September 23, 2025

By Robert Schroeder 

Unfortunately, domestic violence is all too common. Until recently, if a spouse wanted to pursue damages for physical injuries or emotional distress, they had to start a lawsuit separate and apart from the lawsuit over the family issues. This discouraged many people from pursuing their rights.

Recently, the Ontario Court of Appeal recognized that claims for injuries could be included within a family law claim, simplifying the process.

The jury is still out on whether there is a separate claim known as “family violence”. The Court of Appeal said that there are enough existing causes of action to cover both physical and psychological injuries arising from domestic violence.

Ontario courts are recognizing that traditional family law remedies may not always adequately address harm arising from egregious conduct between intimate partners, particularly in privacy violations, or coercive control. In Ahluwalia v. Ahluwalia, the Court of Appeal affirmed that the inclusion of tort claims in family law proceedings is not per se impermissible, particularly where the harm suffered is of a kind that “cries out” for a remedy not otherwise available through existing statutory frameworks.¹⁵ The clarified that claims for intentional infliction of emotional distress or other intentional torts are not barred simply because they arise during a family relationship. The law must be responsive to patterns of emotional or psychological abuse that reflect sustained invasions of dignity and autonomy.

The Ahluwalia case has been appealed to the Supreme Court of Canada. Oral arguments have been heard. There may be further developments when that decision is forthcoming.

In the interim, we will look at some of the claims that can be made.

Assault and battery

In Canadian law, any threat of unlawful touching is considered an assault. Actually touching someone without consent may be a battery. For practical purposes, the two concepts blend together. Much of the scope of the proposed tort of family violence is captured by this existing cause of action. Damages are payable for pain and suffering and loss of enjoyment of life. Most claims are modest in value, escalating as the severity of the injuries mount.

Sexual assault

Sexual assault is the modern term that has replaced rape and includes all manner of threats or touching for sexual purposes. This sub-set of assault is always considered more serious that other forms of assault, and damages may be substantial.

Intrusion Upon Seclusion

This tort consists of three elements:

1. The defendant’s conduct must be intentional/reckless.
2. The defendant must have invaded the plaintiff’s private affairs or concerns without lawful justification.
3. A reasonable person would regard the invasion as highly offensive, causing distress, humiliation, or anguish.

One example is the use of hidden cameras to capture intimate acts.

Damages under this tort are modest but symbolically important. There is a rough upper limit of $20,000.00 depending on factors such as the nature of the relationship between the parties, the extent of the intrusion, the impact on the plaintiff, and whether the defendant apologized or disclosed the information.⁷ Aggravated, or punitive damages may also be awarded in exceptional cases involving bad faith or malice. In one case the defendant engaged in a persistent campaign of harassment over a period of four months including violent threats of harm to their ex-wife. The judge awarded $25,000.00 in general damages, $15,000.00 in aggravated damages, and $15,000.00 in punitive damages recognizing the deliberate and prolonged nature of the harassment.

Intentional Infliction of Mental Suffering:

This tort, while more demanding, may supplement a privacy claim where the plaintiff has suffered psychological injury. The elements are:

1. Outrageous or flagrant conduct by the defendant;
2. that was calculated to produce harm;
3. resulting in a visible and provable illness.

In Yenovkian v. Gulian, the Court awarded $100,000.00 in tort damages within a family law proceeding: $50,000.00 for public disclosure of private facts and $50,000.00 for intentional infliction of mental suffering. In Yenovkian, the mother suffered “nightmares, crying spells, and panic attacks” resulting from the father’s online harassment campaign. The court accepted this as sufficient proof of harm. The $100,000.00 in damages that was awarded in this case has been one of the highest awarded to date in Ontario. The conduct was found to be “outrageous”, justifying a high damages award to reflect the seriousness of the violation and deter similar conduct.

Breach of Confidence

A breach of confidence claim requires:

1. Confidential information.
2. Communicated in confidence.
3. Misused by the recipient to the plaintiff’s detriment.

Without third-party disclosure or misuse, this tort may be difficult to establish.

TAKEAWAYS

• The common law must evolve to protect individuals from new forms of social harm,
• This includes situations of domestic violence, either physical or emotional.
• The forthcoming Supreme Court of Canada decision will give further guidance.
• Stay tuned.

WHAT WEILERS LLP CAN DO TO HELP YOU

A Weilers LLP our family law and litigation teams are both highly skilled and experienced. In situations of domestic violence, our family law lawyers may consult with our litigation team to recover the damages that you deserve, or to defend you from a claim.

If you are in need of advice or representation regarding family law, give us a call. We might be the right lawyers for you.

The assistance of law student Kessandra Filograna is greatly appreciated.