Considerations for a Tort of Family Violence

Abstract

This article contends that the existing gap in legal recognition of domestic abuse would be effectively addressed through the codification of the proposed tort of family violence. The first section examines a "continuous" and relational understanding of domestic abuse through the lens of Ahluwalia v Ahluwalia, where the tort was initially introduced, and discusses the tort's potential to reconcile the law with this understanding of domestic abuse. The second section critically engages with the Ontario Court of Appeal's decision to overturn the tort, challenging the assertion that existing torts sufficiently encompass the unique harms and dynamics of domestic abuse addressed by the proposed tort of family violence. The final section explores the broader implications of adopting this tort, particularly within family court proceedings. This article argues that codifying family violence as a compensable harm within tort law offers a coherent solution to the deficiencies of the legal system, providing appropriate redress for the lived experiences of family violence while ultimately enhancing the legal system's responsiveness to contemporary societal concerns. 

With heartfelt gratitude, I wish to thank my senior editor, Lydia Horton, and my remarkable advisors, Richard Peck and Nikos Harris, for their unwavering support, meticulous guidance, and for patiently navigating my many ramblings during the editing process. This paper also owes much of its final form to the minds, cursors, and redinked pens of Moayad Karar, Sinan Shariff, Charles Atkins, Hugh Durnford-Dionne, and Thomas Latendresse, whose insights have been invaluable. I am deeply thankful and profoundly grateful to my mother, father, my Baka, Tanya Jamal, Denis Jugloff, and Nathan Ince, who have nurtured my curiosity both in life and throughout my academic journey. This paper is dedicated to Ivy. All errors are my own.