2023 ONCA 476 at 60
- Ahluwalia v Ahluwalia 2023 ONCA 476 at 1
- Respondent Factum, Ahluwalia v Ahluwalia, Supreme Court of Canada at paragraph 1139, also https://www.mpllp.com/the-argument-against-new-tort-of-family-violence;
- Respondent Factum, Ahluwalia v Ahluwalia, Supreme Court of Canada at paragraph 148, also https://www.mpllp.com/the-argument-against-new-tort-of-family-violence;
- Appellant Factum, Ahluwalia v Ahluwalia, Supreme Court of Canada at paragraph 50