In the recent decision of Ahluwalia v. Ahluwalia, the Supreme Court of Canada (SCC) recognized a new common law tort of intimate partner violence, reversing in part the Ontario Court of Appeal’s (ONCA) earlier conclusion that existing torts adequately addressed the harms of coercive and controlling conduct in intimate partner relationships. The decision is a landmark development in Canadian family law and tort law, and it directly affects how civil claims arising from family violence will be pleaded, proven, and compensated across the country, including in British Columbia.
The SCC’s decision builds upon and substantially reframes the analysis we previously discussed when the ONCA released its 2023 decision in the same litigation.
Family Violence, Tort Claims & the Recognition of Coercive Control
Ms. Ahluwalia and Mr. Ahluwalia were married for sixteen years. The trial judge found that, throughout that marriage, the husband subjected the wife to a sustained pattern of physical assaults, humiliation, intimidation, isolation from her family, sexual pressure, and financial control. The trial judge characterized the conduct as a campaign of coercion and control designed to break the wife’s will.
In the context of divorce proceedings, the wife sought sole decision-making responsibility for the children, child support, spousal support, property equalization, sale of the matrimonial home, and damages in tort for the abuse she suffered. The trial judge recognized a novel tort of “family violence” and awarded $50,000 in compensatory damages, $50,000 in aggravated damages, and $50,000 in punitive damages. In the alternative, the trial judge would have awarded the same amounts under the existing torts of assault and intentional infliction of emotional distress.
The ONCA disagreed with the recognition of a new tort, set aside the $50,000 punitive damages award, but otherwise affirmed the $100,000 award under the existing torts. The wife appealed to the SCC on the question of whether a new tort should be recognized.
The Majority Decision: A New Tort is Required
The Framework for Recognizing a New Tort
The Court reaffirmed that the common law develops incrementally. A new cause of action is justified only where (i) the facts demonstrate a wrongful act offending a recognized legal interest in private law; (ii) existing torts and remedies are inadequate to capture the nature and scope of the wrong; and (iii) the proposed new tort can be carefully tailored to fill the gap without exceeding the proper role of the courts.
The majority emphasized that where capturing the impugned conduct would require redrawing the boundaries of an existing tort, it may be preferable to recognize a new cause of action to fill the gap rather than distort the existing law.
Intimate Partner Violence Is a Qualitatively Distinct Wrong
The majority described intimate partner violence as conduct that goes beyond discrete acts of physical or psychological injury. At its core is coercive control: a pattern of conduct, often including methods of control that are less visible than physical violence, by which one partner overpowers the will of the other and deprives them of their autonomy.
The harms of coercive control are not adequately captured by the language of physical or emotional injury. Rather, they engage three further interests: dignity, autonomy, and equality within the intimate partnership itself. By undermining a victim’s ability to make meaningful choices about their own life, intimate partner violence renders the partnership unequal and inflicts a dignitary injury that persists beyond any individual incident and often well past separation.
The majority was careful to distinguish coercive control from the ordinary friction of relationship breakdown. Dishonesty, infidelity, emotional neglect, and disagreement may cause an intimate partnership to deteriorate without amounting to coercive control. The new tort is not intended to capture every high-conflict breakdown, but rather conduct that, viewed in context, amounts to an assertion of control depriving the other partner of their dignity, autonomy, and equality.
Existing Torts Are Inadequate
The majority concluded that none of the established torts — battery, assault, or intentional infliction of emotional distress — captures the full scope of the wrong:
The torts of battery and assault are episodic in nature. Battery protects physical autonomy in the narrow sense of unwanted contact; assault requires the apprehension of imminent harmful contact. Neither captures the generalized fear and ongoing subordination that characterize coercive control, nor non-physical tactics such as financial abuse, surveillance, or isolation.
Intentional infliction of emotional distress requires flagrant or outrageous conduct producing a visible and provable illness. Many manifestations of coercive control are recurrent and low-level rather than flagrant, and may not produce a clinically identifiable psychiatric injury, leaving victims without remedy under this tort.
Even aggravated damages under existing torts do not redress coercive control as a distinct wrong. Aggravated damages address the manner in which a recognized tort was committed; they cannot supply a cause of action where the underlying tort does not capture the wrongful conduct in the first place.
In the majority’s view, requiring plaintiffs to “force facts into the strict confines of existing torts” to obtain only an incomplete remedy does not advance access to justice for victims of intimate partner violence.
The Elements of the New Tort of Intimate Partner Violence
The majority defined the new tort of intimate partner violence as requiring three elements:
1. Intimate Partnership
The abusive conduct must have arisen in the course of an intimate partnership or in its aftermath. The Court described an intimate partnership as a relationship of close personal connection, sustained over a period of time, and marked by mutual interdependence, care or commitment.
2. Intentional Conduct
The defendant must have intentionally engaged in the impugned conduct. Significantly, the plaintiff is not required to prove that the defendant subjectively intended to control or dominate the plaintiff, only that the conduct itself was intentional.
3. Objective Coercive Control
The conduct, viewed cumulatively and on an objective standard, must constitute coercive control. The test is whether a reasonable person, fully apprised of the relevant context of the relationship, would perceive the defendant’s acts as amounting to an assertion of control over the plaintiff that has the effect of depriving the plaintiff of their dignity, autonomy, and equality in the relationship.
The majority identified, for guidance, a non-exhaustive list of conduct capable of constituting coercive control:
- Physical and sexual violence;
- Emotional and psychological abuse, including verbal abuse;
- Harassment, humiliation, and denigration;
- Financial control, stalking, and surveillance;
- Isolation from family, friends, or community;
- Denial of access to educational, employment, or recreational opportunities;
- Litigation abuse; and
- Threatening conduct, including threats to harm or remove the children or threats of suicide.
Critically, the plaintiff is not required to prove consequential harm as a separate element. Harm flows from proof of the wrongful conduct itself. This is a significant departure from the proof requirements under battery, assault, and intentional infliction of emotional distress.
Cautions and Limits
The majority cautioned that courts must take care not to mischaracterize a victim’s resistance to a partner’s domination, or all misconduct in a high-conflict breakdown, as coercive control. An overinclusive tort risks exposing victims to retaliatory claims by perpetrators and may discourage victims from coming forward. Mere dysfunction or imbalance in an intimate partnership, absent coercive control, does not engage the new tort.
On damages, the parties had settled the quantum at $100,000 and did not contest that figure before the SCC. The majority, nonetheless, recharacterized the basis of the award. The trial judge’s allocation of $50,000 in compensatory damages and $50,000 in aggravated damages was modified to reflect that the entire $100,000 should be characterized as general compensatory damages under the new tort of intimate partner violence. The injury to dignity, autonomy, and equality is, under the new tort, part of the general compensatory analysis rather than an aggravating feature of some other wrong. The $50,000 in punitive damages that had been set aside by the ONCA was not restored.
Implications for British Columbia Family Law
Although Ahluwalia arose in Ontario, the SCC’s recognition of a new common law tort is binding throughout Canada. For litigants and counsel in British Columbia, several practical implications follow.
Co-Existence of Family Law and Civil Tort Claims
The tort sits alongside, not in place of, existing statutory protections. The Family Law Act continues to govern protection orders and conduct orders. Those statutory remedies are forward-looking and protective. The new tort is a backward-looking civil claim for damages, and the two tracks can run in parallel.
Civil tort claims can be joined to family law proceedings. Consistent with the developing jurisprudence in this area, claims under the new tort of intimate partner violence may be pleaded and tried alongside claims for divorce, property division, and support, subject to the usual principles regarding the order in which financial issues are addressed.
Change in Evidentiary Focus
The evidentiary focus shifts. Plaintiffs will now plead and prove a pattern of conduct that, viewed cumulatively, amounts to coercive control. Discrete incidents remain relevant — and may still ground claims in battery, assault, or intentional infliction of emotional distress — but they need not be packaged individually to fit existing tort categories. Conduct such as financial control, surveillance, isolation, and litigation abuse, which may previously have been difficult to capture, now has a clear doctrinal home.
Consequential harm need not be separately proved. Plaintiffs who have endured coercive control but who do not present with a “visible and provable” psychiatric illness no longer face the evidentiary barrier that has historically constrained intentional infliction of emotional distress claims in this context.
Calculation of Damages
The calculation of damages will continue to evolve. Ahluwalia itself did not settle the proper range of damages for the new tort. The trial judge’s $100,000 award, re-characterized as general compensatory damages, will inevitably be the starting point for argument in subsequent cases, but the calibration of awards under a tort framed around dignity, autonomy, and equality remains to be worked out.
Meridian Law Group: Vancouver Family Lawyers Advising on Family Violence and Coercive Control
Recognition of a new tort of intimate partner violence does not change the gravity of the underlying conduct, but it does change how these matters will proceed in British Columbia. Strategic advice at the outset — on whether and how to plead a tort claim, how to coordinate it within family law proceedings, and how to assemble the evidence required to meet the new objective test — is essential.
The family lawyers at Meridian Law Group have experience advising clients on family violence issues, including protection orders, conduct orders, and the civil consequences of abusive conduct in intimate partnerships. The firm provides discreet, strategic, and evidence-driven representation to clients dealing with these difficult disputes.
Meridian Law Group is located in the Nelson Square Building in downtown Vancouver and represents clients throughout British Columbia, including West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To schedule a confidential consultation with an experienced family lawyer, please contact the firm online or call (604) 687-2277.
