No-fault divorce? Not anymore.

Prior to 1968, divorce was strictly fault-based. Parties wishing to be divorced had to get a private act passed in Parliament to obtain a divorce. The most common ground was fault-based, proof of adultery. The Divorce Act of 1968 changed much of this and introduced divorce based upon a permanent breakdown of the marriage. However, the fault-based grounds of adultery and cruelty continued. As permanent breakdown of the marriage required lengthy separation periods, claims for divorce based upon fault were faster and continued to be used. The Divorce Act of 1985 reduced the breakdown period necessary for divorce to one year and was said to be aimed at reducing costly and bitter court battles. After this Act was passed, we spoke of no-fault divorce. I dare to say no serious family lawyer would speak of “no-fault” divorce today. In fact, just the opposite. Please don’t pummel me with emails pointing out the obvious. Yes, divorce continues to be no-fault but the rest of it hardly is. We have gradually drifted back to an era where matrimonial misconduct is centre stage. Let the battles begin. Tort is the new frontier of family law. As someone who devoted years and hours of my time to presenting continuing educational programs for Osgoode PD, I find that byline disgusting. That does not mean that matrimonial misconduct crossing the line into tortious conduct should be ignored or go unpunished. Instead, it means that we family lawyers should not relish such a return to fault-based litigation. Memorializing such conduct cannot possibly be in “the best interests of children,” a priority we are to live by. I am like the retired general who hates war. I have seen matrimonial war in our courts, and I dread the return that is surely well underway. “Tort claims are the new frontier in family law.” I hate it. For many years, leaders of our family law bar sought to lower the conflict level in matrimonial disputes. The Family Law Rules were a great step forward, especially those focused on the primary objective. Creative thinkers attempted to standardize the supporting affidavits for motions in an effort, unsuccessful, to eliminate wild unprovable allegations, hyperbole and exaggeration that presently file our affidavits (I openly admit to this stupidity at times). Court conferences were introduced to steer matters away from lengthy court battles. Most of our judges now are truly and sincerely committed to move matters to settlement rather than lengthy trial. Mediation has gained in prominence and in earlier writings I have advocated for mandatory mediation in some family law matters. I question how meaningful mediation fits into this “new frontier.” I hate it. I do not claim that torts were never part of the family law process. I have successfully litigated several cases including claims for damages for assault and/or battery. But over the past decade, further torts have crept into our process. The tort of inclusion on seclusion was introduced and conspiracy is now popular. But now comes the ultimate tort in family law, intimate partner violence. Whenever I write of my concerns about Ahluwalia, I worry that in doing so, some may think I am ignoring or minimizing the seriousness of the problem of intimate partner violence (IPV). Never! 9/14/26, 1:18 PM No-fault divorce? Not anymore - Law360 Canada https://www.law360.ca/ca/articles/2524734/print?section=ca/family 1/2 However, my whole career has been spent in family law and much of it litigating claims. I have seen how the combination of inadequate judicial resources, government neglect of our courts, too few judges and overworked staff have resulted in horrendous backlogs and delays. Trust me, you haven’t seen anything yet. The Osgoode PD will fill with eager lawyers urged on by eager clients to amend pleadings or start new claims for IPV. Trials that took a week will take two. Trials will be filled with claims, counter claims, allegations, and counter allegations. We are recently told that public policy supports the introduction of secretly obtained recordings as admissible evidence in these cases (see Mitchell v. Mitchell, 2026 ONSC 4259). I mean no disrespect, but there is a long line of cases to the contrary (start with the Court of Appeal in Sordi v. Sordi, 2011 ONCA 665 and more recently Van Ruyven v. Van Ruyven, 2021 ONSC 5963 and Auciello v. Auciello, 2023 ONSC 2266). Yes, I understand that these cases were not IPV claims, but the policy of discouraging the use of such evidence permeates family law. Further, damages assessments in tort are difficult. Punitive damages were awarded in Mitchell even though the offending party had been punished in criminal proceedings for the same offences. Egregious conduct by the offender is necessary to support such punitive damages. A claim for same will require significant evidence to support the award. Again, more witnesses, more trial time, more memorialization of the offending parent’s conduct. No, the sky is not falling, but we are truly heading in the wrong direction. There must be other and better ways to address the problem of IPV. Filling our courts with such claims is not the “new frontier,” it is the “wrong frontier.”