Last week, the Supreme Court of Canada ruled that survivors of intimate partner violence (IPV) need a novel tort law that addresses the broader injurious effects of their experience. In doing so, the court has created a pathway for survivors to seek compensation through the civil legal system and expanded legal understanding of IPV's harms beyond just the physical.

For experts and advocates, the ruling is a landmark decision.

"We know that many survivors' experiences of the legal system leave them feeling unseen and often unsafe,” says Kirsten Mercer, a feminist lawyer and anti-violence advocate with Mercer Advocates Law. Mercer represented Luke's Place, a family law support centre in Ontario that serves abused women, as an intervenor in the Supreme Court Case.

“In every decision the system has sent an unequivocal message that IPV is a scourge within this country... that what survivors have experienced is wrong and should be condemned, and that making things right for survivors must be a concern for the Canadian legal system," she says.

What is tort law?

Tort law allows people who have been harmed or experienced a wrongful act to file a claim for damages within the civil legal system. Before last week, tort law related to IPV had a narrow framework that only allowed for claims related to assault and battery, and the intentional infliction of emotional distress.

Those existing torts, which the Supreme Court referred to as “patchwork,” were deemed insufficient as they “fail to remedy the specific wrong to dignity, autonomy and equality that intimate partner violence creates.”

With this new ruling, survivors of IPV will now be able to file claims that cover a spectrum of abuse that characterizes IPV, including coercive tactics such as financial control, isolation and sexual coercion.

“The court recognized that the preexisting torts were not built for survivors,” says Vicky Law, legal director for Rise Women’s Legal Centre in B.C., which offers services to women and gender diverse people who are navigating the family court system, and another intervenor in the case. The decision emphasized that harm and violence between intimate partners is qualitatively different than violence between strangers, she explains.

The backstory on the ruling

The ruling marks the final chapter in the divorce case Ahluwalia v. Ahluwalia, where the question of a novel tort first emerged. As part of divorce proceeding in 2022, Kuldeep Ahluwalia asked a family court to consider the abuse she endured over the course of her 16-year marriage to her husband, Amrit.

That harm included financial abuse, intimidation and sexual coercion in addition to physical violence. Her only legal recourse to do this, however, involved citing existing tort laws that only addressed physical violence or battery and the intentional infliction of emotional distress.

The Ontario judge in that case found her claim to be valid and awarded her $150,000 in damages. In the ruling, the judge said that existing tort law wasn’t sufficient to cover her claim and effectively created a new one—a tort of IPV.

That 2022 ruling was challenged on appeal by her former husband, however. The judge in that trial did not find that a new tort was needed and reduced Ms. Ahluwalia’s compensation from $150,000 to $100,000.

Last week's Supreme Court ruling has finally settled the question of whether a new tort is needed. It endorsed the novel tort as means of capturing what the court called the “grinding” harms of IPV, which consisted of an “array of abusive coercive tactics” that interfered with Ms. Ahluwalia’s “autonomy, rendered her an unequal partner and undermined her dignity.”

“The court is recognizing the pattern and the different ways that a perpetrator can use to subject the survivor to harm,” says Law.

What does it mean going forward?

The ruling is a big win for survivors, says Law. “It’s a victory for the highest court in Canada to recognize the harms of intimate partner violence; to recognize that it is a pattern and for the court to make clear that there are less visible and more subtle forms of abuse that are just as harmful as physical abuse.”

Mercer agrees, but like many advocates she's paying close attention to how it may be practically applied in the lower courts.

"We know that the true impact of the decision will play out on the ground, in family and civil trials where we still have some work to do to ensure that decision-makers are trained and able to effectively identify the coervice and controlling behaviours that Justice Kasirer has so carefully described," she says.

Mercer is impressed by the way the Supreme Court seems to have anticipated these challenges and made attempts to ensure it's not misapplied. She points out that the ruling excludes "acts of resistance" (i.e. when victims fight back as a result of ongoing abuse) to ward off the potential for perpetrators of abuse to use the tort themselves.

"The majority decision is clearly trying to prevent this tool from being abused by abusers' seeking to make retaliatory claims or engage in litigation abuse," she says.

Law doesn’t foresee the courts immediately filling up with civil suits related to IPV. For one, it’s a costly process that also demands the accused have the money to pay the judgment should they be found accountable. But Law still sees the ruling as a win. “It's a great tool of education and awareness that I think all actors and the legal system need to review and understand it,” Law says.

“The legal system needs to change its way of looking at the dynamics of coercive control between partners,” Law says. “We need to look at it holistically,” she explains, as a pattern. “Because that's how the survivor is experiencing it.”