In a landmark decision, the Supreme Court of Canada has recognized a new tort of intimate partner violence. This new tort seeks to give plaintiffs a clearer basis to seek compensation in the civil courts for patterns of abuse that do not fit neatly within traditional tort claims.
In Ahluwalia v. Ahluwalia,[1] Justice Kaiser, writing for the majority, found that existing torts in Canadian law did not adequately address the issue of intimate partner violence. To establish the tort of intimate partner violence, a plaintiff must show:
- the abusive conduct arose in an intimate partnership or its aftermath;
- the defendant intentionally engaged in that conduct; and
- the conduct, on an objective measure, constituted coercive control.[2]
In developing the elements of the tort, the Court sought to capture the patterned and cumulative nature of intimate partner violence. The new tort does not require the plaintiff to prove consequential harm from any one specific act; the harm flows from the coercive control itself and the resulting interference with the plaintiff’s dignity, autonomy, and equality, which the Court recognized as fundamental tenets of intimate relationships. Moreover, it requires courts to consider the context in which the abusive conduct occurred and the coercive behaviour in all of its manifestations.
For more information on the Ahluwalia decision, please also see our previous blogs discussing the Court of Appeal decision and the application for leave to apply to the Supreme Court of Canada.
Why the Current Torts in Canada are Insufficient to Address Intimate Partner Violence
The Court recognized that intimate partner violence is more than the sum of its parts; intimate partner violence may involve physical violence, emotional abuse, or coercive control, but the totality of that conduct takes a different meaning in the context of an intimate relationship. This conduct causes more than physical or psychological harm and results in a dignitary harm by interfering with the victim’s autonomy and creating an unequal partnership between the parties.[3] Justice Kaiser concluded that:
“At the heart of intimate partner violence is a wrongful interference not just with physical or psychological integrity, as with the established torts, but with an intimate partner’s autonomy, rendering the victim unequal in the partnership. This is a qualitatively distinct harm from that caused, for example, by other forms of trespass to the person. The wrongful conduct interfering with autonomy may partly overlap with conduct that interferes with one’s bodily or psychological integrity. Abusive conduct often includes, as this case demonstrates, physical or emotional violence but extends beyond it. Individual incidents of physical abuse cause harm, as they would to anyone, but within an intimate partnership they also serve to subordinate the partner.
Existing torts, whether separately or together, cannot remedy the full scope of the injury inflicted by intimate partner violence, specifically the coercive conduct at issue here. Although these torts capture conduct that may, in part, overlap with intimate partner violence, plaintiffs must adduce evidence of the abuse they experienced to fit into these existing legal categories only to obtain an incomplete remedy. This approach inevitably leaves aspects of the wrong and the injury unaddressed. Forcing facts into the strict confines of existing torts is both out of step with the incremental development of tort law and does not advance access to justice for victims of intimate partner violence.”[4]
The Court further noted that:
- Torts such as battery and assault are often episodic in nature and focus on the fear of imminent harm. These torts do not capture the interference to the victim’s autonomy caused by coercive control and intimate partner violence, and the generalized fear of future harm; and
- The tort of intentional infliction of emotional distress (“IIED”) only addresses “flagrant or outrageous” conduct, which may fail to capture frequent, recurrent, and low-level forms of abuse indicative of coercive control. Further, IIED remedies psychological and emotional harms and requires that plaintiffs prove that they suffer from a visible and provable psychological illness. As such, the tort of IIED will not address methods of coercion that do not often produce such illnesses, such as economic or financial abuse.
The Tort of Intimate Partner Violence Applied
The Court applied this newly designed tort to the case at hand. Over the course of their sixteen-year marriage, Mr. Ahluwalia subjected Ms. Ahluwalia to various forms of abuse and coercive control. In applying the test for the new tort of family violence, the Court found:
- Did the alleged acts arise in an intimate partnership or its aftermath? – Yes. The parties shared a common life of interdependence throughout their sixteen-year marriage, wherein Ms. Ahluwalia was responsible for the household and childcare and Mr. Ahluwalia financially supported the family.
- Did the defendant intentionally engage in the allegedly abusive conduct? – Yes. The trial judge found that Mr. Ahluwalia engaged in physically violent and abusive conduct throughout their marriage and separation. Further, these acts of physical violence occurred amidst prolonged emotional, psychological, and verbal abuse and financial control.
- Does the abusive conduct, on an objective basis, constitute coercive control? – Yes. A reasonable person would understand the abusive conduct to be calculated to produce harm, dominate the parties’ relationship, and deprive Ms. Ahluwalia of her autonomy. The abusive conduct caused Ms. Ahluwalia to suffer a loss of autonomy, self-worth, and dignity and left her in a subordinate position.
Although Ahluwalia creates a new civil avenue for victims of intimate partner violence, bringing such a claim may not be straightforward. As noted in Justice Jamal’s dissenting reasons, this is a highly fact-specific tort which has only recently been recognized, and lower courts will face difficulties in interpreting and applying the new elements of the tort, defining its scope, and quantifying damages.[5] The lack of jurisprudence may serve as a barrier to access to justice and complicate recovery for victims of intimate partner violence.
Individuals seeking to bring a claim in the new tort of intimate partner violence should seek legal advice as soon as possible. An experienced family lawyer can determine what remedies are available, assist in navigating the complex legal landscape of the tort of intimate partner violence, and determine the most effective path forward.
If you have questions about your family law matter or the new tort of intimate partner violence, please visit our website and contact the Family Law Team at Devry Smith Frank LLP.
This article was co-authored by summer student Erik Mayer.
This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.
[2] Ibid at para 184.
[3] Ibid at para 140.
[4] Ibid at paras 143-144.
[5] Ibid at paras 298, 396.
