Gary Joseph | May 2024

This article was originally published by Law360 (www.law360.ca), part of LexisNexis Canada Inc.

On May 16, the Supreme Court of Canada granted leave to appeal the July 2023 decision of the Court of Appeal of Ontario in the matter of Ahluwalia v. Ahluwalia, 2023 ONCA 476. You will recall that at trial (Ahluwalia v. Ahluwalia, 2022 ONSC 1303), the court awarded $100,000 in compensatory and aggravated damages for the new tort (created by the court in this case) of family violence. The appeal court allowed the appeal in part, reduced the damages award and refused to recognize the new tort.

Some years ago, I was counsel for a woman badly beaten by her husband before the eventual breakup of the marriage. We carefully marshalled her evidence, presented hospital records, called her doctor to testify and convinced the trial judge to award damages for assault as part of the final disposition of the case. Unfortunately, the monetary award was, in my respectful view, nominal at best and not reflective of the misconduct she had endured. I was upset, but my client did not want to appeal. I still can see in my mind pictures of her badly bruised face and torso (among other injuries she suffered).

When the trial decision in Ahluwalia came out, my first reaction was positive, thinking back to my trial experience described above, but with more contemplation and, respectfully, I became troubled by the creation of this new tort. Before my inbox fills with angry emails, let me explain. Family violence of any kind and any degree is abhorrent, and we must all work together to reduce or stamp it out wherever possible. My concern with the creation of the new tort lies more with the long-term litigation effects of the decision. I have written before on this subject. In an era when we want to reduce high-conflict family law litigation, adding this tort, in my view, increases the likelihood of longer and nastier family law trials while doing little to address the real problem.

When the Court of Appeal refused to recognize this new tort, I (somewhat bravely if I may humbly say so) praised the decision. I say somewhat bravely as I took some pretty serious verbal and email attacks for this position. I stand by that view today. I regret that the Supreme Court of Canada has allowed the leave application but will follow closely the appeal. I strongly support added resources, educational programs and criminal consequences for those who perpetrate intimate partner violence. Much more needs to be done by us as a society to shed light on the problem and root it out. However, I do not see the family law courts as the means to do so. As with the fairly recent amendments to the Divorce Act recognizing domestic violence, these developments put family lawyers to the task of pleading and proving (to the civil standard of proof) allegations of abuse. Not that earlier litigation was devoid of the same. But now more than ever — and if the new tort is recognized by the Supreme Court — an obligation and a greater willingness to plead and take to trial these matters will exist.

I fear five-day trials will become 10-day trials. Victims of this unspeakable behaviour will be forced to relive their abuse and be subject to cross-examination. Already damaged families will be further torn asunder. As with many of my personal views, I do not see our courts as the prime venue to address social change. Yes, they are an important cog in the wheel of social change, but we need to assume responsibility elsewhere. Governments at all levels, our educational system and parents raising young children all have a role to play. That is where change will happen.

Claims for damages are binary in nature. By that I mean they do not lend themselves to compromise results, which are the heart of family law disputes. There is an accused and an accuser. There is little middle ground. How does one mediate such disputes? As someone who has made a career out of trial and appellate advocacy, I am like the general who hates war. More damages claims for domestic violence means more, not fewer, family law trials. Our family law courts are already overburdened, understaffed and without enough judges. How will they cope with the added demands?

Addendum: I acknowledge the views expressed do not recognize the respective legal arguments to be presented. I have approached this issue more from a policy perspective. Other counsel will debate the matter both from a legal and policy perspective in the Supreme Court. I will be a keen student of that process.

Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

The opinions expressed are those of the authors) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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