Judge awards damages for ‘family violence’ in historic case

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Adam N. Black: Court gave life to new tort of family violence that addresses the cumulative impact of an abusive marriage

The Ontario Supreme Court recently ordered a husband to pay his ex-wife $150,000 in damages for physical and psychological abuse. The Ontario Supreme Court recently ordered a husband to pay his ex-wife $150,000 in damages for physical and psychological abuse. Photo by Getty Images/iStockphoto Files

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In a landmark decision, an Ontario court recently ordered a husband to pay his ex-wife $150,000 in damages for the physical and psychological abuse she endured during their 17-year marriage. In pronouncing the award, the court gave life to a new tort, or civil wrong, of “family violence” that addresses the cumulative impact of an abusive marriage.

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In the Ontario Superior Court of Justice Justice Renu Mandhane case, the parties had met in 1999, married shortly after, and welcomed their first child 18 months after marriage. After their immigration from India to Canada in 2001 and 2002, both sides worked in a factory, alternating day and night shifts, to care for their first child and make ends meet. In 2004, their second child was born.

During the relationship of the parties, the woman often became a victim of serious physical attacks. According to Judge Mandhane, the “common pattern was that the father would become irrationally jealous, drink, engage in verbal quarrels and then beat the mother”.

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During the trial, the mother’s stories about the physical attacks were deeply disturbing. They include numerous attacks over several years, including being punched ‘black and blue’, ‘beaten hard’, shaken, beaten and strangled. After the violent episodes, the father often subjected the mother to weeks or months of silent treatment that ended only after the mother complied with the father’s demands for intercourse.

The father’s violent behavior was also psychological. He kept a close eye on the mother’s expenses and monitored the family’s finances. The father belittled and insulted the mother and repeatedly threatened to leave her and the children destitute. The father followed up on his threat when he abandoned the mother and children in 2016. At that point, he closed the parties’ joint accounts and canceled the credit card the mother used to buy groceries. The father did this despite the fact that the mother was “financially completely dependent on him,” something the father admitted.

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During an 11-day trial, Judge Mandhane was asked to determine the mother’s claim for “general, exemplary and punitive damages for the physical and mental abuse” resulting from the father’s violent behavior. The father believed that the mother’s claims were based on three specific cases of assault and emotional abuse, both of which are existing tort claims. Conversely, it was the mother’s view that it was a general pattern of abusive and coercive and controlling behavior that gave rise to her claims and that the specific instances of abuse were examples in a broader matrix.

Judge Mandhane agreed with the mother and in doing so penned a new tort called family violence. In recognizing the new tort, Judge Mandhane specifically took into account recent changes to the Divorce Act, which applies in all Canadian provinces and territories. According to Justice Mandhane, those changes, which came into effect in 2021, “explicitly recognized the devastating, lifelong impact of family violence on children and families.”

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Despite the changes, Justice Mandhane noted that the legislation did not address all of the legal issues raised by a domestic violence allegation.

“At its core, spousal support is compensatory rather than debt-driven. As such, spousal support awards are not intended to disapprove of particularly egregious behavior during the family relationship that calls for aggravating or punitive damages,” she wrote.

In fact, the Divorce Act makes it clear that a judge cannot take a spouse’s misconduct into account when issuing a spousal maintenance order.

Judge Mandhane continued, noting that the Divorce Act “does not provide a direct opportunity for a victim/survivor to obtain reparations for damages arising directly from domestic violence that go beyond the economic consequences of the marriage…. (The) culpable nature of family law must give way when there are serious allegations of domestic violence that cause independent and useful harm that cannot be compensated by the award of spousal maintenance.”

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The judge filled the gap in the legislation by recognizing the new tort of family violence and went on to draft a test to assess whether damages should be awarded. Specifically, damages may be awarded for conduct by a family member in a family relationship that 1) is violent or threatening, or 2) forms a pattern of coercive and controlling behavior, or 3) causes the family member to fear for their own safety or that of another.

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Justice Mandhane acknowledged that the tort of domestic violence likely overlaps with existing torts, but said there were unique elements that justified a unique cause of action.

“Existing wrongs do not fully encompass the cumulative harm associated with the pattern of coercion and control that lies at the heart of domestic violence cases and creates the conditions of fear and helplessness,” she wrote in her ruling.

According to Judge Mandhane, the $150,000 award consists of $50,000 in compensatory damages “related to the mother’s ongoing mental health problems and lost earning power,” plus $50,000 in aggravated damages “as a result of the general pattern of coercion and control and the father’s apparent breach of trust” plus $50,000 in punitive damages since the father’s conduct “requires a strong conviction.”

It is not yet known whether the father will appeal the ruling.

Adam N. Black is a family law partner at Torkin Manes LLP in Toronto.

ablack@torkinmanes.com

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