The SCC declined to recognize the tort of family violence that had been established by a lower court
In a landmark 6-3 decision on Friday, a Supreme Court of Canada majority recognized a new tort of intimate partner violence, paving the way for litigants to pursue damages against their romantic partners for a range of conduct beyond physical violence, including isolation, humiliation, surveillance, financial control, sexual coercion, and intimidation.
The woman at the centre of Ahluwalia v. Ahluwalia, Kuldeep Ahluwalia, had asked the court to recognize a new tort of family violence to account for the physical, emotional, and financial abuse her husband had inflicted on her over 16 years of marriage. The Ontario Superior Court of Justice granted Ahluwalia’s request in 2022 and outlined the parameters of the new tort.
Writing for the majority, however, Justice Nicholas Kasirer said the tort of family violence as framed by the lower court did not precisely align with the facts of Ahluwalia’s case.
“The tort of family violence would impose liability on family members broadly, not just intimate partners,” Kasirer wrote. “The wrongful conduct that the parties put before the trial judge relates specifically to intimate partnerships, not all family relationships.
“The broad definition employed by the trial judge would come at the expense of an understanding of the tortious conduct that reflects the particular relational dynamic between intimate partners raised by Ms. Ahluwalia in her proceedings,” the justice continued.
Kasirer cited an argument by Justice for Children and Youth, one of 17 intervenors in the case, which argued that children are harmed distinctly by family violence. But while the vulnerability that Ahluwalia, as a spouse, experienced in her relationship is likely comparable to what other types of family members might feel in the context of family violence, the justice said the unique character of coercive control between intimate partners warrants recognition on its own.
“Intimate partnerships are predicated on a different intimacy, and a different idea of the family bond, from nonconjugal relationships between other family members,” Kasirer said. He added it would be a mistake to design a new tort that attempts to cover all instances of violence among family members, given the specific facts of Ahluwalia’s case.
Justice Andromache Karakatsanis agreed with the creation of the new tort, but dissented in part. Justices Mahmud Jamal, Suzanne Côté, and Malcolm Rowe dissented.
Creating the tort of family violence
Ahluwalia married her husband, Amrit Ahluwalia, in India in 1999. The couple immigrated to Canada two years later and had two children before separating in 2016. In 2021, Amrit was criminally charged with assault and uttering death threats against Ahluwalia.
When the couple separated in 2016, Amrit filed a court application to sell the couple’s home, divide their property, and determine parenting responsibilities. However, Ahluwalia wanted sole decision-making authority over their children, as well as child support and spousal support. She claimed Amrit was physically and emotionally abusive and exerted financial control over her.
Years into the litigation, Ahluwalia, who had begun representing herself, filed a claim for damages against Amrit. She argued that Amrit’s physical violence and controlling behaviour harmed her mentally and physically, and that he owed her general, exemplary, and punitive damages as a result. Ahluwalia did not specifically plead torts of assault, battery, or intentional infliction of emotional distress.
In 2022, Justice Renu Mandhane of the Ontario Superior Court of Justice found that Amrit had engaged in serious physical assault of Ahluwalia on multiple occasions in their marriage, and that there was an overall pattern of coercive and controlling behaviour on his part. The justice also determined that the existing torts of assault, battery, or intentional infliction of emotional distress failed to “fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness.”
Mandhane’s response to this inadequacy was to establish a new tort that aimed to capture the breadth of domestic violence more fully: the tort of family violence. The justice outlined the elements of the new tort, ruling that a plaintiff could establish a defendant’s liability by proving they either engaged in intentional conduct that was violent or threatening, behaviour that was meant to be coercive or controlling, or conduct that they knew would make the plaintiff fear for their own safety or the safety of others.
Mandhane concluded Amrit was liable under the tort of family violence. She assessed damages of $150,000.
The next year, however, a unanimous panel of the Ontario Court of Appeal rejected Mandhane’s creation of the new tort, finding that existing torts adequately accounted for Ahluwalia’s experiences. The appellate court also reduced Amrit’s damages to $100,000.
The Supreme Court’s decision
The majority found that the harm Ahluwalia suffered through her marriage fell within the scope of the new tort of intimate partner violence.
Canada’s courts rarely recognize new torts. According to Kasirer, the law on when courts can recognize new torts is largely settled and favours incremental change. To assess whether change is warranted, courts must consider whether the facts of a case show a wrongful act that offends a recognized legal interest in private law, and whether existing torts are inadequate to redress it.
If these two criteria are met, the new tort must be crafted so that it only fills the gap in the existing law.
In introducing the new tort of intimate partner violence, Kasirer defined intimate partnership as “a relationship of close personal connection, sustained over a period of time, and marked by mutual interdependence, care or commitment, and the presence of domestic, emotional, financial or physical intimacy.”
It is not necessarily defined by sexual relations, cohabitation, marriage, but rather by “the substantive qualities of the relationship and the fact that it reflects social, financial, and affective interdependence in a manner that is relevant to both partners’ agency, sense of self and personal dignity, as well as material and physical well-being,” Kasirer wrote.
However, he added his description should serve as a guide rather than a fixed definition.
The justice said intimate partner violence is centred on coercive control, which limits a person’s dignity, autonomy, and equality. He noted that while it can impact people of all genders, women are disproportionately harmed.
Like Mandhane, Kasirer found that existing torts fail to adequately account for how domestic abuse impacts survivors.
“Existing torts, whether separately or together, cannot remedy the full scope of the injury inflicted by intimate partner violence, specifically the coercive conduct at issue here,” Kasirer wrote. “Although these torts capture conduct that may, in part, overlap with intimate partner violence, plaintiffs must adduce evidence of the abuse they experienced to fit into these existing legal categories only to obtain an incomplete remedy.
“This approach inevitably leaves aspects of the wrong and the injury unaddressed,” the justice added. “Forcing facts into the strict confines of existing torts is both out of step with the incremental development of tort law and does not advance access to justice for victims of intimate partner violence.”
The justice outlined the test for determining whether a defendant is liable for intimate partner violence, which includes three prongs: the defendant’s wrongful conduct must have occurred during or after an intimate partnership, the defendant must have intentionally engaged in the abusive conduct, and the conduct must constitute coercive control.
Kasirer did not set a limitation period for the new tort.
In a statement, Geoffrey Carpenter of Carpenter Family Law, who represents Amrit Ahluwalia, said, "This is a very important decision that will profoundly impact family law. How it is applied by lower courts in the coming years will be a significant focus."
Counsel for Kuldeep Ahluwalia did not immediately respond to a request for comment.
