Maggie House – Part 1: Ahluwalia v. Ahluwalia – A New Tort of Family Violence? A Case History and Summary of Arguments Made at the Supreme Court of Canada. Published April 15, 2025.
This blog post contains discussion and descriptions of intimate partner violence.
With the Supreme Court of Canada (“SCC”) having recently heard oral arguments in the matter of Ahluwalia v Ahluwalia on February 11 and 12, 2025, we will soon know if Canada will recognize a new tort – the tort of family violence. For the uninitiated, a “tort” is a wrongful act – or failure to act – that causes harm that if proven in court can result in remedies being awarded including financial compensation or “damages”. In anticipation of the possible expansion of tortious remedies into the family law domain, I am recapping the case history of the Ahluwalia as well as some of the arguments made at the SCC for and against the recognition of a new tort of family violence. Stay tuned for Part 2 of this blog series where I will explore the merits of the arguments made at the Supreme Court of Canada and take a guess as to where the Court will land.
Case History
The Trial
Ms. Ahluwalia (the “Appellant”) was a survivor or extreme violence and coercive control perpetrated against her by her husband, Mr. Ahluwalia (the “Respondent”). The Appellant was self-represented in divorce proceedings. She amended her pleadings prior to the trial to include an application for financial compensation for the abuses she was subjected to by the Respondent during the relationship. At trial, the Appellant led extensive evidence of these abuses which included extreme physical violence, belittling, name-calling, financial abuse, and persistent and ongoing efforts to control and punish the Appellant throughout the marriage.
The trial judge, in considering the Appellant’s application for financial compensation, held that the existing torts (such as battery, assault, and intentional infliction of emotional distress) did not adequately capture the complex and unique web of harm that flows from intimate partner violence (IPV). “Coercive control” is a specific type of abuse that is unique to the family unit and none of the existing torts encapsulates it.
The trial judge created the tort of family violence and awarded the Appellant $150,000 in damages.
The Appeal
The Ontario Court of Appeal (“ONCA”) rejected the trial court’s recognition of a new tort. Instead, they held that existing torts were sufficient to provide recourse to IPV survivors. In its reasons, the ONCA held that the recognition of a tort of family violence and a lower level of impugned conduct could encourage allegations of family violence in every case which would undermine the movement away from adversarialism towards a resolution-based approach to family law. The ONCA also reduced the Appellant’s award amount from $150,000 to $100,000.
Submissions at the SCC
The only issue before the SCC was whether it was appropriate to recognize the TFV as a new tort.
The Appellant
The Appellant sought an order that her appeal be allowed, that the trial judge decision be restored, and that the tort of family violence (“TFV”) be recognized in Canadian law.
The Appellant’s submissions to the SCC highlighted the gendered nature of IPV, calling IPV an “epidemic that targets women”. The Appellant argued that family violence is a pervasive problem linked to power imbalances grounded in systemic discrimination.
Second, the Appellant assessed the current framework of torts, concluding that it is an inadequate framework to address IPV and results in discriminatory outcomes. Described as “the Family Discount,” the Appellant asserts that those who have successfully pursued damage awards for family violence under existing torts received awards that were markedly lower than those awarded to victims of similar violence by non-family members. In some cases, claims for damages were dismissed because they involved family violence. The current framework of torts forces courts to do analytical gymnastics. Addressing the ONCA’s assertion regarding the adequacy of existing torts, the Appellant argued that they fail to capture the relentless, day-to-day culture of violence. They noted that there was a gap in the existing torts which focus on isolated incidents, rather than the compounding and cumulative harm of a pattern of abuse specific to the family context.
Third, the Appellant posits that family violence is an attack on Charter values. Access to justice is deeply hindered by the current tort framework, forcing litigants to rely on disjointed and complicated caselaw. The Appellant noted that at least 58% of family law litigants are self-represented because very few people can afford a lawyer, and even fewer can afford a trial. Victims of violence should be able to access and engage in the legal system and the labyrinth of complicated existing tort law does not provide such access to IPV survivors. The Appellant further contends that the evolution of the law must align with the values and principles in our Canadian Charter of Rights and Freedoms, and specifically Charter s 15, which guarantees that the impact of laws must affirm the equality of all individuals. As well, the Rule of Law and the Charter s15 require that each person receive the equal benefit of the law. Conversely, the Appellant says, the existing torts exacerbate disadvantage and social, political and legal exclusion for victims of gender-based violence and do not provide equal protections of the law to IPV survivors.
Fourth, the Appellant urges the court consider how other courts, both domestically and internationally, have addressed family violence. In Canada, the courts and Parliament have made profound transformations to law, including the 2021 amendments to the Divorce Act, which recognized family violence as a factor in assessing the best interests of the children. The law historically permitted family violence by permitting ownership of women by their husbands. The cultural and legislative change in our understanding of family violence support the Appellant’s position that the TFV is necessary and appropriate to provide victims meaningful recourse against their abusers.
Fifth, the Appellant highlights how the SCC has recognized the harm caused by family violence in previous decisions and urges the Court to apply the same rationale in this case as a foundation for recognizing the TFV. Our evolving awareness understanding of IPV is echoed in the more recent 2022 SCC decision of Barendregt in which the court accepted the negative consequences to children who witness family violence. Despite this, the Appellant asserts that “myths and stereotypes” about women (like the myth of the “vengeful mother” who lies about IPV to obstruct parenting time of the other parent) continue. Perpetrators of IPV rely on myths and stereotypes to bolster their own credibility in falsely denying women’s claims of IPV as a litigation abuse tactic to continue to exercise dominance and control over their spouse.
They conclude that the TFV closes the circle on family violence. A new clear, specific law is required to capture the uniqueness of violence in the family context. Wholesale importation of terminology and principles into family law from other areas of law is folly. For example, the approach to marriage as a contract between equals led to impoverishment of dependents, namely women and children and the legislature and courts abandoned this approach. Instead, domestic contracts must be viewed through a lens that is sensitive to power imbalance inherent to many domestic unions. Just as the court has recognized the unique ecology of the family in accessing contracts, so too should it recognize this unique ecology in an assessment of damages. The virtue of tort law, as with all common law, lies in its inherent capacity to evolve. The Appellant implores the court to read the 2021 Divorce Act amendments relating to family violence expansively to recognize the TFV. They argue that the test for TFV be that a plaintiff establish, on a balance of probabilities, IPV that includes more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessities of life, psychological abuse, financial abuse, killing an animal or destroying property. Further, they assert that a careful assessment of evidence of environmental factors (lack of job skills, presence of children, fear of retaliation) and systemic barriers (fear of losing primary care of children, pressure to keep family together, weak social and financial support, continued violence post-separation) is critical to ensure that judges do not engage in stereotypical reasoning about the behaviours expected of IPV survivors. Once liability for TFV is proven, then a quantum of damages assessment would follow. They suggest that the extent, duration and impact of the IPV will be relevant to determine the quantum of damages. The Appellant ends with a quote from retired SCC Justice Rosalie Abella: “Family law is and should be a leader in the legal system, because it matters so much to so many. And that is why it is worth spending the time and energy on trying to get it as right as reality permits”.
The Respondent
The Respondent asserts that the TFV will not improve the current state of law, and nor will it “solve” IPV. The recognition of new torts is not common and should only be undertaken where necessary. The trial judge grounded its recognition of TFV in the 2021 Divorce Act amendments. These amendments were only supposed to have been applicable in assessing the best interests of a child. The nominate tort is unnecessary and highly specific. IPV is already addressed by existing torts and there is no gap that needs filling.
They further assert that the there will be negative consequences of yet unknown impact in recognizing the TFV. It is vague and does not require a litigant to prove any harm. Its application would cause confusion, lower the level of conduct that is actionable, and increase litigation abuse. This would translate to TFV being misused. While Canadians should strive to eliminate IPV and enable IPV survivors to access justice, the recognition of TFV is not the appropriate way to achieve those goals.
The test for whether the court should recognize a new tort is summarized by the court in Nevsun :
(1) The courts will not recognize a new tort where there are adequate alternative remedies; (2) the courts will not recognize a new tort that does not reflect and address a wrong visited by one person upon another; and (3) the courts will not recognize a new tort where the change wrought upon the legal system would be indeterminate or substantial. Put another way, for a proposed nominate tort to be recognized by the courts, at a minimum it must reflect a wrong, be necessary to address that wrong, and be an appropriate subject of judicial consideration.
Existing remedies are sufficient, and specifically, the Respondent argues that IPV is adequately covered by the torts of assault, battery, and the intentional infliction of emotional distress (“IIED”). Battery is unwanted physical contact. Assault is threat of unwanted physical contact. These two torts address the physical violence aspect of IPV. IIED is 1) flagrant and outrageous behaviour (2) calculated to produce harm (3) that causes the plaintiff a visible and provable illness. IIED covers the coercive control and non-physical components of IPV. Contrary to the trial judge’s findings, the Respondent asserts that patterns of behaviour (such as coercive control) are regularly addressed using IIED. The Respondent urged the court to adopt the reasoning of the ONCA where it asserted that the TFV and IIED were effectively the same but for the distinction that IIED required proof of harm while TFV did not. The Respondent posits that the application of additional existing torts (e.g. tort of intimidation) also supports their position of the adequacy of the existing torts framework.
The Respondent asserts that the Appellant’s claim that the TFV will solve the issue of the “family discount” in damage awards is a problem that was already solved. Significant damage awards for IPV are the norm, they say. Further, the quantum of damages should be tied to the quality of the evidence. Rather than recognizing a new tort that addresses myths and stereotypes about IPV, the Respondent suggests that the solution is better judicial training, such as that contemplated by “Keira’s Law” (the law requiring Canadian Federal Judges to complete training about coercive control and family violence).
Next, the Respondent argues that the TFV is poorly designed and overbroad. Even if the existing framework of torts didn’t address IPV, this doesn’t equate to warranting recognition of the TFV. The lack of the requirement of proving harm is problematic and will contribute to litigation abuse because the TFV lacks procedural safeguards to ensure evidentiary integrity. Just because it is difficult to prove IPV doesn’t mean that the court should do away with having to prove it, they argue.
The formulation of the TFV from the trial decision was: “conduct by a family member towards a plaintiff within the context of a family relationship, that: (1) is violent or threatening, or (2) constitutes a pattern of coercive and controlling behaviour, or (3) causes the plaintiff to fear for their own safety or that of another person”. The Respondent takes issue with the trial judge’s having not limited the description of the perpetrator of IPV to spouse but rather the broad category of “family member”. They conclude that anyone who is a “family member” can bring a claim against any other person in this broad category if one of the three modes is satisfied. The Respondent further takes issue with the lack of limitation period applied to the TFV formulation.
Because of the broad use of “family member” in the TFV formulation, a multiplicity of family members could bring claims for the same conduct. For example, not only the person directly subjected to violence but also the person witnessing the violence could potentially bring a claim including the witnessing children. Notably, these “family members” could bring a claim long after the events had passed, because there is no limitation period before which their claim must be brought.
The Respondent criticizes the first mode – conduct that is violent or threatening – as over-broad. It is broader than assault and battery which requires a “reasonable fear of imminent contact of a harmful or offensive nature” and harmful or offensive interference with one’s physical person”, respectively. The lack of a need for “fear” to accompany the threat of and physical violence, they say, stretches liability to “limitless” behaviour.
The Respondent also criticizes the second mode – conduct that constitutes a pattern of coercive or controlling behaviour (CCB) – as being vague for lack of a universal agreement on the exact definition of CCB. Further, they say, CCB is covered by IIED with one critical difference that IIED requires the plaintiff to establish harm whereas CCB does not. The Respondent then laments the overbroad application of the definition of “family violence” in other decisions. The “risk of TFV” is demonstrated by the existing case law where family violence was held to include conduct such as repeated infidelity, litigation conduct, denying parentage, and making unsubstantiated allegations against the other party, denying parenting time or undermining thee other parent’s authority.
The broadness of the TFV formulation also invites risk of opening the door to new ways for perpetrators of IPV to use the legal system as a vehicle of harassment. In the jurisdictions where torts for IPV have been introduced – California and Illinois – the tests are much narrower. It’s application is limited to between spouses, cohabitants or prior spouses and cohabitants. It also only addresses physical violence to the exclusion of non-physical forms of family violence.
The Respondent goes on to say that the TFV would upend fundamental legal principles of tort law that have existed for hundreds of years. Its effect would be so significant that it is not an appropriate exercise of judicial decision-making but rather should be left to the legislature. The Respondent urges the SCC to use judicial restraint and argues that Charter values and public policy cannot supersede the substantial and indeterminate impact that TFV would have on the law. The Respondent also posits that – as a nation – we’re doing comparatively just fine on the IPV front. Canada has one of the lowest IPV rates in the world.
Lastly, the Respondent posits that TFV will impede rather than promote access to justice because its recognition will increase adversarialism in family law litigation. The Respondent warns that the TFV will be pleaded frequently and its existence will encourage litigations to allege family violence in every case.
In conclusion, the Respondent calls the TFV a “weapon” that will be used to “intimidate” opposing parties and “force” them to settle on the alleging parties’ terms. They content that TFV will bog down the already overburdened legal system leading to less access to the justice system. Also, the Respondent seems to take issue with the lack of immediacy in the TFV addressing IPV. They say that the eventual damages that a survivor of IPV may get is only available to them years down the road. A damage award does not help an IPV survivor leave a relationship in that moment. What they suggest would be more helpful is an investment in immediate services and supports, not the possibility of compensation far in the future.
Stay Tuned
In Part 2 of this blog series, I will explore these arguments and discuss where I think the court may be headed.
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