The Supreme Court of Canada Considers a Novel Tort in Ahluwalia v. Ahluwalia

Family lawyers across Canada are eagerly awaiting the Supreme Court of Canada’s (“SCC”) reasons for judgment in Kuldeep Kaur Ahluwalia v. Amrit Pal Singh Ahluwalia [Ahluwalia]. For those who missed the hearing, here is what you need to know.

On February 11, 2025, the SCC heard submissions from counsel for the parties. The following day, the court heard from 17 interveners, including the Attorney General of Canada, the Attorney General of British Columbia, and various legal aid clinics and community interest groups.

The SCC’s Justice Rowe noted at the outset that Ms. Ahluwalia brought the appeal not to challenge the damage award, but the appeal had become a matter of principle for the legal community. The two-day hearing highlighted the complexity of the issues, and the questions the bench would be grappling with. Would the creation of the Tort of Family Violence (“TFV”) create better access to justice for victims, and even so, was it the role of the courts to fashion this avenue or was this something better left to the legislature?

Do existing torts adequately address family violence?

Before the SCC, the appellant’s principal argument for the creation of the TFV reflected Justice Mandhane’s reasons respecting the limitation of the existing tort framework.

Vandana Sood is a Supervising Lawyer at the Community Legal Clinic for Rise Women’s Legal Centre, one of the interveners in Ahluwalia. Ms. Sood explained that “[t]he existing patchwork of the torts of battery, assault and intentional infliction of emotional distress (IIED) invites courts to approach tort claims from an incident-based approach; rather than assessing the pattern of violent and coercive and controlling behaviour over the course of the spousal relationship, and the resulting harm suffered by the survivor of the relationship. This approach both minimizes the seriousness of the many forms of family violence beyond discrete physical incidents, and does not address the cumulative harm of family violence in intimate partner relationship.”

“More than one quarter of reported crimes in Canada result from family violence, and two-thirds of the victims are women and girls. This patchwork approach does not address the gendered nature of intimate partner violence (IPV), not does it grapple with the prevalence of IPV in Canadian society as a social harm,” she said.

The parties in Ahluwalia are of South Asian heritage. A coalition representing the South Asian community intervened in the case. They cited several recent decisions, suggesting courts are now “recognizing that best practices in adjudication include cultural context and evidence is required to fully understand the power dynamics in an immigrant family and why issues such as family violence remain unspoken in many cases.” However, they argued that the existing framework of torts is too narrow to adequately take cultural context into consideration when analyzing instances of family violence.

Is Ahluwalia the right case to support a change in the law?

At para 52 of the Ontario Court of Appeal’s (“ONCA”) reasons, it cited Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551 for the proposition that “new tort is not required when the only difference from established torts is the quantum of damages”. The ONCA viewed Justice Mandhane’s decision as a departure from the approach the courts ought to take when changing the law, which is one that is incremental. It restated the widely recognized principle that significant change is best left to the legislature (para 92). Picking up on the ONCA’s reasons, the Respondent argued before the SCC that Ahluwalia was not the right case to support the creation of the TFV, as among other reasons, the quantum of damages was not at issue on appeal. The ONCA recognized Ms. Ahluwalia’s entitlement to damages under existing torts. The Respondent put it to the SCC, that if it denies the appeal, this need not close the door on the potential for creation of a new tort in the future.

Would the creation of the TFV present new challenges in family law?

During the hearing, Justice Rowe asked the Appellant whether the addition of the TFV would create more acrimony and complexity in family law cases. Family law practitioner Chandan Sabharwal said she believes there is “no doubt that the creation of TFV will add another layer of complexity to family law which is already a complex area of law but that layer of complexity is perhaps a necessary addition to family law in order to address the very real issue of family violence, which is still prevalent in our society.”

She further noted that “family violence if present in a case, generally does form part of the narrative in affidavits and testimony at trial as it may have an impact on parenting arrangements and perhaps on how the parties’ finances and roles were structured during their relationship. If family violence is a tort that is recognized, then it provides victims of family violence with an actionable legal remedy to address their situation. Rather than having to commence a civil action for the torts, TFV would be plead within the family law litigation, which would to some extent streamline the process.”

Masha Lokshin, a family law and estate practitioner at Westside Family Law, is concerned that with the creation of the TFV, “there would be significant confusion and uncertainty among counsel as to whether the tort needs to be pled, in terms of whether it could provide a remedy beyond that which already exists in family law for the facts of the case.”

She hopes that if the SCC recognizes the TFV, the court will “make very clear where a tort of family violence is truly appropriate to plead – that is, in what specific circumstances do existing family law claims and/or other torts not provide sufficient recourse.”