Gary Joseph | July 2023

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

 I often tell my colleagues that I have notational bruises all over my body and my ego from my many appearances in the Ontario Court of Appeal (by the way, the Alberta Court of Appeal has also levelled multiple blows to my quite resilient ego). With great respect, I find myself at times totally disagreeing with various appeal decisions; however, when the Appeal Court nails it, I feel compelled to speak up. Nail it they did in the Ahluwalia v. Ahluwalia, 2023 ONCA 476 decision.

A busy week of court ended for me last Friday with the welcome receipt of the decision in the highly contentious appeal of the decision of the Superior Court of Justice in Ahluwalia v. Ahluwalia, 2022 ONSC 1303. The lower court had created the tort of domestic violence. The very well written and practical 50 pages of the Appeal Court decision was a quick and enjoyable read. To my mind the Appeal Court covered all the necessary bases while still recognizing the need to condemn domestic violence and preserve a significant damages award against the offender.

In overturning the part of the lower court decision that created the torts of domestic violence and coercive control, Justice Mary Lou Benotto writing for the unanimous court, found that new torts should not be created where existing torts suffice. She concluded that the lower court had created a new tort which was not required. Further the justice referenced the fairly recent amendments to the Divorce Act (and the Children's Law Reform Act) that integrated the concerns with domestic violence in the context of parenting determinations but chose (by obvious omission, in my view) not to introduce the concept of a tort to address such abhorrent conduct. This is a recognition that the elected members of Parliament are better left to the creation of new laws. However, Justice Benotto does not reject the idea of courts creating new laws but, in this case, saw no need for same.

The first two paragraphs of the decision make it clear that the court, and society as a whole, should take all steps necessary to ameliorate intimate partner violence but not in circumstances where "numerous and varied remedies already exist." The court concluded that existing torts properly applied were available to address the harm suffered. Those upset with the decision may find some comfort in Justice Benotto's comments commencing her analysis of the issues. I quote: "It is axiomatic that intimate partner violence must be recognized, denounced and deterred."

I am sure that view is shared by the bar and the bench at large. However, no matter how compelling the issue, constraint and respect for existing jurisprudence is recognized and affirmed by the Appeal Court. I take comfort in that fact.  

Gary S. Joseph is the managing partner at 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.

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