May 2026
The SCC Creates and Defines New Tort of Intimate Partner Violence
Ahluwalia v. Ahluwalia, 2026 SCC 16
By Stephanie Cox
A one-stop shop tort best achieves access to justice for victims of intimate partner violence. The new tort should allow simple recovery for discrete instances of intimate partner violence. Whether an individual is subjected to coercive control, or other forms of violence causing them physical or psychological harm, it is the context of the intimate partnership which justifies distinct judicial recognition and markedly higher damages than those available under the existing torts available between strangers. Including acts of violence that caused physical or psychological harm in the scope of the new tort allows victims of intimate partner violence to plead and argue all instances of that violence under one tort.
Until now, common law partners and married spouses could only pursue monetary damages for claims of assault, battery and the intentional infliction of emotional distress (“IIED”) within their applications to court following separation from their spouses. In the landmark decision, Ahluwalia v Ahluwalia, 2026 SCC 16 the Supreme Court of Canada (“SCC”) has created a new tort of intimate partner violence that will allow people to sue for damages when they have been subject to abuse in relationships. On appeal, the SCC upheld the trial judge’s decision to fill the gap in law that had failed to recognize various forms of intimate partner violence such as harms associated with psychological domination, isolation, and coercive control during intimate partner relationships. Now, the SCC’s creation of the tort of intimate partner violence is designed to recognize the specific nature of coercive control and family violence in intimate partner relationships and covers acts such as physical violence, isolation tactics, manipulation, humiliation, surveillance, economic abuse, sexual coercion and intimidation.
How did we get here?
When former wife, Ms. Ahluwalia, pursued $150,000 in damages on account of a proven pattern of violent abuse that her husband subjected her to during their 16-year marriage, the Ontario Court of Justice was left without the means to provide monetary damages to her on account of emotional, psychological, and financial abuse. The judge found that Ms. Ahluwalia’s fact scenario fell outside of the definition of the existing torts of assault, battery and the intentional infliction of emotional distress defined in the Divorce Act. Rather than simply rendering a finding of fact that she had experienced these harms whilst simultaneously not providing damages in recognition of the harms experienced, the court exercised its authority to create a new tort of family violence, crafting a definition capturing the harms experienced by Ms. Ahluwalia and in turn issuing an Order for monetary compensation for same. The court did so on the conclusion that other torts failed to capture the broader reality of intimate partner violence and left victims without recourse.
In civil law, a tort refers to a wrongful act, other than a breach of contract, that infringes on someone’s rights and causes harm or injury, creating legal liability for the person who commits it (the defendant) while allowing the injured party (the plaintiff) to seek redress in civil court. Put simply, a person can now sue over the “pattern of behaviour,” rather than a specific act in time, as is the case in an analysis of damages related to battery and assault. As well, in the civil context, one does not need to have a guilty criminal verdict of the offence to bring a claim in the civil context, although it certainly would strengthen and likely be determinative of the claim. In the criminal context, the crime is against the state and attracts a verdict but does not provide monetary compensation the way a successful tort claim can.
In the trial decision, Ahluwalia v Ahluwalia, 2022 ONSC 1303, Justice Renu Mandhane held that the Divorce Act isn’t a complete statutory scheme for addressing all the legal issues that can arise in a marriage marred by violence. In her decision, Justice Mandhane concluded that existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness. Justice Mandhane ruled that it was necessary for the common law to recognize a new tort of family violence to enable redress for the cumulative pattern of harm that can arise from domestic physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or the killing or harming of an animal or property.[1] Within her decision, Justice Renu Mandhane created the tort of family violence and the test to establish liability. For a successful family violence claim, the plaintiff must establish in evidence that the conduct by a family member towards the plaintiff, within the context of a family relationship, is violent or threatening, or constitutes a pattern of coercive and controlling behaviour, or causes the plaintiff to fear for their own safety or that of another person.[2] This test has now been replaced by the test set out by the SCC.
The trial decision was appealed to the Ontario Court of Appeal. In Ahluwalia v Ahluwalia, 2023 ONCA 476, the Ontario Court of Appeal rejected the trial decision that created the new tort of family violence finding that its creation was unnecessary because the existing torts already recognized and addressed the different types of behaviors constituting intimate partner violence. Justice Benotto of the Ontario Court of Appeal, stated, the “years of physical, psychological, emotional and financial abuse” inflicted on the wife falls “squarely within the existing jurisprudence on battery, assault and intentional infliction of emotional distress.”[3] Justice Benotto continued by noting that “existing torts are flexible enough to address the fact that abuse has many forms” including those in which there is “recurring and ongoing abuse, intimidation, domination and financial abuse.”[4]
The decisions left the legal community and claimants uncertain about how their claims would be considered and assessed while the SCC grappled over whether the existing torts were sufficient. Caselaw following the Court of Appeal’s decision was mixed with some judges relying on the judiciary’s recognition of the perils of intimate partner violence, its scope and harms, finding that the pre-existing torts were sufficient.
Ms. Ahluwalia appealed the Court of Appeal decision to the SCC who was left to grappled with the question, “should the judiciary create a new tort in common law of ‘family violence?’”
The appeal to the SCC attracted 17 interveners, including women’s shelters and survivors’ groups which support the tort’s creation. In her appeal to the SCC, the appellant ex-wife challenged the Ontario Court of Appeal’s elimination of a $50,000 punitive damages award from the total $150,000 in damages she won under the rubric of the tort of family violence. She argued that the court was within their authority to establish a new tort because the pre-existing torts were insufficient to remedy her claims. The test for the creation of a new tort requires that, at minimum, the tort must reflect a wrong; it must be necessary to address that wrong; and it must be an appropriate subject of judicial consideration.
In its decision, the SCC found that the test to create a new tort was met and it recognized a new tort referring to it as the tort of “intimate partner violence,” replacing the trial judges tort of “family violence,” on the basis that the existing torts of battery and intentional infliction of emotional distress did not adequately address the distinct harm to dignity, autonomy, and equality within and intimate partner relationship.[5] The SCC held that the Court of Appeal erred by not recognizing a new tort because the core of Ms. Ahluwalia’s argument was about loss of dignity, equality and autonomy and existing torts could not be stretched to accommodate those claims.[6] Justice Kasirer said that the Ontario Court of Appeal failed to recognize the specific nature of coercive control and family violence in intimate partner relationships and that was an error in law.
The SCC declined to recognize a broader tort of family violence because they held that an “overinclusive” tort could allow the abusers to turn the tort back on survivors who attempted to defend themselves, creating unintended barriers to justice.[7] Accordingly, the SCC did not adopt the test created by trial judge, Justice Renu Mandhane.
The SCC instead created a new test to establish the tort of intimate partner violence as the following:
The plaintiff must establish:
- The defendant’s wrongful conduct must have occurred during an intimate partnership or in its aftermath;
- The defendant must have intentionally engaged in the abusive conduct; and
- The defendant’s conduct constituted coercive control, measured objectively.[8]
The SCC stated that the onus is on the plaintiff to prove all three parts of the test on the balance of probabilities.[9]
At the SCC, Ms. Ahluwalia was successful. The SCC allowed the appeal in part, upheld the $100,000 damages award from the Court of Appeal for Ontario, and recognized those damages under the new tort of intimate partner violence rather than including torts of assault, battery, and IIED.[10]
The SCC’s ruling fundamentally reshapes how courts may interpret abusive relationships moving forward. The SCC now recognizes that violence inside a relationship can include manipulation, intimidation, isolation, financial control, sexual coercion, surveillance and conduct aimed at eroding someone of their autonomy. Historically courts often viewed violence through a lens of bruises and assaults, or singular moments in time, rather than acknowledging the harms associated with constantly living in a state of fear or an environment where someone no longer feels free to think, speak, work, parent, have social relationships, because of an environment of coercive control. Justice Kasirer wrote, “while some of the conduct captured by the new tort may overlap with existing torts, coercive intimate partner violence generally includes and extends beyond discrete acts of physical and psychological abuse. None of the existing torts consider whether the alleged wrongful conduct coerces or controls the victim, nor are they designed to compensate the victim for the distinct injury to their intangible interests in dignity, autonomy, and equality within an intimate relationship.”[11]
Unique to the SCC’s analysis was how the court discussed how the Charter values informed the creation of the new tort. The court considered the fact that intimate partner violence violates survivors’ rights to liberty, psychological and physical security, and equality. The SCC held that the Court of Appeal erred by not recognizing a new tort because the core of Ms. Ahluwalia’s argument was about lost of dignity, equality and autonomy and existing torts could not be stretched to accommodate those claims.[12] In effect, the court used the Charter as an analogy for how we should have personal relationships, particularly with respect to dignity and autonomy.
The SCC also recognized intersectional landscapes and the role social positioning impacts power dynamics. The SCC stated, that “Intimate partner violence can only be understood with due regard to the economic and emotional interdependence, and the attending vulnerabilities, that characterize intimate partnerships and set them apart from arm’s-length relationships.”[13] There is emerging legal acceptance of the gendered character of intimate partner violence in that legal authorities are recognizing that women are more likely to suffer intimate partner violence than men.[14] The SCC’s position highlights the important role the court plays to create common law principles to reflect need and to align with social realities.
In recent years, jurisprudence has generally further recognized that intimate partner violence may involve patterns of conduct and may have consequences beyond individual incidents, including psychological and economic effects and that these considerations may form part of the broader factual matrix relevant to the issues in dispute. Jurisprudence has reconfirmed settled legal principles espoused in the trial and appeal decisions. For example, in Malamas v Wey, 2026 ONCA 133 (“Malamas”), the court dismissed an interim motion to dismiss an assault claim on account of the expiry of the limitation period. The Court held that that allegations and evidence of intimate partner violence may be relevant to the adjudication of civil claims and to the application of procedural doctrines, and that this includes assessing whether they bear on the factual context in which claims arose or on the application of doctrines such as limitations, res judicata, or abuse of process.[15] In Malamas, the court was concerned that dismissing the claim summarily without engagement with relevant evidence may constitute an error warranting appellate intervention.[16] In doing so the court recognized their judicial obligation to be “particularly attentive” to the ramifications of intimate partner violence on the issues before them and recognized that intimate partner violence may involve patterns of conduct and may have consequences beyond individual incidents, including psychological and economic effects.[17] The court held that these considerations may form part of the broader factual matrix relevant to the issues in dispute and thus, denied the request to simply dismiss the claim because of a limitation period.[18] This is an example of courts moving away from an assessment that is single incident based, recognizing that there may be a domino effect of harms that follow a single incident which ought to be analysed. The SCC’s decision now cements these principles and requires courts to apply them to claims involving intimate partner abuse.
With its newness, the scope of this new tort, how it will be applied and the evidentiary challenges remain to be seen. For example, the tort of intimate partner violence requires that the plaintiff/applicant establish that the defendant/respondent, intentionally engaged in the conduct. This is a contrast to other existing intentional tort law where the plaintiff does not have to prove intention because the actions assume it. The implications and practical realities of the test, and what courts will consider as evidence that would establish intent, will evolve with application.
Authored by Stephanie Cox a Family Associate and Phillip Psutka