The Supreme Court of Canada recently heard arguments on February 10th and 11th, 2025 for Ahluwalia v Ahluwalia, a case that may determine whether Canadian tort law should recognize a distinct cause of action for family violence or whether existing legal remedies remain sufficient. The case originated in the Ontario Superior Court of Justice, where Justice Renu Mandhane recognized a new tort of family violence, awarding $150,000 in damages. However, this decision was overturned by the Ontario Court of Appeal, with Justice Mary Lou Benotto ruling that existing tort law provided sufficient recourse for victims of family violence.

The Supreme Court’s ruling will decide whether Canadian law requires a distinct tort to address coercive control and prolonged patterns of abuse within intimate relationships or if the established torts of assault, battery, and intentional infliction of emotional distress remain adequate. This article briefly examines the relationship between family and tort law, the competing arguments presented in both the trial and appellate courts, their alignment with past legal precedents, and the potential implications of the Supreme Court’s pending decision on family and tort law in Canada.

Torts in Family Law

Family law in Canada has functioned within a no-fault structure, particularly regarding issues of divorce, spousal support, and child custody. However, tort law has overlapped with family law in cases involving domestic violence, fraud, and financial disputes. While tort law typically governs personal injury and financial harm, courts have been reluctant to expand its application to family law matters due to concerns about escalating conflict and complicating proceedings. The Supreme Court of Canada in Frame v Smith [1987], warned against allowing tort law to be used as a complementary mechanism to resolve family disputes, emphasizing that family law remedies should be sufficient to address interpersonal conflicts.

The use of torts in family law proceedings has generally been limited to claims such as assault and battery in cases of physical abuse, intentional infliction of emotional distress in cases of severe psychological harm, and financial torts such as fraudulent misrepresentation or conspiracy to hide assets. For instance, in Leitch v Novac [2020], the Ontario Court of Appeal allowed a tort of conspiracy in a family law dispute where financial deception was used to conceal marital assets. Furthermore, the Limitations Act exempts sexual assault claims from any limitation period and removes limitation periods for physical assault if the victim was a minor under the perpetrator’s authority or in an intimate or dependent relationship.This allows victims to seek damages for past physical abuse within the context of the family and integrate these claims into ongoing family law disputes.

Despite the courts’ reluctance to expand tort law within family proceedings, shifting legal perspectives on coercive control and domestic abuse have brought new discussions on whether the current legal framework provides sufficient remedies for survivors. While existing torts such as assault, battery, and intentional infliction of emotional distress address specific incidents of harm, they may fall short in capturing the continuous and cumulative nature of coercive control.

Ontario Superior Court: Tort of Family Violence Recognized

In Ahluwalia, the Ontario Superior Court of Justice recognized a new tort of family violence due to the husband’s 16-year pattern of coercive and controlling behaviour. This included physical, emotional, psychological, and financial abuse. The wife testified to three specific incidents of physical violence (2000, 2008, 2013) and ongoing emotional abuse, including threats, belittling, enforced silent treatment, and financial control. The husband withheld financial resources post-separation, leaving the wife financially dependent. The abuse resulted in significant mental health impacts, including major depressive disorder and anxiety.

The court found that existing torts (assault, battery, and intentional infliction of emotional distress) failed to capture the cumulative harm of intimate partner violence, necessitating the creation of a distinct tort of family violence.

Justice Mandhane ruled that liability under the tort of family violence would be established where:

(1) conduct by a family member towards the plaintiff, within the context of a family relationship, that (2) is violent or threatening, or (3) constitutes a pattern of coercive and controlling behaviour, or (4) causes the plaintiff to fear for their own safety or that of another person.

Justice Mandhane emphasized that the no-fault nature of family law must give way where serious allegations of family violence create independent, actionable harms beyond what spousal support can compensate. This judgement reflects the decision in G (MH) v B (RJ) [2021], where the court affirmed that intimate relationships do not protect individuals from tort liability, supporting the need for a distinct legal remedy for family violence.

The court also expanded the Divorce Act’s definition of family violence beyond parenting matters, applying it as the foundation for a new tort. Justice Mandhane found that existing torts failed to address cumulative harm, necessitating a broader remedy.

Moreover, the decision referenced international legal developments, including the UK’s Serious Crime Act 2015, which recognizes coercive control, and Australia’s Family Law Act 1975, which includes family violence in custody and financial matters. The court also cited Canada’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to support legal remedies for victims of family violence.

Ultimately, Justice Mandhane ruled that recognizing the tort of family violence is necessary to properly compensate survivors and provide a legal framework for addressing coercive and controlling behavior in family law disputes.

Ontario Court of Appeal: Tort of Family Violence is Redundant

The Appellate Court in Ahluwalia allowed the husband’s appeal in part, ruling that the trial judge erred in recognizing a new tort of family violence.

Justice Benotto held that existing torts, when properly applied, sufficiently tackle domestic violence, making the creation of a new tort unnecessary:

The trial judge’s concern that long-term, harmful patterns of conduct designed to control or terrorize were not captured by existing torts was misplaced. She therefore erred by creating a new tort which was not required.

The Court rejected the claim that existing torts fail to capture ongoing patterns of coercion and control, citing Barker v Barker [2022], where the Court recognized that assault includes a pattern of conduct that instills a constant fear of imminent harm, rather than requiring isolated incidents.

The decision aligned with Non-Marine Underwriters, Lloyd’s of London v Scalera [2000], and Merrifield v Canada (Attorney General) [2019], both of which cautioned against judicial overreach in expanding tort law where legislative remedies exist. The Court of Appeal in Ahluwalia also raised concerns about complicating family law proceedings with overlapping claims, particularly where civil damages are pursued alongside existing family law remedies. Citing Frame, the Court warned that introducing tort-based claims in family law disputes risks escalating conflict and undermining established statutory frameworks.

Finally, the Court of Appeal found that the trial judge erred by applying the Divorce Act’s definition of family violence beyond its intended scope for parenting matters, rather than tort liability.

Although the husband remained liable under battery, assault, and intentional infliction of emotional distress, the Court ultimately rejected the recognition of a new tort of family violence as unnecessary and beyond judicial scope. Consequently, the damages award was found excessive and reduced by $50,000 to align with existing jurisprudence.

Implications for Family Law and Civil Liability

The Supreme Court’s review of Ahluwalia could have significant implications for both family law and tort law. A decision to uphold the Court of Appeal’s ruling would affirm that existing torts are sufficient, preserving the divide between family law and civil liability. However, this approach arguably ignores the ways in which family violence operates as a continuous pattern rather than a series of isolated incidents.

Conversely, if the Supreme Court were to recognize a new tort of family violence, it could create a legal framework explicitly acknowledging the cumulative nature of coercive control and abuse in family settings. This would align Canadian law with the understandings of domestic violence seen in other jurisdictions, such as the UK’s recognition of coercive control as a criminal offense. The outcome may shape how victims of domestic violence seek justice and may change the scope of family and civil litigation.

_{This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice. Christopher Cox is a Student at Law with John G. Cox Family Law. With an International Financial Law LLM from University of Sussex, his academic background in international financial regulation and comparative law offers insight into the financial complexities of family law.}

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