Supreme Court Recognizes the Tort of Intimate Partner Violence

By: Susan Emam.

For over a year, family law practitioners and interest groups across Canada have been waiting with bated breath for the Supreme Court of Canada’s decision in Ahluwalia.[1] Earlier this month, the decision was finally delivered, solidifying Canada’s recognition of the tort of intimate partner violence in a 6-3 judgment.

Factual Background

The appellant wife and respondent husband were married for 16 years.[2] For the duration of their marriage, the respondent abused the appellant physically, emotionally and financially. She was subjected to physical assaults, humiliation, intimidation, conduct intending to inflict emotional distress, isolation from family members, mistreatment as a means of pressure for sex, and financial control.[3]

During divorce proceedings, the appellant requested damages for the abuse she endured from the respondent. The Ontario trial judge awarded her $150,000 in compensation, aggravated, and punitive damages characterized for the novel tort of family violence. This decision was overturned at the Ontario Court of Appeal. While the appellant court recognized that family violence is a pervasive social issue, it disagreed that a tort of domestic violence or coercive control should be recognized.[4] 

SCC Legal Analysis

Writing for the majority, Honourable Justice Kasirer clarified that the proposed tort of intimate partner violence would need to fill a gap in the existing law to be valid. Extending beyond this gap would risk exceeding the proper role of the courts in the incremental development of tort law.[5] Accordingly, the facts in Ahuwalia would need to satisfy the legal test for recognizing a novel tort, as articulated in Nevsun Resources Ltd. v. Araya, 2020 SCC 5:[6] 

1.    The facts must show a wrongful act that offends a recognized legal interest in private law.

2.    Existing torts and their associate remedies must be inadequate and incapable of capturing the nature and scope of the wrong.

3.    Where a novel tort is tailored to address the wrong in a manner consistent with the purposes of tort law, the parameters of tort law and the parameters of the proper role of the judiciary. 

The Court found that intimate partner violence involves a unique pattern of coercive control which can be visible (such as physical, sexual or emotional abuse) or less visible (economic control or monitoring movements). Intimate partner violence causes distinct harms because it undermines a victim’s autonomy and erodes the equality of the relationship. As a result, it denies the victim’s dignity and inherent worth as a person. It is not experienced uniformly and is a cumulative pattern of conduct, rather than episodic or incident based abuse.[7]

            The Court found that existing torts failed to remedy the specific wrongs caused by intimate partner violence. Torts of battery and assault are often episodic in nature and do not adequately capture the interference or the victim’s autonomy. The tort of intentional infliction of emotional distress is further constrained to emotional harm and does not account for the deprivation of autonomy. While these torts may overlap with intimate partner violence in part, plaintiffs would ultimately obtain an incomplete remedy.  Accordingly, the tort of intimate partner violence met all three factors of the Nevsun test.[8] 

The Tort of Intimate Partner Violence

At paragraph 184, the court articled the following legal test which must be met to establish the tort of intimate partner violence:[9] 

1.    The abusive conduct arose in an intimate partnership or its aftermath. 

2.    The defendant intentionally engaged in that conduct.

3.    the conduct, on an objective measure, constitutes coercive control. The harm associated with coercion flows from proof of the wrongful conduct. The interference with an intimate partner’s dignity, autonomy, and equality itself constitutes the harm experienced by the victim of coercive control.

This tort does not require the plaintiff to prove any consequential harm separately. Once established, quantum and compensatory damages may be awarded. The Court also provided guidance of some types of conduct that would constitute coercive control under this tort: physical and sexual violence; emotional and psychological abuse, including verbal abuse; harassment, humiliation, and denigration; financial control, stalking, and surveillance; behaviour that isolates a partner from others, or that denies a partner access to educational, employment, and recreational opportunities; litigation abuse; and threatening conduct, including threatening to harm the children or take them away, and threatening to commit suicide.[10] 

What does this mean for family law practice in BC?

The Court held that the tort of intimate partner violence is separate from existing remedies available under the federal Divorce Act and provincial Family Law Acts. These statutory claims provide equitable or compensatory mechanisms which mitigate the economic consequences of a relationship breakdown.[11] They do not provide compensation to remedy past civil wrongs. Conversely, the tort of intimate partner violence provides remedies to provide justice to victims and to correct wrongdoing.[12] 

The tort of intimate partner violence can be relevant in claims involving parenting and contact orders, or where misconduct impacts one party’s ability to be self-sufficient. The Court directed that tort-based and statutory claims arise from two analytically distinct inquiries. The appropriate sequence to hear each claim is further dependent on the trial judge’s discretion.[13] 

 Closing Remarks

The foundational Ahluwalia decision settles this controversial area in family law and serves as a victory for victims of, and advocates against, intimate partner violence across Canada. We have provided a list of resources below if you or someone else you know is experiencing intimate partner violence and requires support.

The Okanagan Thompson Legal Clinic (“OTLC”) provides free legal representation to individuals located in the Okanagan Thompson region. Our Family Law Advocates provide clients with assistance related to family law issues, and our Staff Lawyers provide limited legal representation in family law court proceedings. We also offer full representation for residential tenancy, human rights, employment, and other general civil litigation matters. If you require legal advice or assistance, submit an inquiry through our website or send us an email at info@bclegalclinic.com or phone us at 236-425-9120.   

Support Resources

Across BC

• VictimLinkBC

  Phone: 604-875-0885; 1-800-563-0808

  Email: VictimLinkBC@bc211.ca 

  
  

• Battered Women’s Support Services

24/7 Crisis and Intake Telephone: 1-855-687-1868

Text Message in crisis: 604-652-1867

Crisis email: intake@bwss.org

  Okanagan

• Pathways Central Okanagan - Kelowna Women’s Shelter

  24/7 Crisis and Intake Telephone: 250-763-1040Text Message: 236-970-0704Crisis email: support@kelownawomensshelter.ca

• Central Okanagan Emergency Shelter Society

  PO Box 20193, RPO Towne Centre, Kelowna, BC, V1Y 9H2

  Telephone: 250-763-1040

  
  

• Family Resource Center for the North Okanagan

  3407 27th Avenue, Suite 201, Vernon, B.C.,V1T 1S1

  Phone: 250-545-3390

  
  

•  Interior Health Authority/ Enderby Community Health

  707-3rd Ave.,Enderby, BC V0E 1V0

  Phone: 250-838-2450

  
  

• South Okanagan Victim Assistance Society

  204-304 Martin Street, Penticton, BC V2A 5K4

  Phone: 250-493-0800

  
  

Kamloops/Thompson Nicola

• Y Women's Emergency Shelter

  24/7 Hotline: 250-374-6162 

  Phone: 250-682-7931

  
  

• The Tree 

  657 Seymour St, Kamloops, BC V2C 2H2

  Phone: 250-377-6890

  
  

•   Kamloops Women’s Resource Group Society

  353 Tranquille Rd, Kamloops, BC V2B 3G4

  Phone: 250-554-1112

  
  

• The Shuswap Family Centre

  681 Marine Park Dr, Salmon Arm, BC V1E 2W7

  Phone: 250-832-2170

  
  

Sources and Authorities

[1] Ahluwalia v. Ahluwalia, 2026 SCC 16 (Ahluwalia).

[2] Ahluwalia at para 86.

[3] Ahluwalia at para 1.

[4] Ahluwalia at para 2.

[5] Ahluwalia at para 94.

[6] Nevsun Resources Ltd. v. Araya, 2020 SCC 5 at para 237.

[7] Ahluwalia at para 126-138.

[8] Ahluwalia at para 139-160.

[9] Ahluwalia at para 184.

[10] Ahluwalia at para 207.

[11] Ahluwalia at para 211.

[12] Ahluwalia at para 214-215.

[13] Ahluwalia at para 220.