The Tort of Family Violence: New relief available for victims of family violence.

• Author: Maillet, Mathieu

Reading Time: 4 minutes

In 2022, the Ontario Supreme Court applied a new tort of family violence that recognizes the complex dynamic of violence within a relationship.

The new tort of family violence represents another step forward in Canadian courts' ever-changing views of how to address violence in family matters. To understand this tort and its importance, we must first appreciate how Canadian family law once refused victims of family violence the opportunity to claim damages through tort law as part of their family matter. Now, this completely new tort allows victims to pursue damages directly in response to violence experienced during a relationship.

What is tort law?

Before diving into this new tort, let's review what is tort law. It is a civil law claim that allows victims "of a wrong to seek a remedy from the person who injured" them. The remedy is normally money, called damages.

A timeline of torts in family law

In their 1987 decision of Frame v Smith, the Supreme Court of Canada was hesitant to extend remedies in tort to victims who sought relief after experiencing family violence. They feared that doing so would "fashion an ideal weapon for spouses whose initial... objective, is to injure one another".

Despite the Court's hesitance to allow relief through tort law, it did consider family violence when resolving family law disputes. For example, the Supreme Court of Canada in their 1996 decision of Gordon v Goertz stated that the "threat or fear of violence to the custodial parent or the child" could be reason for moving a child's residence without first providing notice to the non-custodial parent.

In time, courts began allowing family members to claim traditional violent torts such as assault and battery within family matters. Courts started with small damage awards and increased them over time. Now the damages reflect those granted under the general principles of tort law. In the 2017 decision of Montgomery v Kenwell, counsel argued for higher damages and the Ontario Supreme Court agreed. The Court granted a damage award of $75,000 for assault that occurred during a marriage.

In 2019, the Canadian Parliament announced amendments to the Divorce Act, which came into effect in 2021. For the first time, the Act explicitly defines "family violence" as:

any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern...