A turning point for a tort of family violence

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The Supreme Court of Canada issued a landmark decision earlier this month that created a new tort of family violence. This means people who have suffered harm due to intimate partner violence will be able to seek damages. The 6-3 decision in Ahluwalia v. Ahluwalia was more than a year in the making. What will it mean for victims and legal professionals?    

Shelley Hounsell is a family law lawyer and senior counsel at Presse Mason in Halifax. Vanessa Lam provides specialized legal advice and research to other family law practitioners through her firm, Lam Family Law, in Markham, Ontario. Both previously appeared on the podcast in February 2025 to talk about this issue.

Notes:

2026 SCC 16 (CanLII) | Ahluwalia v. Ahluwalia | CanLII

Verdicts and Voices: The use of AI at the Federal Court, the tort of family violence, and R v. Drybones | Verdicts & Voices

Verdicts & Voices is a legal current affairs podcast presented by the Canadian Bar Association. With her retinue of expert guests, host Alison Crawford keeps listeners up to date on news, views, and stories about the law and the justice system in Canada.

Views expressed are not necessarily those of the CBA.

Transcript

Welcome back to Verdicts and Voices, a regular podcast from the Canadian Bar Association. I'm your host, Alison Crawford. This episode focuses on the Supreme Court of Canada's landmark decision to create a new tort of intimate partner violence. The split decision was more than a year in the making.

Right after the hearing last year, I spoke to two family law experts who shared their thoughts about the arguments and questions from the bench.

Shelly Hounsell: I found it very exciting to see, first of all, a family law case at the Supreme Court of Canada. And second, we had 17 interveners. So we had 17 different groups represented. And they had an opportunity to share their perspective or points that they would ask the Court to consider when making its decision.

Vanessa Lam: So I think the collision, in this case, of family law with tort law was very fascinating. The different interveners spoke of different aspects of either family law perspective or tort law perspective. And the attitude towards permitting tort claims in family law has expanded dramatically over, I’d say, the last 20, 30 years.

And I'm delighted that they're back with us today to break down the decision and the dissent. Shelley Hounsell is a family law lawyer and senior counsel at Pressé Mason in Halifax, Nova Scotia. And Vanessa Lam provides specialized legal advice and research to other family law practitioners through her firm, Lam Family Law in Markham, Ontario. Hey, welcome back to Verdicts and Voices.

Vanessa Lam

Thanks, Allison.

Shelley Hounsell

Thank you.

Alison

It's great to have you back. I guess right off the top, maybe Shelley, I'll ask you first. How do you explain for our audience how significant this is that the Supreme Court of Canada has recognized a new tort?

Shelley Hounsell

It's very rare for the Supreme Court of Canada to create a new tort. As discussed in the case, torts are created by evolution and filling the gap where other current torts, and many of them have been around for hundreds of years, are not able to remedy a wrong committed by one person against another.

And so the significance here is one, we have a new tort of intimate partner violence, but two is that it recognizes the kind of behaviours we've only recently classified in the last 20 years. And coercive and controlling behaviour is the reason. First of all, what it is and how it harms, how there's harm from one partner to the other. And second of all, it was revolutionary when the Divorce Act included it in its amendments in 2020 and came in force in 2021. But now to have a tort that also acknowledges that form of behaviour as interfering with the spouse's autonomy is very significant.

Alison

So what would be an example of coercive control, Shelley?

Shelley Hounsell

I always say to clients, coercive and controlling violence is the type of behaviour I saw for the past 26 years, but until six years ago, I didn't have a name to call it. And it's not, as is emphasized in the decision, it's not a high-conflict case where people are not getting along. It's the kind of behaviours where one person loses their voice. They lose their ability to say no, they lose their ability to make decisions for themselves and to promote how they feel they would like to live in a relationship. And so for example, I see a fair amount of coercive and control financially where a person's not able to make any decisions and none of the assets are held in their name. But I also see it around social media, emails and text messages, interfering in one's life. And this is post-separation. During relationships, I see it in the ability of a person to make choices around their children and how to raise their children, how they will socialize with other people in their cultural community. Just an abject failure to, or a feeling that they just don't have a voice anymore in their relationship. It's, I would say, very controlling as opposed to just a dynamic that exists between a couple.

Alison

Okay, thank you for that. Vanessa, the original trial judge proposed a new tort of family violence, and the Supreme Court created a narrower tort of intimate partner violence. Can you explain what that difference is?

Vanessa Lam

Yeah, so the tort of family violence was broad enough that it could deal with violence between other family members, for example, a parent and a child. And the court here said one of the main elements of this tort of intimate partner violence is that there's an intimate relationship. It doesn't have to be married or cohabiting partners, but there's some sort of interdependence and interrelatedness between the partners. And it's supposed to be a partnership of equal partners.

And that's what makes this a unique tort, but it's also limiting. So for example, one of the interveners, Justice for Children and Youth, said, obviously, abuse against children is terrible, also something that might be a tort in itself or might need some sort of wrong to be redressed, but not in this context and not in this case.

Alison

And what are the elements that were set out in this decision that establish what needs to be proved in a tort of intimate partner violence?

Shelley Hounsell

It's a three-pronged test. And I found that if you read the decision, at first glance it seems rather light on the three prongs. But when you look at the decision carefully, you will see that the majority of the Supreme Court of Canada wanted to create this tort, but also wanted to create the uniqueness of the experience so that the tort may be found under special circumstances. For example, the first prong of the test is that it arose in an intimate partnership or its aftermath. And from my perspective, I see much more egregious behaviour. I shouldn't say much more. Often, I see more egregious behaviour happening post-separation, which highlights for me the seriousness of the violence that was experienced during the relationship.

Vanessa Lam

I want to add that the court did talk about litigation abuse, which is when one partner uses the litigation system itself to control the other partner in an abusive fashion. And that's something that we see as family lawyers all the time.

Alison

Yeah, those high-conflict relationships when they deteriorate.

Shelley Hounsell

And second, the perpetrator is intentionally engaging in the conduct, and the plaintiff only needs to show that the defendant intended to engage, not that they subjectively intended to control their partner. And so some kind of conduct that the Supreme Court of Canada indicated was physical and sexual violence, emotional and physical abuse, verbal abuse, harassment, humiliation, and financial control, stalking and surveillance.

And so those are the serious types of behaviours we see in our coercive and controlling cases. And I'm thankful that they identified those behaviours because sometimes I even struggle with a way to define what I see. I know it based on conversations with clients, but it's difficult to articulate at times because it's different. It's a cluster of behaviours rather than an individual act.

Alison

And I've got to ask you both, like, what were your reactions when you first heard word of what the decision was? Vanessa?

Vanessa Lam

I was quite pleased. Because of the delay in the decision, I was expecting a split decision. So, you know, this could be really a close call, which way it's coming down. So whether or not they recognize a tort of family violence or a tort of intimate partner violence, I think it's really important that there is the name for something for an intimate partner who's gone through an abusive relationship and that they don't have to rely on what

has been referred to before as like a patchwork quilt of different torts that were really developed in a very different context between strangers, right?

Alison

Yeah, exactly. And what about you, Shelley?

Shelley Hounsell

I was pleased. Because again it gives us another avenue to address behaviours. And traditional family law and our legislation for family law cases does not punish in any way. That's not our intent. Our intent is to separate families, look after children, and move forward.

And so the ability to have a civil remedy to address wrong and to punish a perpetrator is important in the options that a victim has available to them.

Alison

Yeah, and so getting to the, you know, it is a split decision. Justice Karakatsanis mostly agreed with the majority. And what was the sort of one difference there between the four – it was written by Justice Kasirer – but where was Justice Karakatsanis on this? Where did she differ from the rest of the majority?

Vanessa Lam

So the third element of this tort that the majority recognized was behaviour that was coercive control. But Justice Karakatsanis said that that was too narrow. And she wanted to add that it could also be violence that caused the intimate partner physical or psychological harm.

Alison

Okay, all right. And Shelley, what about the dissent? What do the three dissenters, Justices Jamal, Côté, and Rowe, where do they differ from the majority?

Shelley Hounsell

Primarily they felt that, one, Ms. Ahluwalia certainly experienced abuse, and quite serious and long-standing abuse, and that she was right to bring forward a claim under tort law to be put into place for the harm she experienced, and to be able to move on with her life. And so they acknowledged, one, the abuse. They acknowledged the extent of family violence in Canada. But from their perspective, a new tort should have evolved over time through case law and judges finding where current torts might need to be nuanced. And so it would be a much slower process instead of creating a new tort.

And so I think from their perspective, the current status of tort law met the need of people who experience intimate partner violence because there are options available under tort law, existing tort law, to seek a remedy.

Alison

Right. Vanessa, what did you think of that approach?

Vanessa Lam

So I think the element that the majority identified I agreed with, that it was the element of coercive control that's not covered. Like battery, it requires a physical unwanted touch, right? The intentional infliction of mental distress requires a psychological impact and a proof of damages, right? Whereas the more subtle form of coercive control, which could be isolation, humiliation, surveillance, right? It wouldn't be captured under any of these other existing torts.

Alison

So, Shelley, in your practice, how do you anticipate availing your client of this new tort? Like, do you see yourself using this?

 

Shelley Hounsell

I’m a little worried. I will have cases where I will… So I guess ethically I have to advise my clients when they identify family violence, which is something I'm obligated to make inquiries about. Ethically I have to tell them about the tort of intimate partner violence. I'm a little concerned about money. Because in civil law, we often have an insurance company who's representing or defending a wrongdoer. And so the insurance policy is able to pay out the damage award. In family law cases, we don't have an insurance policy to look to for compensation when a damage award is made.

And so we're looking at fairly small pots of family assets that are available to divide again. And I'm really concerned about, one, if a person makes a claim and the tort of intimate partner violence has been found, then that person should be compensated in damages. But two is where is that award… where will it be paid? And I'm concerned about once we… So the direction, as I understand it, is that we look to family law principles first and we deal with those cases or those issues first. But then if there's a finding of a tort of intimate partner violence and there's aaward of damages, how will it be paid. And if it's not paid through family division of family assets and it's paid over time, how will that interfere with the payment of child and spousal support and the maintenance of housing? Because, as you know, there's a housing crisis across Canada, and the cost of living. On the CBC this morning when I was driving to court, there was a speaker talking about, you know, our economy and the global crises with oil. And so when we look at how much money is available to pay out these claims, I'm concerned about the benchmark for, one, about damages, and two is where the money will be paid from. And I wouldn't want to see the damages so low that it undervalues the experience of the person. The damages need to be appropriate to the suffering and the ability to move forward. But it's going to be a challenge for judges to discern which is appropriate in terms of damages and the impact. And I want to say I appreciate that this is not a wholesome perspective analysis. We don't look at the impact on children. We don't look at family assets. But ultimately, as family law lawyers, know that and judges will know that too.

Alison

Vanessa, do you kind of share this concern? And I don't want to put words in your mouth, Shelley, but to vulgarize it, as they say in French, to use plain language, is this a tort that's only good for rich couples or rich intimate partners?

Vanessa Lam

I think that is a concern about who's actually going to, in practice, be able to prove this at a trial and then who's going to be able to collect on it. And unfortunately in family law, we have a lot of problems with collections. Each province or territory has some sort of government agency that's in charge of collecting support, some sort of support and maintenance. In Ontario, it's the Family Responsibility Office. And I think there was an auditor's report recently that said they're like eight to nine months behind in collecting. It takes that long for them to get a decision and then start collections, right? So if there's not enough money to collect on child support, there's not gonna be enough money to collect on a tort claim.

Alison

Yeah. And what about you, Vanessa? Do you share Shelley's concerns and do you have any additional ones about how this might work in practice?

Vanessa Lam

So I do share some of those concerns. I also think that this is not the role of the Supreme Court to weigh in on how much these damages should be. The minority also took a bit of an issue with it because the parties here had agreed that they were not disturbing the $100,000 of damages that Ms. Ahluwalia got. But the majority did weigh in a little bit on it. I think it is important for them to say there should not be any sort of family discount.

In the past, it seemed like the awards for spouses were lower than for strangers, which is a real concern, and that shouldn't be the case. But it's going to take some time. I don't think it was for the Supreme Court to give that guidance. I think that's where lower courts applying the law will eventually kind of flesh out what kind of range of damages are appropriate.

Alison

That's a really good point. Now, of course, nothing happens in a vacuum. On Parliament Hill, I'm not sure if you've been following, but certainly listeners of this podcast have heard about Bill C-16, and it's a bill that's at the Justice Committee right now in the House of Commons, and it would make many changes to the Criminal Code, including a new offence prohibiting coercive and controlling conduct. So, I'd like to know how both of you feel about this new tort and also this new offense on the criminal side and how you think they might interact or not. Vanessa?

Vanessa Lam

So I understand that the CBA has made a submission on Bill C-16 and that they've recommended some refinement, I guess, of the new offence of coercive control. This is also, I think, a concern that is discussed in the Ahluwalia decision in the sense of, you know, if we just limit it to coercive control, in that sense, you don't capture potentially the victim trying to fight back to abusive behaviour because that wouldn’t be in a coercive controlling environment, right? And how does that fit in if there's a self-defence… There's always been the defence of self-defence to other torts, but you know, how does that fit in? And there's a difference, I guess, in how the split decision kind of dealt with that. And I think that's a problem with criminalizing as well, is this going to be used by the wrong party to victimize the victim?

Alison

That's certainly what many of the witnesses had testified to. What about you, Shelley?

Shelley Hounsell

I think it's important to include coercive control in our Criminal Code. It completes the story about our governments recognizing coercive control as behaviour that's not acceptable in Canadian families. How it plays out in terms of prosecutions, it's not had great success in the UK and Ireland, Scotland, of course. In Australia last summer, they amended their criminal code, and they actually put definitions and examples in the text of the legislation, which I found helpful, to try and direct, lawmakers, when laying charges, what it actually is intending to capture. I think if we excluded it from our Criminal Code, we're diminishing the recognition of coercive and controlling violence, so it has to be there.

I know many people are concerned about the cross-charges, essentially, or using it as a sword against a victim. But I wonder about improving the way the criminal justice system supports and responds to victims. I do find criminal law very helpful to put in undertakings. And then, like, probation orders, at the end of the da,y as part of the sentencing if there's a guilty finding, because it gives peace to the family for a long period of time. And that peace and controlling of behaviour is very important to help teach people that they have to do better or there are serious consequences. So I still find criminal law a very important component to addressing intimate partner violence and coercive and controlling violence in this case.

Alison

Great. Is there anything else I haven't asked you that you'd like to add?

Vanessa Lam

I do want to add something if it's possible. A lot of times, family law draws on other, law from other cases, right? A civil case or criminal case. This one is interesting because the Supreme Court sets out a framework of how to recognize new torts. So I think it would be nice for family law lawyers to say, well now other, areas are going to draw from this important family law case.

Alison

That's an excellent point. All right. Well, look, thank you again for sharing your expertise with us on Verdicts and Voices.

Vanessa Lam

Thanks for having us.

Shelley Hounsell

Thank you for having me here today. I appreciate the interest in family law and our new tort of intimate partner violence, and participating in this podcast with yourself and Vanessa is a privilege.

Alison

I've been speaking to Vanessa Lam of Lam Family Law in Markham, Ontario, and to Shelley Hounsell, K.C., of Pressé Mason in Halifax. Verdicts and Voices is brought to you by the Canadian Bar Association, and I really hope you've enjoyed today's edition. I think it's always fun to talk about a big decision from the Supreme Court of Canada. And I'm your host, Alison Crawford. Have a great rest of your week.