From 11 to 12 February 2025, the Supreme Court of Canada heard oral arguments in Ahluwalia v Ahluwalia to determine if a tort of family violence should be recognized.
In 2022, a tort of family violence was recognized by the Ontario Superior Court of Justice in Ahluwalia v Ahluwalia, a case in which Ms. Ahluwalia was subjected to physical violence, economic abuse, and coercive control at the hands of her long-time husband, Mr. Ahluwalia. This tort was short-lived, however, as the Ontario Court of Appeal (ONCA) unanimously overturned it the following year. The ONCA determined that, on the facts of the case, pre-existing intentional torts were sufficient to award Ms. Ahluwalia damages. This decision ultimately led to a reduction in the damage award from $150,000 to $100,000, as the ONCA ruled that the trial judge erred in awarding $50,000 in punitive damages.
Counsel for Ms. Ahluwalia argued that recognizing a tort of family violence is an incremental development in tort law. As a global epidemic, intimate partner violence predominantly affects women, as they constitute the majority of victims.
They also argued that pre-existing torts (e.g., assault, battery, intentional infliction of mental suffering (IIMS)) are insufficient in encompassing the complexities of family violence. These torts also do not recognize the “relentless day-to-day culture of [family] violence,” nor do they address the forms of family violence uncaptured by pre-existing torts, like coercive control. Similarly, they argued that those who have historically sought remedies for family violence received lower damage awards than those harmed by a stranger. This is particularly due to the absence of an existing framework that provides victims with damage awards that are proportionate to the abuse they faced in a family violence environment. They also suggested that a tort of family violence would help victims circumvent the complexities of navigating numerous discrete torts and their evidentiary thresholds and tests, at the same time.
Ms. Ahluwalia’s counsel maintained that finding a tort of family violence would align with the rule of law by providing a uniform approach to addressing family violence as opposed to a fragmented one. They argued that this approach would align with the legal system’s objective of promoting access to justice, and equality rights under Section 15 of the Canadian Charter of Rights and Freedoms.. A recognition of the unique, patterned, and gendered nature of violence would ensure that individuals would receive equal benefit and protection of the law, as guaranteed by Section 15.,
Additionally, contrary to the Mr. Ahluwalia’s counsel’s view that the Supreme Court should not make statements on values, Ms. Ahluwalia’s counsel countered that the Supreme Court of Canada has the capacity to do so, noting that it has, in fact, recognized and denounced family violence in the past (e.g., in R v Lavallee (1990)).
Counsel for Mr. Ahluwalia suggested that finding a tort of family violence is inconsistent with the need to make small and incremental changes in the law. They maintained that the legislature is better equipped to facilitate major reforms in the legal system. They also argued that pre-existing torts were sufficient to respond to Ms. Ahluwalia’s victimization. For instance, they argued that the tort of IIMS could be used to address coercive control and that the existing torts like assault, battery, and IIMS can be applied to respond to repeated abuse, not solely isolated incidents of abuse. Additionally, counsel suggested that the high-profile nature of this case has resulted in judges granting victims higher damages in similar cases. They also expressed concern that a tort of family violence would lower the standard for impugned conduct.
In my view, it would be extremely symbolic if the Supreme Court recognized a tort of family violence. The opportunity has presented itself for the Supreme Court to publicly denounce intimate-partner violence—a major, extremely prevalent, and life-threatening form of violence. Although Mr. Ahluwalia’s counsel argues that the legislature would be better equipped to respond to intimate-partner violence, case law (i.e., judge-made law) sets precedents; the Supreme Court finding a tort of family violence would ensure that future judges are guided by the decision, ultimately creating more consistency in the legal system’s approach to addressing similar cases. Finding a tort of family violence would also fill the gap that currently exists in the legislature’s lacking response to family violence.
It is also important to mention that women and children are disproportionately represented among victims of family violence. Finding a tort of family violence sends a powerful message that there is something intrinsic about family violence that warrants its own legal remedy. Its gendered, repetitive, and cyclical nature creates an environment of abuse for victims, which warrants recognition. Not to mention, recognizing this tort could lead to the development of a more consistent and principled approach to family violence. It would also increase victim compensation, leading to damage awards that are more proportionate to the harms they have been subjected to.
The fact that this case has attracted the attention of judges nationwide does not mean that all judges will award higher damages to survivors. In my view, it is simply not a reliable nor sustainable solution to expect judges to award higher damages without the existence of a family violence tort.
During the hearing, Justice Jamal asked, “Do we need a new tort or simply a new attitude?” I believe that a new tort would allow for “a new attitude” and culture change in the way tort law responds to intimate-partner violence. Without this tort and guidance on how family violence should be approached in tort law, it will be difficult to guarantee a consistent, trauma-informed, and intersectional approach to family violence, which a tort of family violence would provide.
Pre-existing torts are insufficient at addressing the social nature of family violence because they individualize the response to this violence, and obscure the social dimensions of this violence. For example, forcing victims to meet the evidentiary thresholds of multiple torts to correspond with different types of abuse they have been subjected to individualizes the response and treats it insufficiently as a whole. A tort of family violence, instead, would capture its gendered nature and its effects on every aspect of victims’ lives, in turn creating a more uniform and efficient mechanism for victims to prove their claims.
As an intervenor in the case, the Barbra Schlifer Commemorative Clinic argued that recognizing a tort of family violence would not open the “floodgates” of litigation nor contribute to an increase in false family violence claims, which I agree with. Many family violence victims do not report their victimization, let alone pursue legal recourse for their victimization. Having this tort would guarantee that those who are victimized are awarded proportionate compensation and create a deterrent effect in holding perpetrators of this violence accountable.
The Supreme Court’s granting of leave to this case was monumental, particularly because they did so despite both the appellant and respondent not requesting a change in damages. This is demonstrative of the fact that the Court has determined that the issue of family violence is of nationwide importance and recognition. We can expect the Court to provide their written judgment on this case within the next six to nine months.
If you are interested in learning more about the case, you can visit the Supreme Court of Canada’s website to read their factums and listen to the recordings of their submissions. If you are interested in family law, reach out to the Osgoode Hall Family Law Association.