What is an adequate legal remedy after 16 years of emotional, physical, and financial abuse?
For years, the common law has struggled to answer this question. Often, survivors are forced to cram their lived experiences into legal boxes which do not exactly fit. However, in Ahluwalia v Ahluwalia, the Supreme Court of Canada (SCC) made a historic decision by recognizing a new tort of intimate partner violence.
The law of torts is premised on the principles of corrective justice, intended to place the victim in the position they would have been in had the wrongful conduct not occurred. In the absence of an adequate remedy, the introduction of a new tort may be the best way to correct the wrong.
Until now, survivors have relied on existing torts of battery, assault, and intentional infliction of emotional distress (IIED). While important, the SCC found that these torts do not fully address the cumulative harm of coercive conduct. Assault and battery are usually contained in discrete moments of imminent threats or physical contact. As such, they fail to capture the fear that characterizes a state of subordination. IIED requires a proof of “visible illness” and conduct which is “outrageous”. This often does not include the recurrent actions, such as financial surveillance and social isolation, that result from coercive control.
Justice Kasirer, writing for the majority, acknowledged that the new tort of intimate partner violence fills in the gaps left by the existing torts by focusing on conduct that impacts the victim’s dignity, autonomy, and equality.
Recognizing the harms caused by coercion onto a victim’s dignity, autonomy, and equality aligns with corrective justice. Justice Kasirer emphasized that while intimate partner violence may overlap with existing torts, the new tort represents a broader spectrum of such conduct.
To establish liability under the new tort, the SCC outlines three essential elements that a plaintiff must prove:
- Context: a plaintiff must show that the wrongful conduct occurred during an intimate relationship or after it ended. This addresses the circumstances in which power dynamics persist after a relationship has ended.
- Intent: a plaintiff must prove that the defendant intentionally engaged in the conduct.
- Standard: it must be proven that a reasonable person, fully aware of the context, would perceive the conduct to be coercive in nature.
The SCC defined coercive control as a range of behaviour, including but not limited to tactics of isolation, surveillance, manipulation, intimidation, physical, psychological, and financial abuse.
This decision significantly enhances access to justice. While existing torts focus on the “bruised spouse”, the new tort, as Justice Kasirer explains, recognizes the “unfree spouse”. By addressing the cumulative effects of abuse, this reflects the lived experience of survivors. They no longer must fit their evidence within the rigid confines of the pre-existing torts.
The recognition of the tort of intimate partner violence represents a monumental shift in Canadian law. By centering on the violation of dignity, autonomy, and equality, the SCC has provided survivors with a foundational legal tool that reflects the full scope of their experiences.
If you are ready to explore your legal options, we invite you to book a confidential consultation with our family law team at Pitblado Law. We will listen, explain your options, and help you understand your rights with dignity and care. If you are in immediate danger, please call 911 or your local emergency services.
Note: This article is of a general nature only and is not presented as a comprehensive review of the law or as being exhaustive of all possible legal rights or remedies. This article is not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice applicable to their own circumstances. We do not undertake any obligation to update this article to reflect changes in law that may occur in the future.