BACKGROUND

The parties were married in 1999 and separated in 2016.

The wife brought an action for statutory relief, including divorce, child support, spousal support, and equalization. She also claimed damages for the husband’s abusive conduct during their marriage.

For the abuse claim, the wife referred to specific incidents of abuse. The trial judge found that these incidents constituted a pattern of physical and emotional abuse, which were intended to condition and control the wife. She also determined that the husband had complete financial control over the wife, rendering her completely dependent on him.

The trial judge found that the existing torts were inadequate to cover situations where there is a pattern of abuse, so she established a new tort of “family violence” and awarded the wife $150 000 in damages.

The husband appealed the creation of this new tort, under which he was found liable. The wife agreed that a new tort was necessary and proposed a narrower tort of “coercive control.”

ISSUES

1. Did the trial judge err by including a tort claim in a family law action?
2. Did the trial judge err in establishing a new tort of “family violence” within the family law context?
3. Should the court recognize the tort of “coercive control”?
4. What is the procedure for a court considering a tort claim in family law?

ANALYSIS

1. Can a tort claim be included in a family law action?

Courts have historically recognized including a tort claim in a family law proceeding, and a claim for intentional infliction of emotional distress during a marriage may be claimed. Thus, a tort claim may be made in a family law proceeding.

2. Did the judge err in establishing a new tort of “family violence” within the family law context?

New torts may be created in situations where the common law fails to address the impugned conduct or when there is a gap in the law. However, new torts are not required when remedies already exist, nor are they required when the only difference from pre-existing torts and the proposed new one is the amount of damages. In other words, the new tort must be necessary to address the wrong.

The ONCA found that the trial judge’s findings of fact satisfy the requirements for the torts of battery, assault, and intentional infliction of emotional distress, all of which apply in this case.

The ONCA ruled that the trial judge’s emphasis on the existing torts solely on individual instances rather than on a pattern of behaviour (as is the case here) is an error because the trial judge made this decision without relying on any jurisprudence. In fact, courts have previously considered behavioural patterns spanning long periods of time where intimate partner violence exists without limiting their focus on individual incidents. For example, courts have awarded higher damages where a pattern of abuse exists, and non-tortious conduct may become tortious if it is repetitive and cumulative in nature.

Thus, the judge erred in creating a new tort.

The ONCA went on to say that even if it was necessary to create a new tort, the trial judge’s reliance on the definition of “family violence” found in the Divorce Act was an error, because this definition is only meant to apply to parenting orders instead of being used to create a new tort.

3. Should this court recognize the tort of coercive control?

The wife submits that unlike the tort of intentional infliction of emotional distress, a tort of coercive control would not require the claimant to show proof of actual harm; instead, it would require the claimant to show that the defendant calculated to cause harm.

The wife submitted that the tort of intentional infliction of emotional distress focuses on specific facts and behaviours instead of the underlying context and pattern of abuse and control. However, the ONCA found that this tort addresses the context and patterns of behaviour that caused harm in its analysis.

Thus, the ONCA did not recognize coercive control as a tort because (1) the tort of intentional infliction of emotional distress provides an appropriate remedy for the conduct; (2) the wife already proved actual harm, so it is inappropriate to create a new tort based on a hypothetical; and (3) the removal of the requirement to prove harm would have significant effects on family law in that it would become more combative and less focused on resolution.

4. What is the procedure for a court considering a court claim in family law?

If claims are written out in a statute, such as child support and spousal support, courts should address those before assessing liability and damages for tort claims.

CONCLUSION

The ONCA ruled that it was unnecessary to create a new tort of family violence, thus overturning the trial judge’s decision. The ONCA also rejected the Respondent’s argument for establishing a tort of coercive control.