The Newest Addition to the Family: The Tort of Intimate Partner Violence

By Vanessa Lam, Strategic Advisor and Research Lawyer, Lam Family Law*

It is with great joy that the Supreme Court of Canada – Wagner C.J. presiding, joined by Kasirer, Martin, O’Bonsawin, Moreau, and Karakatsanis JJ. — announces the birth of:

This was a long and difficult case, and Ms. Ahluwalia’s courageous pursuit of this case and contributions to family law remedies should be acknowledged.

The Elements

This long-awaited decision, Ahluwalia v. Ahluwalia, 2026 SCC 16 (CanLII), created the new tort of intimate partner violence. To establish this tort, the plaintiff must prove three elements:

1. the abusive conduct arose in an intimate partnership or its aftermath;
2. the defendant intentionally engaged in that conduct; and
3. the conduct, on an objective measure, constitutes coercive control: at para 184.

Notice that the abusive conduct may arise in the partnership’s “aftermath”. The majority of the Supreme Court of Canada (in a decision written by Justice Kasirer) recognized litigation abuse, for the first time, noting as follows (at para 194, citing various sources and cases):

…abusers frequently utilize litigation as a tool “to continue to dominate and maintain contact and control following separation” and to deflect attention from their own role as the aggressor… Litigation abuse — where intimate partners utilize the legal system as a tool “to coerce, control, harass, undermine and dominate” their intimate partners — is a well-documented tactic frequently employed by abusers to control survivors…

The intentional requirement only requires the plaintiff to “show that the defendant intended to engage in the impugned conduct, not that they subjectively intended to control their intimate partner.”: at para 207.

The majority does not give one definition of “coercive control”. However, it described how coercive control is “a distinct manifestation of intimate partner violence” that is not acknowledged as a wrong under existing torts. This is the “identifiable gap that justifies the creation of a new tort”: at para 16.

The Court recognizes that intimate partner violence is not confined to conduct that inflicts physical or psychological injury, but includes all abusive conduct by which one intimate partner coerces and controls the other, thus depriving them of their autonomy: at para 120.

Coercive control is “a way to encompass and understand the use of a range of behaviours to control and restrict victims”, rather than being a specific form of conduct: at para 190. It has been broadly described as conduct that non-exhaustively includes:

• tactics of isolation;
• manipulation;
• humiliation;
• surveillance or controlling behaviour such as stalking, monitoring activities, and financial control;
• physical, psychological, sexual, and economic abuse;
• intimidation that can control, isolate, and entrap intimate partners;
• litigation abuse; and
• preventing the victim from seeing family and friends, working, or participating in other educational or recreative activities: at paras 187 & 190.

Damages

Proof of the above three elements suffices to establish that the plaintiff has suffered a “dignitary harm”. Harm flows from proof of the intentional wrong because coercive control directly interferes with the plaintiff’s legal interests in dignity, autonomy, and equality within an intimate partnership. The plaintiff does not need to show any consequential harm separately: at paras 184 & 209.

The majority was also clear that aggravated damages where the harm occurs in an intimate partnership under existing torts was an insufficient remedy. Under the new tort of intimate partner violence, the intimate partner context is not merely an aggravating factor – it is an element of the tortious conduct itself: at para 9.

On the facts in Ahluwalia v. Ahluwalia, the parties were not appealing the $100,000 in general compensatory and aggravated damages: at para 221.

However, Justice Kasirer, writing for the majority, commented that general compensatory damages must fully redress the injury to the victim’s autonomy arising from a conduct amounting to coercive control. The damages awarded must acknowledge and fully compensate the plaintiff for that harm, “without discount or exceptionalism” that could treat harm involving intimate partners as less serious. It would be an error to presume that the violence that occurs in the context of an intimate partnership is somehow less damaging: at para 227.

Applied to the facts, the $100,000 damages award was modified to be for compensatory damages only, since the conduct that the trial judge considered as warranting compensatory damages fell within the scope of the tort of intimate partner violence itself. There may be other cases where aggravated damages meant to compensate for malicious conduct not otherwise covered should be awarded. However, the harm here fell fully under general compensatory damages: at para 248.

How the Tort Fits with Other Family Law Claims

Tort liability for abusive conduct gives rise to damages that aim to remediate, punish, deter, and vindicate. By contrast, family law statutory remedies typically seek to resolve economic consequences of relationship breakdown on a basis other than fault: at para 210.

Unlike the Court of Appeal for Ontario (“ONCA”), who opined that statutory claims should be the starting point rather than a tort claim, the majority of the Supreme Court of Canada held that it was up to the trial judge to determine the proper sequence of claims. Resolving the claim in tort first, before proceeding to the statutory claims, may be more conducive to a fulsome appreciation of the record and the facts. The key principle is to treat the tort-based and statutory claims as two analytically distinct inquiries, respecting their differing objectives: at paras 217 & 220.

The Concurring Reasons and Dissent

Justice Karakatsanis largely agreed with the majority decision written by Justice Kasirer (Chief Justice Wagner and Justices Martin, O’Bonsawin, and Moreau concurring). However, Her Honour would have expanded the third element of the tort to include conduct that, on an objective basis, constitutes coercive control “or violence that caused their intimate partner physical or psychological harm”: at para 252. In her view, this broader, “one-stop shop” tort would allow victims to advance all instances of intimate partner violence under one tort: at para 256.

The three judges who dissented, Justice Jamal (Justices Côté and Rowe concurring), were of the view that existing torts were already capable of addressing intimate partner violence. Their view was that courts should not create a new tort when existing ones fully compensate the plaintiff: at para 295. They also opined that the new tort would complicate the path to recovery for victims and inhibit access to justice: at para 383. For example, they expressed concerns over how to identify what precise behaviour would make out coercive control, and that large volumes of evidence would be needed to fully conceptualize how a reasonable person would evaluate the relationship: at paras 390-391.

Thus, while Justice Karakatsanis thought that the majority’s tort was too narrow, the dissenting judges thought that it was too broad. The majority occupied a middle ground that ultimately carried the day.

The Implications

A few important takeaways from this landmark decision:

1. The focus on harm to dignity, autonomy, and equality means that expert evidence will not typically be needed to show the elements of the tort.
2. The case law on the appropriate amount of damages still needs to be developed. Here, expert evidence may be required. A plaintiff seeking tort law damages may also be opening themselves up to the other party seeking disclosure of documents like therapy and medical records.
3. Lawyers must already discuss family violence with their clients. Now, they also need to canvas whether to make a claim for the tort of intimate partner violence, or whether there is a risk that the opposing party will make a claim for this new tort.
4. Be careful about settlements and whether your client is waiving their ability to make a tort claim.
5. Remember that the existing torts may still be claimed, often as alternative relief. Assault and battery will remain, although the tort of intentional infliction of mental distress will likely no longer be useful in the family law context given its more onerous requirements to show “flagrant and outrageous conduct” and a visible and provable injury. For a recap of 10 existing torts that may arise in cases of family violence (from when the ONCA rejected the tort of family violence), see our previous blog post: ONCA Finds No Tort of Family Violence: Where Does that Leave Tort Claims in Family Law Cases Now?
6. There may be no limitation period for some claims for the tort of intimate partner violence in Ontario. This is currently an unsettled issue. There is no limitation period for claims based on sexual assault; based on any other misconduct of a sexual nature if, at the time of the misconduct, the defendant was in a position of trust or authority in relation to the plaintiff, or the plaintiff was financially, emotionally, physically or otherwise dependent on the defendant; or based on physical assault if, at the time of the assault, the parties had an intimate relationship or the plaintiff was financially, emotionally, physically or otherwise dependent on the defendant: Limitations Act, 2002, SO 2002, c 24, Sch B, s. 16(1)(h)-h.2). These no-limitation-period exceptions are not just limited to the assault claims themselves – they extend to related claims in the same proceeding; s. 16(1.3) & X.H. v. Cota, 2022 ONCA 274 (CanLII), at para 8.
7. It may be that an award of damages will survive a bankruptcy, but further clarity would be welcome on this issue. The federal Bankruptcy and Insolvency Act, RSC 1985, c B-3, at s. 178(1), sets out debts that an order of discharge does not release the bankrupt from. This list includes “(a.1) any award of damages by a court in civil proceedings in respect of (i) bodily harm intentionally inflicted, or sexual assault, or (ii) wrongful death resulting therefrom”. Thus, if the damages award included an amount for physical or sexual abuse, it would appear to survive bankruptcy.

*with thanks to Maria Golarz and Kayleigh Pink for their suggestions and edits.

This blog is informational only and should not be relied on as legal advice.