Something is off.
I have been thinking about domestic violence and asking myself this question: As a society, are we making any progress in dealing with this plague? My approach to searching for an answer has been informed primarily by my 45 years in private practice, (where my clients have been both perpetrators and victims of such violence), and also by the years I spent as Senior Counsel in Policy Development with the Ontario Ministry of the Attorney General, where I worked on, among other things, the creation of the Family Responsibility Office (FRO), the passage of the Family Law Act, amendments to the Children’s Law Reform Act, and the introduction of mediation to family law.
So, how are we doing?
Consider the following:
- In 2022 -23 emergency shelters in Ontario served 11,545 women and their dependents. That is more than the entire population of small towns like Smith Falls, Hawkesbury, or Arnprior. ( I’m partial to the Ottawa Valley and area as that is where I started out in practice 45 years ago,)
- Those appalling numbers are down somewhat from the 17,864 souls who had need of support in 2017-2018.
- Those women and their dependants were using approximately 2,335 shelter beds in 2017-18, a number that fell a little to 2,018 shelter beds in 2022-23.
- These numbers are actual users and do not account for those turned away.
- These shelter supports are provided by the Ministry of Children, Community and Social Services through a program called Violence Against Women (VAW).
- In 2022- 2023 that program cost a whopping $93 million.
- In August 2024, the same Ministry announced that the Ontario government will be investing in “New Supports to Address Gender- based Violence.” Cost? $100 million over 3 years.
- That money will be on top of “pre-existing investments” over 4 years of $1.4 billion in addressing gender-based violence. That is correct - it says billion.
- In addition, Ontario has a $162 million agreement with the federal government through the National Action Plan to End Gender Based Violence.
- The Ontario government budget for the Family Responsibility Office (FRO) in 2023-24 was $45 million. Over 20,000 FRO clients are vulnerable and on social assistance because their spouse refuses to or cannot pay child /spousal support.
- In 2023 Ontario spent TWICE AS MUCH on 2,018 shelter beds as we did on collecting support for families who need that money to pay, in part, for shelter.
Ontario taxpayers are spending billions of dollars to deal with the consequences of domestic violence. I repeat - billions on the consequences of the violence.
On my careful reading of the above facts, I have drawn the following conclusion - Something is off here. Seriously off.
So back to my opening question - are we making progress? I would say no, a resounding no.
Let’s turn now to an examination of two of the tools being proposed to stop the actual violence. In particular, consider the proposed amendments to the Criminal Code (Formerly Bill C-332) which seek to criminalize coercive control of an intimate partner, and the Supreme Court of Canada’s upcoming consideration of a new tort, the tort of family violence.
A New Tort for Family Violence?
A new tool was “created” in an attempt to deal with the violence in Canadian families - a “tort of family violence.” This concept has entered recent family law discourse in part as a result of the Ontario trial decision of Madam Justice Mandhane in Ahluwalia v. Ahluwalia (2022 ONSC 1303), in which she awarded considerable damages under the heading of this new tort.
After a detailed review of her trial reasons, the Ontario Court of Appeal disagreed with her expansion of tort law, finding it unnecessary. Leave to appeal to the Supreme Court of Canada was granted, the parties and intervenors have been heard. Many hail this new tort as a much-needed help for victims of domestic abuse. As of this writing we are awaiting the Supreme Court of Canada’s decision.
I have long been an advocate of advancing claims for financial compensation for abuse along with standard family law claims. For over 30 years I have been recommending in my book Surviving Your Divorce: A Guide to Canadian Family Law (now in its 6th edition) that victims of abuse not only consider civil claims in tort but also applications to the Criminal Injuries Compensation Board. A body of law has been growing and compensation is being awarded. Witness Schüetze v. Pyper, 2021 BCSC 2209 and the award of $795,029 for violence in an intimate relationship.
In order to understand the formulation of the new tort at trial, we need to take a closer look at some of the peculiar twists and turns of the Ahluwalia case, and where it threatens to take us.
Not wealthy people, the parties fought about the usual issues: custody of two kids, support and property. The husband 48 and wife 47 at the time of separation, had emigrated to Canada from India in 2001 and 2002 respectively, just a couple of years after their marriage in India. They are described as being highly educated. He had trained as a lawyer and she had various degrees, was a teacher and had even been a talk show host.
When they separated in 2016, after 16 years of marriage, the equity from the sale of their home was $326,680. The husband’s business had a value less than the cost of most business valuations, a mere $16,950. For some reason they could not agree on their respective incomes even though the evidence ultimately showed that he earned a modest $86,000 and she, found to be intentionally under employed, had a mere $30,000 of income imputed to her.
He had a lawyer throughout. She had counsel for a few years, but then in 2019 after three years of litigation, like thousands of people in our family law system, she started to self-represent.
One year into the litigation but while counsel for the wife was involved, there were interim consent orders made by two extraordinarily strong Superior Court judges, Justices Van Melle and Justice Lemon. There were orders for joint parenting decision-making, weekend parenting time, the sale of the home and child support. To all outside appearances the case looked routine and likely to resolve with a split of the equity in the home, a custody arrangement and child and spousal support. Poorer, they would go their separate ways and somehow try to start over in the then fierce GTA housing market.
But then something happened. The litigation took its first dramatic turn, when the wife began to self represent.
On March 17, 2021, the wife - after 5 years of litigation and now self-representing - was permitted to amend her pleadings seeking general, exemplary and punitive damages for physical and mental abuse. The wife did not plead the tort of family violence. She did not plead assault, nor battery, nor emotional distress, nor intentional infliction of emotional distress. She simply asked for damages for abuse. Her husband vehemently denied the allegations.
Then the matter took another unexpected turn.
Six months after the amendments to her pleadings, on September 7, 2021, and now 5 years after their separation, the husband was charged with criminal offences for assaults that occurred prior to separation. As of the family trial before Justice Mandhane, those charges had not been dealt with in criminal court.
In early 2022 these two people of very modest means, one unrepresented, then had an 11-day trial in Brampton’s Ontario Superior Court before Justice Mandhane, now some 6 years after they had separated.
What follows is an overview of the evidence of the abuse Ms. Ahluwalia suffered at the hands of her husband:
- there were three serious physical assaults, one 22 years previous in 2000 (before they arrived in Canada), one in 2008 and one in 2013. These assaults included punching, slapping and resulted in one case of her being “black and blue” from bruising.
The wife testified that:
- There was a pattern to the abuse. The husband would become irrationally jealous, drink, engage in verbal arguments and then beat the wife.
- There was also a pattern of controlling and coercive behaviour, psychological abuse, insults, belittling, threats to leave, controlling of finances, silent treatment and sexual demands.
- The wife suffered physically, psychologically and emotionally in this marriage.
At the conclusion of the trial Justice Mandhane invited written submissions to be centered around a series of questions. The submissions would be from a woman self-representing and a lawyer for the husband. Notwithstanding the wife having not pleaded a tort of family violence, nor even other civil torts, Justice Mandhane posed two, dare I say astonishing leading, questions:
Is there a tort of family violence in Canadian law?
If not, should such a tort be recognized by the court?
In her decision, Justice Mandhane appears to have brought to bear her past experiences and activism as Chief Commissioner of the Ontario Human Rights Commission and possibly the fact that her own parents had emigrated to Canada from India. Over 200 paragraphs later and after a very extensive review of everything from Canadian tort law to U.S. case law and literature to United Nations Conventions we are given the following “I have specifically framed my analysis under the new tort of family violence …the promise of significant financial compensation could make it more realistic for some women to leave violent relationships…. The no fault nature of family law must give way…”
This is a startling conclusion after an 11-day trial with one party unrepresented.
Where did this approach and analysis come from? Surely the unrepresented wife did not file an exhaustive Factum - that included UN conventions - seeking relief under a heading she did not even know existed. Was this novel concept only discussed in written submissions or was it raised throughout the trial? As I read the decision, I had an unpleasant flashback to law school, palm trees and Lord Denning.
Reading the Trial Judge’s decision, I paused to recall the words of the excellent Justice Mary Jo Nolan, retired, but now an equally excellent mediator arbitrator in Windsor. During a difficult family mediation, she told me that her approach to family litigation was to try to determine which party was pouring gasoline on the fire. Wise words.
In family law proceedings telling the parties - particularly the staggering number of self-represented litigants - that there may be significant financial compensation if they can convince a court that there has been abuse in their dysfunctional relationship is the equivalent of handing litigants a can of gasoline. The judge’s comments threaten to bring the concept of fault back to family litigation with a vengeance.
I shudder to think about the number of motions to amend pleadings that lawyers and parties have put forward ( or reports to LAWPro that will be made for failing to do so). Lawyers and clients will now need to conduct a painstaking review of the entire history of the relationship, even pre marriage. Even before they arrived in Canada and then gather that evidence? An expensive proposition.
If good counsel is involved some restraint and scrutiny may be applied to what allegations and evidence is appropriate and what is not. That will not be the case with the thousands of self-represented who draft their own pleadings and marshal their own evidence. Is it fair to ask Case Management judges to wade through historic abuse allegations about unhappy relationships and decide who is making a legitimate claim and who is just plain angry, looking for leverage or worse, seeking revenge.
Some of the statements made and conclusions drawn in this trial decision are nothing short of extraordinary. The methodology for assessment of damages alone is head scratching. Have you ever made a request of the court for something and been told, don’t be so modest, here is more than you asked for?
The wife in this case sought $100,000 in damages. Justice Mandhane awarded $150,000 - $50,000 compensatory, $50,000 aggravated damages and $50,000 punitive. At one point she remarked that, “Had there been no spousal support payable, I could easily have ordered compensatory damages in the range of $100,000.” On what basis? The spousal support ordered was just $2,224 per month. At another point, the Judge noted that she had “shown restraint in my award of punitive damages…” In other words, she would have gone far beyond even $150,000.
The outcome of the trial decision for this family it should be noted was that the husband left this marriage with nothing, in fact, less than nothing, as he was now estranged from his children. The wife received all the equity in the home, child and spousal support, and costs.
The damage assessment for the new tort occurred without even proper first consideration of Net Family Property statements at trial. It seems the idea of creating a novel new tort of family violence captured the proceedings.
Fortunately, the decision was appealed. The Ontario Court of Appeal correctly pointed out in their reasons, carefully written by Madam Justice M.J. Benotto, that this activist expansion of tort law was totally unnecessary. “It was unnecessary to create a novel tort.…in the circumstances of this case, existing torts, properly applied, address the harm suffered…. The creation of a new tort is only appropriate when there is harm that “cries out” for a legal remedy that did not exist.” Lawyers will recall that this is precisely what happened in the well reasoned decision in Jones v. Tsige (2012 ONCA 32) that created a new tort for intrusion on seclusion.
In their review of the new family tort the Court of Appeal refers to several precedent decisions that used existing tort law, and which were in line with what the wife sought in terms of damages for a pattern of abuse. While the Court of Appeal left the trial decision largely intact with respect to custody, and support orders, it did reduce the damage award by eliminating the weakly reasoned punitive damage component.
Importantly Justice Benotto added these cautionary words:
“Family law affects not just the parties, but their children, their extended families and society at large… And for every claim that has merit, there are some which involve claims for strategic reasons. That is why, for decades, progressive elements in family law sought to move away from the fault allegations that were shown to cause permanent and ongoing damage to the family…I simply caution that to lower the level of impugned conduct may intentionally encourage allegations of fault in every case, thereby undermining the movement towards a resolution-based system.”
Lawyers and thousands of self-representing litigants are now on tenterhooks awaiting the final word from the Supreme Court. I see the choice as straightforward, either follow the Ontario Court of Appeal and continue to use our existing, proven and successful tort-based civil torts – or pass the gasoline.
Criminalizing Coercive Behaviour?
Let’s turn now to the proposed changes to the Criminal Code with the criminalization of coercive control of an intimate partner. This proposed amendment has been reintroduced as of December 9th, 2025 in Bill C-16 along with other measures to protect victims and children..
How would the new crime be established ?
Step one: Who is the Bill designed to protect?
The law proposes to protect intimate partners, children of an intimate partner, friends and family of an intimate partner and the pets or animals in the care of an intimate partner, when that partner is in a vulnerable position in the relationship. Intimate partner is not defined.
Step two: What conduct is criminalized?
A person will commit an offence if they do certain things to their intimate partner:
- If a person engages in violence, threatening to use violence or attempting to use violence; (Note, this is already a crime)
- If a person coerces or tries to coerce sexual activity; ( Note, this is already a crime)
- If a person controls or attempts to control or monitor actions, movements, social interactions.
- If a person controls or attempts to control the way someone parents or cares for a pet or animal in their care.
- If a person controls or attempts to control employment, or monitor finances, or education.
- If a person controls or attempts to control expression of gender, appearance, dress, medication, access to health services.
- If a person controls or attempts to control expression of thoughts, opinions, religious or spiritual beliefs, culture, use of language, access to their community; or
- If a person threatens to die by suicide or self-harm.
Step three: The Offence
In order for there to be an offence the intimate partner must reasonably feel that their safety or the safety of a child, family member, friend or pet is threatened by the accused doing any of those things or threatening to do any of those things. Safety includes physical and psychological.
Step four: What makes the offence different?
The above behaviour is criminalized only if it is part of a pattern of conduct. The pattern can be created by repeating one type of offensive conduct or by doing a combination of the listed actions. But there must be a pattern for it to be seen as coercive to the vulnerable intimate partner.
Step five: Penalty? Up to ten years if treated as indictable or alternatively, it could proceed by summary conviction offence.
So, five things - a vulnerable intimate partner, feeling their (or their child’s, friend’s, families, pet’s) physical or psychological safety is threatened by a pattern of the listed conduct by the accused. If shown, off to jail.
All experienced family law lawyers have seen some, if not all, of the above “coercive conduct” in relationships. We peek through the Judas hole into marriages and common law relationships and witness all sorts of head scratching and hair-raising behaviour.
Early on in my career I represented a mother of four daughters who lived under the tyranny of a father who, among other controlling behaviours, counted the squares of toilet paper being used. I have seen people threaten to kill family pets, destroy prized personal possessions, listened to tapes and watched videos of the most vulgar language and behaviour, heard death threats uttered, represented a husband who woke to find his wife standing over him with a shotgun pressed to his forehead, seen not just the photos of cuts, bruises and scars but the actual wounds on wives and mothers, lost clients to suicide, been to their funerals and yes, my clients murdered their spouses. (See the inaugural issue of the OBAs JUST magazine and my article Hearts Broken All Around.)
And family law lawyers see all of this and other insidious controlling behaviours across a broad multi cultural and economic spectrum. Not all homes are equal. Not all cultures are the same. Nor does ugly behaviour have any economic guardrails. Money does not equal civility. And, dare I say it, some cultures, some ethnicities, some religions are - for women - worse than others in their marriages and certainly worse in their separations and divorces. Any family lawyer who denies that simple truth would not pass a lie detector test. It is reality.
The concerns about violence and coercive behaviour usually unfold at client intake with answers to questions like “Where are you from? “or “Where is your husband from?” Certain countries, certain ethnic backgrounds, certain religions are mentioned and red flags begin to pop up. The lawyer now knows that there will be extra challenges, increased acrimony, additional dangers and increased cost. It is a reality.
In the Ahluwalia, trial decision Madam Justice Mandhane makes the following comment about evidence that she heard during the 11-day trial:
“The Mother described the incident (an assault in their Brampton home in 2008) as the worst night of her life. When asked in cross examination why she did not complain to police immediately afterwards, the Mother explained that… she was resigned to the situation because “It happens to every Indian woman.” While I do not accept this latter statement for the truth of its contents, it helps to illustrate the Mother’s mental state at the time.” (Para 101) For family law lawyers it was simply a reality.
Elsewhere the evidence revealed that her Indian mother’s advice had been “Stay quiet, stay happy.” (para 99) That suggestion was accompanied by her knowledge that “the respective families expected her to stay in the marriage and neither family would support her if she left.” (Para 75) Again, reality.
Was she a vulnerable intimate partner whose physical and psychological safety was threatened due to a pattern of conduct? Absolutely. Was there a cultural ethnic component to what was going on in that marriage for 16 years? Absolutely.
Lawyers would not single out Indian families. Far from it, as I have seen worse from families from other parts of the globe.
However, based on what I and other family law lawyers have seen, some cultures, some ethnicities, some religions are going to find that the forms of coercive conduct listed in step 2 above - especially items 6 and 7 - cut very close to home. Let’s not pretend we did not know these facts if this law is passed. Some families may be singled out.
Another related question: If a parent challenges a child’s expression of gender, dress or appearance to such an extent that the other parent fears for their psychological safety, is this type of conduct that the proposed law is designed to punish? Is that addressing domestic violence? Is that good for the child? The family? Is that the proper subject matter of criminal court proceedings? I think not.
Another important question: if we assume that this law came into force January 1, 2026, then any impugned pattern of conduct required to engage this law, presumably is one that begins after January 1, 2026.
Any conduct that has happened in that intimate relationship prior to the coming into force could not be classified as criminal or as a part of a criminal pattern. Any person charged with an offence has the right to not be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian law. In other words, we cannot begin to tell people that the way they have lived for the past 16 years (as was the case with Ahluwalia) - as awful as it may have been - is now a crime. If enacted this new crime will be dealing with the future, not the past.
We expect enforcement of our criminal laws to deter the bad behaviour in question, to give an opportunity for rehabilitation and, to a lesser extent, show society’s repudiation of such behaviour. How are the nuances of this law going to be communicated to families so they can avoid the offensive behaviours? How are the insidious behaviours on that list to be deterred?
We do not want Canadians - vulnerable or otherwise - to be in intimate relationships experiencing the kinds of things listed in Step 2 above. We do not want them to be in relationships where someone is controlling their work, their finances, their education, their thoughts, their dress, their spiritual or religious beliefs, their culture, language, their movements or their opinions. Of course we do not want that, but in criminalizing these behaviours we need to be realistic about the impact of such a law on families from some religions, some ethnicities and some cultures.
The things that lead someone into a vulnerable relationship start long before they end up in a lawyer’s office looking for an exit.
Prevention?
All of the above - a new tort, criminal code amendments and investments in protecting those who flee domestic violence concern the aftermath of the violence, the consequences, not the origins of the violence or the prevention of the violence. Let’s turn to that now.
If you divorce in Ontario there is a requirement to complete the MIP - the Mandatory Information Program. It is designed to provide litigants with information about the family justice system, the options to resolve disputes, the effects of their separation on children and it “…empowers litigants to make informed choices about their future…” The mandatory session, led by an experienced family law lawyer, lasts from 1 to 2 hours and is free.
If you use mediation to resolve a family law dispute, you must be screened for power imbalances or domestic violence. This mandatory process allows the potential mediator, who meets separately with each party, to “diagnose” their complex relationship dynamic. It is in part a search for potential emotional or physical harm. The sessions take over an hour each and are included in the cost of the mediation.
On the other hand, if one wishes to marry in Ontario, where ”it is desirable to encourage and strengthen the role of the family and recognize the equal position of the spouses as individuals within the marriage and recognize marriage as a form of partnership…”(so says our Family Law Act), you can embark upon the most important decision you will make in your life by simply filling out an application (online no less) and paying $75.00. And for that minimal effort you will also enjoy all the financial benefits accorded married people under our Income Tax Act and other laws.
Why do we pour resources into empowering people to separate and divorce but do nothing to empower them as they marry? That seems backwards.
In my practice experience, people did not suddenly become abusive. People are not married or in a relationship for years and then suddenly wake up to find themselves married to an abuser. No, they wake up to the fact that they are in an abusive relationship, that it has been going on for some time and that they need to find a way out. But how did they find their way to begin with? Were there no warning signs? No clues?
Consider this suggestion: Prior to being granted a marriage licence couples should be required to take a course that - at a minimum - is equivalent to that which they must take when they divorce or enter mediation. Let’s have a course that “empowers the couple to make informed choices about their future, to recognize their equal positions as individuals, and to understand that marriage is a form of partnership.” Sound familiar? It aligns with our family laws.
And while they are involved in that course, they should also meet with someone to diagnose the relationship dynamic. Are they on an equal footing? Are their red flags? If they do not want to take the course, if they do not pass the course then no marriage licence and no access to Income Tax benefits. The same could apply equally to those who make an informed choice to live common law - no course, no access to Income Tax and other legal benefits. As a society we should want to subsidize healthy marriages and relationships, not roll the dice for $75.00.
Recall some of the types of behaviour proposed for criminalization:
- if a person controls or attempts to control employment, monitor finances or education,
- if a person controls or attempts to control expression of gender, appearance, dress, medication, access to health, and
- if a person controls or attempts to control expression of thoughts, opinions, religious or spiritual beliefs, culture, use of language, or access to their community.
Would those kinds of challenges to relationship surface during this type of course? I think so.
None of these types of coercive behaviours are reviewed with individuals applying for either Permanent Residence or Citizenship. Go to the Toronto Public Library and take the random Citizenship prep - test to see what we as Canadians, attracting immigrants, want people to know about if they hope to make a better life here. There is a lot more in that test about the Metis, the environment, the Governor General, and federal provincial jurisdiction than there is about what we expect in our intimate and family relationships and what we will not tolerate.
At a minimum, this type of course might help to weed out the scandalous use of marriages of convenience and related abuse of our immigration and tax laws. I can personally attest to a conversation in chambers with a very experienced Toronto family law judge. He pointed to the stack of divorces on the front of his desk and said, “Michael, marriages of convenience, hundreds. We cannot say anything.” All experienced family law lawyers have raised their eyebrows, scratched their heads and swallowed hard as they administered oaths to litigants completing their Financial Statements. Multiple principal residence designations? How were these homes paid for? Loans? Where did this money come from? Were these significant assets declared when you entered Canada? And on and on. Fraud, plain and simple.
To graduate and receive a diploma from an Ontario high school, a student must complete 40 hours of voluntary community involvement. They can get those hours by volunteering at local businesses, hospitals, long term care, retirement homes and other health care institutions, not for profits, religious, cultural events and so on.
There are 111 organizations in Ontario that provide domestic violence services at some level. In Canada there are, as of 2023, 560 residential facilities whose primary mandate is to serve victims of abuse. I guarantee that any female student who earns her 40 hours of community involvement with one of these organizations will be a lot less likely to find herself in an abusive relationship. And it would also be an extra benefit from the billions of dollars being spent on those services to begin with.
Conclusion
What conclusion have I reached after my search for an answer to the question of whether we are making any progress? Simple - instead of inventing more things to sue for or creating more crimes to prosecute, I propose that we, as a society, invest more time - and money - at the front end, to stop those abusive relationships from ever getting started.
About the Author
Michael Cochrane is Counsel at Brauti Thorning LLP in Toronto (www.btlegal.ca). He is the author of Surviving Your Divorce (6th edition), Family Law in Ontario for Lawyers and Law Clerks (Thomson Reuters), Do We Need A Marriage Contract (Wiley), Do We Need a Cohabitation Agreement (Wiley), Strictly Legal II (Insomniac Press) and the novel series "Night Soil" (michaelcochrane.ca). He was a recent recipient of the King Charles III Coronation Medal for his contributions to policy, politics and justice. The above article is a compilation of a series of four articles published earlier this year in Law360 (LexisNexis).
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