Lawyers left flying in the dark, waiting for guidance from lower courts looking at upcoming cases
In the wake of the Supreme Court of Canada decision in Ahluwalia v. Ahluwalia and the recognition of a new tort of intimate partner violence, family lawyers have been left without guidance, and they know it will be a while before lower courts can deliver any.
Matthew Katsionis and Leena Yousefi are both Vancouver-based family lawyers. And while they have very different opinions on the need for the new tort and its effectiveness, both agree that the family law system has been upended. As a result, lawyers – and by extension, their clients – are left facing questions and uncertainties about the new tort and how to best proceed with cases under the newly created rules.
“I think in theory the intention is great. Nobody in their right mind wants to see anybody be abused within a relationship and [the Supreme Court of Canada] wants to deter that kind of behaviour, but in reality, I don't agree with it,” says Yousefi, founder and CEO of YLaw Group. Still, she knows that doesn’t matter. “This is not about our personal opinions, it’s about our job, but right now, because we don’t have guidance, we’re going to go based on our personal opinions about it, and that’s going to create some lack of uniformity across the board until it’s hashed out.”
Katsionis, who is a partner at Crossroads Law, expresses a similar sentiment, even as he is fully supportive of the new tort. “Usually, the legislation changes to match whatever the new case law ends up being, but with the situation we have now, we’re flying in the dark,” he says, explaining that the entire profession will be watching what happens as cases come before judges over the coming months. “But at the outset, we’re operating really on one case [Ahluwalia] that has a definitive answer.”
Examining the need for change in intimate partner violence
In Ahluwalia, Justice Nicholas Kasirer, writing for the majority, explained that “Intimate partner violence is centred around coercive control. While coercive control can result from discrete incidents of physical, sexual, or emotional abuse, it often also includes methods of control that are less visible, such as economic control of the victim or monitoring day-to-day movements.”
The judgment called out the persistent and ongoing nature of the control, noting that “A pattern of this kind constitutes an entirely different wrong from what is captured by existing torts” and says that “victims seek to be restored not to the state they were in before each incident of abuse, but to the fuller state of safety, freedom, and equality that existed before the pattern began.”
That’s a perspective that Yousefi questions. She says that her view of family law is “mostly forward-looking, whereas right now we are backward-looking. Most of the [Supreme Court of Canada justices] disagree with me, so I’m not saying that I’m right. I’m just saying, in practice, I’m seeing more harm being done right now as a result of [the decision] than not.”
As for situations that could be seen as putting one spouse or partner under the coercive control of the other, Yousefi says the legal system already offers tools to address those issues. These range from protective orders to spousal support to criminal charges to legislative recognition of family violence as a means of preventing one spouse from gaining child custody, she says.
To Yousefi, the family law system is about helping people move on and get past disagreements, whether that’s about property division, child custody, or spousal support. It’s also a system where the court steps in only in exceptional circumstances. It isn’t designed to compensate people who made bad personal choices 20 years ago and are now seeking compensation. She says the decision, however, with its compensatory component, seems to flip that perspective, especially for clients who are viewing the new tort as a potential windfall.
“They’re trying to use any tools available to protect themselves, perhaps get custody of their kids, and maybe get more money out of the marriage.”
Yousefi says that she has even had potential clients argue that she shouldn’t charge them any fees to represent them, saying that they’re expecting large settlements based on intimate partner violence claims, and that she’d be able to get her cut after they win their award.
In contrast, the tort was very much needed and serves to “address a long outstanding issue – almost like a hole – in family law,” says Katsionis. “There was no way to properly address family violence, with some resolution like a compensation claim, save and except a collateral civil claim… now, we’re in a position where there is a compensation model (provided you could prove it), that didn't exist.”
And even civil-law claims have their own limitations when it comes to coercive control situations, Katsionis says, as they were created with an incident-based frame of approach (with a one-off physical assault worth a set amount of compensation, a second assault worth another amount), not one that considers long-term patterns.
He also notes that this new tort specifically addresses the relationship between spouses, a significant change from the previous regime.
“When we looked at family violence, that was very specific. It included the children underneath the umbrella, whereas now we’re looking specifically at how the relationship operated, which is a whole new way of looking at things, as far as I’m concerned.”
Changes in day-to-day operations post-Ahluwalia
Ahluwalia has already forced law firms to adopt a host of new processes. At Crossroads, for example, Katsionis says there’s a new intake procedure. In addition to the family-violence screening that is already conducted, staff now undertake an intimate partner violence screening as well. And if a new client seems to have an intimate partner violence claim, then steps are taken to ensure that all the necessary evidence is gathered and documented. This can include paperwork, timelines, call logs, texts, counselling or medical records, and statements from friends and witnesses.
The screening isn’t just being applied to new clients; existing clients and their cases are being reconsidered, even though Katsionis isn’t sure how much leeway courts will give to cases initiated before Ahluwalia came down. This is an especially tricky situation in British Columbia since a claim of intimate partner violence must be included in the original pleading as part of the notice of family claim. In comparison, Katsionis says Alberta requires an intimate partner violence claim to be filed as a separate civil claim.
As cases progress, Katsionis expects other aspects of case management to evolve as well.
“I think it changes how we do discovery. I think it changes how we do examinations. I think it’s going to change disclosure requests. I think there’s going to be a few things that are going to change over the course of our representation.”
One thing he does expect is for intimate partner violence claims to add a bit more time – maybe another day or two – to trials, as more experts and witnesses are called to testify. But stretched-out timelines are something Yousefi is already experiencing. Out of the 26 lawyers working for her firm, she says all of them “are reporting that mediations have gotten adjourned or cancelled, that cases that were set for trial for five days are now being set for 15 days, because they want to spend the other 10 days talking about every single time somebody sent a text that was bad or mistreated [their partner] during the relationship.”
She even gives the example of one case where the separating spouses are “pre-torting” each other, with each accusing the other of engaging in intimate partner violence in the expectation of going to court.
It's not just legal parties on the other side driving these changing tactics. Currently, Yousefi says a vast majority (well over 70 percent, she estimates) of new clients are raising the topic of intimate partner violence when they first begin talking about their cases.
Being part of these more antagonistic claims is something Yousefi worries about, especially regarding the welfare of any children involved.
“It’s almost putting us lawyers in a conflict-of-interest position, because, on the one hand, the Divorce Act and Family Law Act and all the legislation says that we must act in the best interests of the children. Then the question arises, ‘is it to the best interest of children for their parents to go to court in the public eye, hashing out every time an abusive behaviour happened during the relationship?’ A lot of times, that’s done as a means of gaining custody or compensation. What will those children think when they grow up? Would they have wanted this to happen, or for the parents to be encouraged to engage in this kind of behaviour?”
Perhaps more optimistically, Katsionis sees the possibility of an intimate partner violence claim as being a deterrent against going to court. He can envision somebody, almost surely a man, wanting to avoid the negative public attention that could come with the accusation, being more willing to go through arbitration and agreeing to pay out more in support.
Looking forward for family law lawyers
Based on experience, Yousefi doesn’t expect there to be full clarity into the legal aspects of intimate partner violence for a decade or so, as that’s how long she says it took the provincial legal system to deal with the property regime change that occurred in 2013. “It didn’t really get clarified properly until 2024 when the government brought in more legislation clarifying what their intention was,” she says.
In addition, there are new changes to criminal law that will need to be considered now that the Protecting Victims Act (Bill C-16) received royal assent on June 18, 2026. Among other changes, the new law makes coercive control in intimate relationships an offence.
Overall, Yousefi expects the bar to be set very, very high when it comes to intimate partner violence judgments and compensation awards.
“We should be very careful before advancing these torts, because they can have a lot of negative side effects if your [client’s] situation doesn’t meet the high threshold of coercive control.”
Likewise, Katsionis recommends lawyers take a cautious approach when advocating for their clients before advancing an intimate partner violence claim and truly understanding the basis for the Supreme Court of Canada’s ruling in Ahluwalia.
He says lawyers need to ask themselves, “Am I feeling bad for my client, who went through a lot or am I looking at this objectively? Does their case have deficiencies in it, or is it a strong case?” And this will be especially critical before courts begin truly weighing in with guidance and future judgments.
