21st September 2023

A Brampton judge misunderstood the law when she created a new legal path for survivors of intimate-partner violence to sue in civil court, the Court of Appeal has ruled, rejecting what had been hailed as a landmark decision.

Last year, in what was described by experts as a significant and unprecedented ruling, Superior Court Justice Renu Mandhane created a new tort of “family violence” in a decision that found a GTA woman was entitled to damages for a years-long pattern of abuse by her ex-husband.

Mandhane — who served as chief commissioner of the Ontario Human Rights Commission before her appointment to the bench in 2020 — concluded that existing torts largely focused on specific, harmful incidents in a relationship, but did not consider patterns of behaviour over the length of a relationship. (A tort is a civil wrong for which a person can sue and seek damages; the creation of a tort is rare.)

On Friday, a panel of three Court of Appeal judges unanimously rejected Mandhane’s decision.

The top court’s ruling — which described intimate-partner violence as a “pervasive social problem” but said sufficient remedies already exist — has been met with mixed reactions. Legal and advocacy groups expressed disappointment that the decision reopens what they see as serious gaps in the family court system. Meanwhile, one expert said the appeal judgment, which contains “a lot of wisdom,” stopped what would have been an overly broad expansion of family law.

The new tort created by Mandhane would focus “on long-term, harmful patterns of conduct that are designed to control and terrorize,” she wrote in her judgment last year.

She found that the couple’s relationship had been marked by a years-long pattern of physical and emotional abuse and financial control by the ex-husband, and that he was liable under the new tort of family violence. She ordered the man to pay his ex-wife $150,000 in damages.

The ex-husband appealed. He did not dispute before the top court that he was abusive during the marriage, and conceded that he was liable for damages, though not in the amount ordered by Mandhane. The judge had also found him liable in the alternative under the existing torts of assault, battery, and intentional infliction of emotional distress.

His lawyers argued that the new tort of family violence was “poorly constructed, too easy to prove” and would lead to a flood of cases entering the family court system — a change so significant that it should be left up to the legislature and not the courts, they argued.

At the very beginning of the 52-page appeal ruling, Justice Mary Lou Benotto made clear what the decision was and wasn’t about.

“The issue before the court is not whether intimate partner violence exists. It does. It is not about whether societal steps should be taken to ameliorate the problem. They should be,” she wrote.

“The issue is whether, in the context of family law court proceedings — where numerous and varied remedies already exist — a tort specific to ‘family violence’ should be created.”

She said that the creation of a new tort “is only appropriate when there is a harm that ‘cries out’ for a legal remedy that does not exist.”

Benotto, writing for the unanimous appeal panel which also included justices Gary Trotter and Benjamin Zarnett, concluded she would not recognize the new tort of family violence.

Regarding Mandhane’s reasons that it was needed to capture long-term patterns of conduct, Benotto wrote: “With respect, this statement reflects a misunderstanding of the law of existing torts. Existing torts already address patterns of behaviour, for both liability and damages.”

Benotto said Mandhane did not cite any previous cases to reach her conclusion that existing torts were too narrow to capture long-term patterns of behaviour. After the appeal panel consulted a number of cases itself, Benotto found that the existing torts of assault, battery, and intentional infliction of emotional distress actually do capture patterns.

“In summary, the trial judge’s concern that ‘long-term, harmful patterns of conduct that are designed to control or terrorize’ are not captured by existing torts is misplaced,” Benotto said.

The court reduced the man’s damages by $50,000, and also declined to recognize a more narrow new tort of coercive control, which had been proposed by the woman’s appeal lawyers.

One of the man’s appeal lawyers, Geoffrey Carpenter, said the “important decision” from the Court of Appeal was not about family violence directly, but rather about how the family court system should work and who should be responsible for reforms.

“The proposed tort of family violence would have fundamentally changed family law, and the Court of Appeal held that is the role of the legislature, not the courts,” he wrote in an email to the Star.

The woman’s lawyers did not return a request for comment.

Two organizations intervened on the appeal — Luke’s Place, a family law support centre for abused women, and the Barbra Schlifer Commemorative Clinic, a legal clinic serving survivors of intimate-partner violence.

They argued that Mandhane was correct, and that the existing torts do not address the “prolonged and compounding systemic abuse of trust and confidence within a relationship.”

While commending the top court for recognizing the pervasiveness of intimate-partner violence, the organizations expressed their disappointment with the final result.

The Schlifer Clinic said in a statement that the court “failed to address the gap in the law.” Luke’s Place said the tort “was an important development in the law that had the potential to benefit many survivors across the province,” and had been crafted with survivors in mind.

The top court was trying to “prevent an influx of spurious or exaggerated claims” from entering the family court system under an expansive new tort, said Queen’s University family law professor Nicholas Bala, who described Benotto as a “highly respected” former family lawyer and family court judge.

A significant takeaway for Bala was that the Court of Appeal made clear that existing torts do take into account patterns of abuse, and not just specific incidents.

“I think there was a lot of wisdom in the Court of Appeal’s decision,” he said.

“I think the courts are taking family violence seriously, but it’s a question of balance, and I’m not uncomfortable with the balance that the court took. I don’t view it as a retreat from the willingness of the courts to deal with family violence.”


Conversations are opinions of our readers and are subject to the Code of Conduct. The Star
does not endorse these opinions.