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Torts - Intimate Partner Violence (IPV) (2). 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 court considers this new tort, and torts generally, in a family law context:D. Situating Tort Claims in a Family Law Proceeding
[210] Adjudication of claims in tort can present difficulties for judges and the parties in family proceedings who must, at the same time, evaluate claims brought under different family law statutes. Tort liability for abusive conduct gives rise to damages that aim to remediate, punish, deter, and vindicate. By contrast, statutory remedies under applicable family law legislation typically seek to resolve economic consequences of relationship breakdown on a basis other than fault. The Court of Appeal decided that “[t]he starting point for a determination of financial issues arising from the marriage is the application of the statutory provisions” (para. 136). It concluded that “[w]hen claims other than those arising directly from the statute are raised in a family law proceeding, the statutory entitlements may inform those determinations” (para. 137). While I would not apply an ordering principle as an unbending rule in all cases, I agree that courts should be mindful of the risk of conflating separate inquiries based on different objectives.
(1) Statutory Remedies Have a Different Purpose Than Remedies in Tort
[211] Statutes such as the Divorce Act and the Family Law Act provide for equitable or compensatory mechanisms that mitigate the economic consequences of the breakdown of a relationship (Moge, at p. 864; Bracklow, at paras. 34 and 48; Stein v. Stein, 2008 SCC 35, [2008] 2 S.C.R. 263, at para. 25, per Abella J., dissenting). Family property schemes are in their detail nuanced, but as a general matter their orientation is to promote economic equality in marriage or certain relationships that are tantamount to marriage. Important to these schemes is the idea that marriage is “a joint economic endeavour” (Anderson v. Anderson, 2023 SCC 13, [2023] 1 S.C.R. 473, at para. 40). Support regimes under statute rest on fundamental principles of mutuality and interdependence (Bracklow, at para. 20). Choices made during such relationships, including those made voluntarily and in good faith, may leave one partner economically disadvantaged and dependent on the other. Legislation governing the provision of spousal and child support, as well as the division of family property, thus serves, in the main, to ensure that the economic consequences of separation remain equitable based on a fair division of labour between the partners in the relationship. Even in respect of the misconduct that justifies the unequal division of family property, for example, the relevant “economic fault” under statute is typically understood as a failure of one partner to contribute to the union as a joint economic endeavour. While that may coincide with intimate partner violence in some circumstances, the wrong is of a different character.
[212] As a general proposition, the remedial purposes of tort law may be achieved by relying upon the equitable or compensatory mechanisms provided in statute. One award may “impact” on the other, as the Court of Appeal suggested, but it is useful for present purposes to keep the remedies separate (para. 140). The equitable or compensatory considerations that underlie equalization provisions do not seek to rectify wrongdoing as between intimate partners in tort, but to account for the parties’ contribution in relation to family property. This is evident from a review of the relevant considerations enumerated in the Family Law Act. Section 5(6) notes for example the failure to disclose pre-existing debts or other liabilities (s. 5(6)(a)); the intentional or reckless depletion of family property (s. 5(6)(d)); the incurrence of a disproportionally large amount of debt or other liabilities (s. 5(6)(f)); or “any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property” (s. 5(6)(h)). The compensatory orientation of family property schemes is designed to address the contribution of each partner, in property or in services, to the acquisition of family property. Compensation to one partner by the other seeks to recognize those contributions, rather than address liability for a civil wrong, as in tort.
[213] The same observations can be made in respect of spousal support, which pursues various policy objectives that are enumerated in s. 15.2(6) of the Divorce Act and s. 33(8) of the Family Law Act. Those include recognizing any economic advantages or disadvantages arising from the marriage or its breakdown; apportioning between the spouses the financial consequences of caring for any children of the marriage beyond basic child support obligations; relieving any economic hardship resulting from the breakdown of the marriage; and promoting the economic self-sufficiency of each spouse within a reasonable time. As our Court observed in Bracklow, these “objectives reflect the diverse dynamics of the many unique marital relationships” (para. 35).
[214] Importantly, spousal support is predicated on financial needs and means, not on a formal finding of fault or misconduct in the sense relevant to the law of obligations in common law or civil law. Both s. 15.2(5) of the Divorce Act and s. 33(10) of the Family Law Act make this stipulation clear. As the Court noted in Moge, “the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party’s economic prospects” (pp. 848-49). Indeed, where spousal support has a “compensatory” character, it is designed to compensate one partner’s loss in earning potential for the future, tied to past division of labour within the marriage (p. 860). It is not compensation that seeks to make good on a past civil wrong, as in the case of civil liability in tort for fault.
[215] It may be that intimate partner violence coincides with conduct that shows the abuser to have failed to meet other obligations in the relationship. But it is best to underscore that remedies in tort pursue a different purpose. Tort law “operates to provide justice to victims and peace and security to society. It serves to punish wrongdoers, to deter wrongdoing, to compensate victims, and to vindicate rights” (Klar and Jefferies, at p. 11). Unlike the statutory entitlements described above, the purpose of tort law is to find fault and correct wrongdoing. Where damages are awarded, they are calculated on the basis of what the injured party has lost, and what is required to put them back into the situation they were in prior to the wrongful act (S. G. A. Pitel, “The Characteristics of Torts”, in E. Chamberlain and S. G. A. Pitel, eds., Fridman’s The Law of Torts in Canada (4th ed. 2020), 1, at p. 2).
[216] Of course, intimate partner violence may be the cause of financial disparities that emerge after breakdown. As will be discussed below, one party’s tortious conduct in the marriage may in fact have caused or exacerbated the other’s financial needs post‑separation. The relevance of such facts lies not in establishing fault in tort. Compensatory support under Moge seeks to make up — going forward — for lost earning power flowing from the division of labour in the marriage, not to compensate — looking backwards — for a civil wrong committed in the past. Instead, the need justifying support confirms, without more, that the partnership led to an economic dependency relevant to support. Nonetheless, because of the inevitable overlap in the material facts presented to the court, it is likely that judges will be called upon to make findings that are relevant both in tort and under statute. It will therefore be generally helpful to begin by addressing the claim in tort insofar as intimate partner violence, if established, may be relevant to other issues, including parenting post-separation.
(2) The Trial Judge Can Determine the Appropriate Sequence Between a Tort Claim and a Statutory Claim
[217] The trial judge began her analysis with the tort claim. After finding Mr. Ahluwalia liable and awarding damages to Ms. Ahluwalia, she considered child and spousal support, and equalization. The Court of Appeal disagreed with this approach, directing that the trial judge should have started with the application of the statutory provisions (para. 136). I understand the view that certain statutory claims, in particular child support, are understood generally to be of first-order importance. But in my respectful view, the trial judge was not required to begin her analysis with the statutory claims. In light of the allegations arising in this case, she was correct to turn first to Ms. Ahluwalia’s claim in tort in that her factual findings on that issue would likely inform how she would address certain statutory remedies while keeping the distinct orientation of those schemes in mind.
[218] Findings of intimate partner violence may indeed be relevant to a court’s decision of whether the misconduct had an impact on the other spouse’s ability to be self-sufficient (Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 21). In this case, the financial consequences of Mr. Ahluwalia’s conduct towards Ms. Ahluwalia are clear in the trial judge’s factual findings. Ms. Ahluwalia never kept any of her income during the marriage, her earnings were used solely for family expenses, and Mr. Ahluwalia closely monitored her spending habits (paras. 108-9). After separation, Mr. Ahluwalia closed all their joint accounts and unilaterally terminated the credit card Ms. Ahluwalia used to purchase groceries (para. 110). Mr. Ahluwalia had a complete hold over Ms. Ahluwalia’s finances, making her entirely financially dependent on him during the marriage and incapable of being self-sufficient immediately after the marriage. While these facts were key to the trial judge’s disposition as to the tort claim, their consequences on Ms. Ahluwalia’s “condition, means, needs and other circumstances” also informed entitlement to spousal support under s. 15.2(4) of the Divorce Act.
[219] A finding of intimate partner violence is also highly relevant to parenting and contact orders under the Divorce Act and the Children’s Law Reform Act. Both statutes stipulate that in considering the best interest of the child, the court must factor in the impact of family violence, including “whether there is a pattern of coercive and controlling behaviour in relation to a family member” (Divorce Act, s. 16(4)(b); Children’s Law Reform Act, s. 24(4)(b)).
[220] I would therefore not interfere with the trial judge’s chosen sequence. Where the record includes both statutory and tort-based claims arising from family violence, resolving the claim in tort, 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. Judges are best placed to determine the appropriate sequence in which the issues are to be addressed. They can tailor their orders to account for the primary needs of children under s. 15.3 of the Divorce Act. . Ahluwalia v. Ahluwalia [damages]
In Ahluwalia v. Ahluwalia (SCC, 2026) the Supreme Court of Canada establishes of a new tort of 'Intimate Partner Violence' (IPV).
Here the court considers damages for this new IPV tort - an issue that was complicated by an earlier party-agreement to settle quantum of damages:(3) Assessing Damages for the Tort of Intimate Partner Violence
[221] The trial judge awarded Ms. Ahluwalia $150,000 in damages: $50,000 in general compensatory damages for Ms. Ahluwalia’s depression and anxiety caused by Mr. Ahluwalia’s abuse, and loss of earning potential; $50,000 in aggravated damages for Mr. Ahluwalia’s “overall pattern of coercion and control and the clear breach of trust”; and $50,000 in punitive damages. She ordered that amount in relation to the tort of family violence and would have directed Mr. Ahluwalia to pay the same amount, in the alternative, based on proof of harm made under the existing torts of assault and IIED. The Court of Appeal noted that the damage assessment was higher than in previous cases. But it declined to interfere with the trial judge’s determination of general compensatory and aggravated damages based on deference and because it recognized the higher damage award reflected “an emerging understanding of the evils of intimate partner violence and its harms” (para. 128). The court overturned the punitive damages award on the ground that the trial judge had “made no finding that the award of general and aggravated damages was insufficient to achieve the goals of denunciation and deterrence” (para. 132). Both parties accept the Court of Appeal’s decision on this point, and have settled the quantum of general compensatory and aggravated damages at $100,000, an amount that is not at issue before the Court. Nevertheless, because the effect of the present judgment is to recognize a novel tort of intimate partner violence, the assessment of damages require comment in these circumstances.
[222] Consistent with the corrective function of tort law, the guiding principle in assessing the quantum of compensatory damages is that the award should restore the plaintiff to the position they would have been in had the specific wrong not occurred (Pitel, at p. 2). Quantifying the value of intangible losses, such as those associated with physical inviolability or emotional suffering is a notoriously difficult task. This is no less true for the measure of the losses associated with dignity, autonomy, and equality, resulting from coercive control. As this Court observed in the civil law case of de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64, at para. 27, “the exercise of reasoned discretion remains the rule, [and] the judge must also give as much priority as possible to following established judicial practice while adapting it to the specific circumstances of each case”. Of course, there is no body of Canadian precedents at this time with which to guide courts in awarding damages for the novel tort rooted in coercive control. Future damage awards must reflect the specific nature of the tort, its various manifestations, and the extent of the harm it causes to the victim’s dignity, autonomy, and equality.
[223] In her submissions, Ms. Ahluwalia denounces a “family discount” in the assessment of damages awarded for family violence (A.F., at para. 31). She cites a number of lower court decisions in which damages awarded to victims of family violence, usually women, were lower than what might be expected for similar conduct between strangers. She alleges that the “unconscionably low damage awards must occur as a result of a mindset that is infected with myths and stereotypes” (A.F., at para. 36 (emphasis in original)). Mr. Ahluwalia argues that the decisions relied on by Ms. Ahluwalia are outdated and do not reflect more recent trends in the caselaw in which the quantum of damages has increased, particularly in reaction to the Court of Appeal’s decision in this dispute.
[224] The phenomenon described by Ms. Ahluwalia is well documented. As an example, damage awards between intimate partners for violence involving a sexual element have often been lower than awards for the harm caused by sexualized violence outside intimate relationships. In Zando v. Ali, 2018 ONCA 680, the Court of Appeal upheld a $200,000 award for one instance of sexual assault between colleagues. In Badreddine v. Shapovalov, 2019 ONSC 4914, the court awarded the plaintiff $100,000 after the defendant was held liable for attempting to use a “date rape” drug on the plaintiff. In R.Y.H. v. Y. LTD., 2021 SKQB 28, the court awarded $100,000 in general and aggravated damages for a single incident of sexual assault. In Seymour v. Nole, 2022 BCSC 867, the court held the defendant liable for $272,300 in damages for non-consensual intercourse with the plaintiff while she was asleep. Such awards are difficult to reconcile with decisions like Hammond, where a comparable act in an intimate partnership yielded markedly lower damages of $10,000. While the court recognized that the wife was indeed entitled to “general damages for the affront to her dignity, as well as for the violation of her personal and physical autonomy” (para. 110) as discussed earlier, it concluded that “$10,000 in general damages [was] appropriate to compensate [the wife] for pain, suffering and loss of enjoyment of life, and to vindicate her dignity and personal autonomy” (para. 116).
[225] This reflects what some legal scholars refer to as an inappropriate “sexual exceptionalism”: the tendency to treat harm involving intimate partners as less serious, less credible, or less worthy of compensation than equivalent harm between strangers (Sowter and Koshan, at pp. 331-32; see also M. Chamallas, “Social Justice Tort Theory” (2021), 14 J. Tort Law 309, at p. 331; Eisen, at p. 199). Such exceptionalism can be perpetuated through myths and stereotypes relating to implied consent, marital harmony, and wives’ alleged propensity to fabricate. It reflects an unwillingness to recognize the full depth of their injury (J. Koshan, “The Judicial Treatment of Marital Rape in Canada: A Post-Criminalisation Case Study”, in M. Randall, J. Koshan and P. Nyaundi, eds., The Right to Say No: Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi (2017), 257, at pp. 259-60; Eisen, at pp. 195-97).
[226] Empirical data gathered over the past two decades supports Ms. Ahluwalia’s contention that damages in tort awarded for family violence more broadly tend to be comparatively low. In a 2007 review of 25 final decisions dealing with tort claims for spousal violence, author Laura Buckingham found that the court awarded less than $10,000 in 9 of them, and 6 cases were unsuccessful and therefore no damages were awarded at all (“Striking Back: The Tort Action for Spousal Violence” (2007), 23 Can. J. Fam. L. 273, at pp. 276 and 304; see also Kelly, at p. 335). And in a more recent survey of 65 final decisions relating to claims for damages for spousal violence released between January 2007 and January 2024, scholar Samantha Eisen found that the average damage award in family courts across all provinces was $43,512.57, with a median damage award of $17,500 (p. 191; see also the overview for Quebec in A. Lakhdar, “Octroi de dommages-intérêts pour la violence conjugale et l’aliénation parentale en matière familiale”, in Service de la qualité de la profession du Barreau du Québec, vol. 556, Développements récents en droit familial (2024), 77, especially at p. 115). This data supports the view that courts have historically failed to appreciate the full extent of the harm caused by violence within the context of an intimate relationship in part by decontextualizing the basis of liability from the intimate partner setting.
[227] Intimate partner violence is a social ill and a deep affront to one’s dignity. The common law’s remedial response against it must therefore be corrective and strongly denunciatory. This cannot occur when even those plaintiffs who make out their claim in court are unable to fully recover their losses due to myths or stereotypes. However, loss of dignity is not simply an aggravating factor that justifies a higher quantum of damages. As previously discussed, in the context of intimate partner violence, the interference with dignity is a feature of the tort itself: it is inherent to, and indissociable from, the conduct and its harm as is evident in respect of the elements of the new tort identified here. General compensatory damages, therefore, must fully redress the injury to the victim’s autonomy arising from a conduct amounting to coercive control. Violence that occurs at the hands of one’s intimate partner is arguably more harmful, or at least differently harmful, than violence at the hands of a stranger. Where a court is satisfied that the defendant’s tortious conduct arose in the context of intimate partner violence, the damages awarded must acknowledge and fully compensate the plaintiff for that harm, without discount or exceptionalism. It would be an error to presume that the violence that occurs in the context of an intimate partnership is somehow less damaging.
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[241] In light of the foregoing, I would set aside the order of the Court of Appeal in part. Rather than restore the order of the Superior Court in its entirety, I would recognize that Mr. Ahluwalia’s liability rests on the new tort of intimate partner violence. As I noted above, the parties resolved that they would not raise the issue of the quantum of damages in this Court.
[242] As a result, only the basis for liability in tort was formally in issue before us. For the foregoing reasons, the appeal must be allowed in part. Paragraph 2 of the formal order of the Court of Appeal states: “THIS COURT FURTHER ORDERS THAT the new torts of domestic violence or coercive control as defined in this case shall not be recognized.” I would set aside this declaration and replace it by one that states that the new tort of intimate partner violence is recognized.
[243] The quantum of damages set by the Court of Appeal is no longer in dispute. In these circumstances, I would not interfere with para. 1 of the Court of Appeal’s order, which states that the appeal to that court “shall be allowed in part and the damages award shall be reduced by $50,000.00”.
[244] The trial judge’s order at para. 15 cannot, however, be fully restored, except as to the quantum of damages of $100,000, as the amounts set by the trial judge under the tort of family violence for general compensatory and aggravated damages respectively do not reflect compensatory damages associated with repairing the loss arising from coercive control. Paragraph 15 of the order of the Superior Court recorded the following distribution for the damage award:15. [Mr. Ahluwalia] shall pay to [Ms. Ahluwalia] damages for family violence as follows:a. $50,000 in compensatory damages in relation to [Ms. Ahluwalia’s] mental health disabilities and lost income earning potential;
b. $50,000 in aggravated damages due to the overall pattern of coercion and control, breach of trust, and for the post-separation conduct of [Mr. Ahluwalia]; and
c. $50,000 in punitive damages as condemnation for [Mr. Ahluwalia’s] conduct. [245] I would exercise this Court’s power under s. 45 of the Supreme Court Act, R.S.C. 1985, c. S-26, to give the order the trial judge should have given had she properly characterized the tort of intimate partner violence under the principles established in these reasons (see, e.g., Laferrière v. Lawson, 1991 CanLII 87 (SCC), [1991] 1 S.C.R. 541, and G. Ragan et al., Supreme Court of Canada Practice 2025 (2025), at § SCA 46:1).
[246] The Court of Appeal has rejected the award of $50,000 in punitive damages and therefore para. 15(c) of the order of the Superior Court regarding these damages is no longer in effect. However, two modifications to para. 15 of the trial order must be made.
[247] First, the trial judge’s reference to “damages for family violence” should be changed to reflect that damages are awarded, specifically, for the “tort of intimate partner violence”.
[248] Second, the distribution of compensatory and aggravated damages awarded by the trial judge should be modified and the order should state: “$100,000 in compensatory damages in relation to the tort of intimate partner violence”. The conduct the trial judge considered warranting aggravated damages falls within the scope of the tort of intimate partner violence as defined in these reasons. It is subject to compensation based on the principle of restitutio in integrum rather than as aggravated damages to compensate malicious conduct that would not otherwise be covered. I accept that in other circumstances, a dignity interest may merit compensation through aggravated damages (see J. Berryman, “Reconceptualizing Aggravated Damages: Recognizing the Dignitary Interest and Referential Loss” (2004), 41 San Diego L. Rev. 1521). In this case, however, the harm experienced by Ms. Ahluwalia from coercive control, including that associated with her dignity, autonomy, and equality should fall fully under general compensatory damages for the tortious conduct of intimate partner violence. Had the trial judge properly characterized the tort of intimate partner violence, the resulting harm would have been compensable as general compensatory damages, not as aggravated damages. The trial judge’s order should therefore be modified to reflect that the entire award of $100,000 is included under the head of general compensatory damages. Paragraph 15 of the trial order should be replaced with the following: “The Applicant Father shall pay to the Respondent Mother $100,000 in general compensatory damages in relation to the tort of intimate partner violence”.
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