The wake of a watershed moment

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In May, the Supreme Court of Canada made a landmark ruling in Ahluwalia v. Ahluwalia which created a new tort of intimate partner violence. 

“The decision was released on a Friday, and by Monday morning, I had a lineup of emails and phone calls from clients wanting to inquire about the impact of the decision and how it may impact their case as well,” says Tiffany Paulsen, who practices family law at Robertson Stromberg in Saskatoon.

Her clients, many of them women dealing with cases of coercive control in intimate partner relationships, wondered if the tort would broaden the relief that they were seeking through their family law action.

“What was interesting and surprising to me is we often hear lots of armchair critics on laws and decisions, but the people that contacted me really had a very good understanding of the impact of the decision and what it meant,” Paulsen tells Verdicts & Voices host Alison Crawford.

“I don't think it's too dramatic to say that it really was a watershed moment, I found, in Canadian legal history for that decision to come out.”

Since the decision, the tort has been claimed in Mitchell v Mitchell, an Ontario Superior Court of Justice case involving a 54-year marriage marred by severe and persistent abuse, including coercive control. The applicant was awarded significant damages plus financial compensation for harm recognized through the new tort. 

As tort claims are typically handled by civil litigators, not necessarily family law litigators, there have been questions about how the new tort may cause civil litigation and family law to intersect. 

Paulsen says so far in Saskatchewan, the courts have asked that a civil action be initiated first. This is in contrast to some jurisdictions where you may be able to fold the new tort in with the existing family law action.

The same approach has been taken in Nova Scotia, says Shelley Hounsell, senior counsel at Presse Mason in Halifax. 

“We're a fully unified province, and there's been no formal direction, but informally we've been asked not to include a tick box on the already established petition for divorce or notice of application,” she says. 

“Instead, we're to file a statement of claim and proceed in the normal civil route. So as if it's a civil action, which it is, but not a family action.”

Joanna Radbord is disappointed to hear this. A partner at McCarthy Hansen & Company in Toronto, she’s preparing a symposium about reimagining family law in the wake of Ahluwalia. 

“From my reading, the Supreme Court of Canada was clear that this is supposed to be done in family law cases as part of the family law claims,” she says. 

"That's what I've been doing for years.” 

The cost of access

Radbord says there’s currently an access to justice problem, and the creation of the tort of intimate partner violence is not meant to compound that. Rather, it's meant to facilitate survivors’ access to justice. So how can the court facilitate access in a manner consistent with the Supreme Court of Canada's direction?

“The family court judges need to take ownership, family lawyers need to take ownership. We’ve got to learn how to do screening, and we've got to incorporate an understanding of intimate partner violence and coercive control at every stage of a family law case,” she says.

“It makes no sense to be spending more money. Most survivors of intimate partner violence don't have the financial means to afford having civil counsel and family law counsel…You've got to add the tort claim as part of your family law case.”

Radbord says lawyers across different areas of practice have been discussing the Ahluwalia decision, including in human rights, employment, income security, housing, and poverty law. 

“The understanding of coercive control addressed by the Supreme Court of Canada is impacting survivors of all income levels. We've got to have a collective conversation as a bar about how we make rights real, and that means making sure that they're accessible.”

Paulsen says awarding damages, as well as the enforcement and collection of orders, are “real logistical issues.”

“To me, an important part of the discussion that needs to happen right now is how to properly compensate as well as make these remedies available to folks who just simply can't afford litigating in our judicial system.”

Moderating behaviour

For her part, Hounsell is on the fence about pursuing a tort in every case because it must be the victim's choice. She says there are a lot of considerations when representing victims of abuse, including what a resolution means to them. As a family lawyer, it's her responsibility to address a tort claim if her client wishes, but it could be one of the more traditional torts. 

“I don't feel it's appropriate for me to give this case to a [different] civil litigator, because I am a civil litigator as a family law lawyer,” she says. 

“If I have to file a separate statement of claim, that's fine, but I do believe eventually we'll work out the wrinkles of whether or not we have to go to a different building or not to have the case heard.”

Wrinkles aside, Hounsell says the new tort of intimate partner violence is an opportunity to regulate conduct. She points to car accidents, where if a person is found at fault, their insurance compensates the victims for the damages. This reflects societal expectations and serves to moderate behaviour.

“The same can be said for this tort. It can send very strong messages to families and partners that we have a standard of expectation of behaviour between each other, and if you fail to meet that societal standard, then you will have to pay damages and compensate the victim,” she says. “There's a bigger picture here if we put on our litigators' hats instead of our family lawyers' hats.” 

Tune into the full episode to hear more about the new IPV tort and what our guests think we can learn from the case of Mitchell v. Mitchell that will be useful for applying the tort in the future.