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Presentation - Family. Ahluwalia v. Ahluwalia
In Ahluwalia v. Ahluwalia (SCC, 2026) the Supreme Court of Canada establishes of a new tort of 'Intimate Partner Violence'.
Here the considered self-presentation in a family law context:[62] The fact that Ms. Ahluwalia was self-represented provides additional context to understanding how the trial proceeded. The Ontario Family Law Rules, O. Reg. 114/99, “were enacted to reflect the fact that litigation in family law matters is different from civil litigation. . . . They embody a philosophy peculiar to a lawsuit that involves a family” (Frick, at para. 11, per Benotto J.A.). Specifically, these family law rules provide judges with the flexibility “to deal with cases justly” through “active management of cases” (r. 2(2), (3) and (5); see also N. Bala, M.-J. Maur and C. Houston, Family Law: Text, Cases, Materials & Notes (11th ed. 2025), at p. 31), which may include “the raising of substantive and evidentiary issues” (Kainz v. Potter (2006), 2006 CanLII 20532 (ON SC), 33 R.F.L. (6th) 62 (Ont. S.C.J.), at para. 65). It is of course true that “[a] self-represented party cannot expect special treatment if they chose to represent themselves” (para. 64). The trial judge underscored that Ms. Ahluwalia “must be held to the same standard as a party represented at trial” (para. 35). Nevertheless, judges presiding over family law matters must be alive to barriers that self-represented litigants face, particularly where domestic violence is alleged (R. Birnbaum, N. Bala and L. Bertrand, “The Rise of Self-Representation in Canada’s Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants” (2012), 91 Can. Bar Rev. 67, at pp. 89-90; see also Barreto v. Salema, 2024 ONSC 4972, 11 R.F.L. (9th) 31, at paras. 16-18; Canadian Judicial Council, Statement of Principles on Self-represented Litigants and Accused Persons, September 2006 (online)). In this context where judges are called on to take “a practical and principled approach to pleadings”, the emphasis on substance over form takes on particular significance (Sethi, at para. 46). In the present appeal, Benotto J.A. acknowledged Mr. Ahluwalia’s procedural unfairness argument but declined to address it. The trial judge plainly acted within her authority, with due sensitivity to Ms. Ahluwalia’s status as a self-represented litigant in a family law proceeding, and Mr. Ahluwalia suffered no prejudice associated with what he alleged as procedural unfairness.
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