In the landmark SCC decision in Ahluwalia, 9 judges could not agree. While 5 formed the majority and 3 dissented, Justice Karakatsanis charts her own independent course – agreeing with neither camp entirely. She wrote separately to express a vision for the tort of intimate partner violence (IPV) that she believes is both broader, and more just, than what her colleagues had proposed.
Justice Karakatsanis opens with a powerful moral declaration, where at paragraph 271 she describes, IPV as the most personal violation of trust in the private space of a family that inflicts long-term psychological harm.
On the core question of whether a new tort of IPV should exist, Justice Karakatsanis agrees with the majority. She agrees that survivors should be entitled to collect compensation if they can establish (1) the injuries arose in an intimate spousal relationship and (2) the defendant spouse intentionally engaged in abusive conduct.
She however disagrees with the 5 judges on the third branch of the legal test. While the majority requires that the intimate partner’s conduct constitutes coercive control that causes harm, Justice Karakatsanis breaks away from both packs.
In her view, an assault by an intimate partner is fundamentally different from an assault by a stranger. Hence, excluding assault from IPV is wrong. She hence coined the term “one-stop shop” for the new tort.
While the majority stopped at remedying coercive control with the new law and referring victims to the old law for other compensation, Justice Karakatsanis does not think that a victim of IPV should need to sue for multiple torts such as assault, battery, and intentional infliction of emotional distress – each with its own legal requirements and burdens of proof. This approach, in Her Honour’s view, is unnecessarily complex and fundamentally unfair to those it was meant to serve.
She writes at paragraph 280 of the decision that survivors who will rely on the new tort of IPV will often be powerless, vulnerable, financially-weak and self-represented and so, she wrote, it is overly burdensome to require such victims to navigate a patchwork of torts to fully capture the diverse harms they have experienced. Her solution was elegant in principle: one tort, broad enough to capture all forms of IPV-related harm. She wrote plainly: “I see no reason why the new tort of intimate partner violence should be limited to coercive control. Rather, this tort should be broad enough to capture the unique wrongfulness and elevated harm that flows from violence in intimate partner relationships.”
Justice Karakatsanis’s reasoning is compassionate, principled, and hard to argue with in theory. However, as those with years of experience in family law courtrooms know, the gap between legal principle and practical reality can be enormous.
Consider the numbers: Ms. Ahluwalia was awarded $100,000 after 16 years of abuse – a paltry sum of $17 per day of suffering. Once the costs of litigation are subtracted, any meaningful financial recovery becomes increasingly unlikely. Make no mistake, a claim for IPV damages will not be resolved in a few weeks, early in the case, after pleadings are exchanged or on a motion for summary judgment. Not a dollar of compensation will be awarded until the full litigation gauntlet of pleadings, conferences, cross-examinations and a lengthy trial occur.
The survivor that Justice Karakatsanis attempts to protect is, according to her, powerless, vulnerable, financially-weak and self-represented. In the real world, it is difficult to imagine how a survivor of IPV could marshal the resources required to withstand a protracted 2 to 5 year litigation against a well-resourced and motivated adversary, who will almost certainly be represented by a lawyer, deny all allegations of IPV, and deploy every procedural tool available to delay, exhaust, and undermine such a claim. One would hope that every survivor of IPV would have the bravery of Ms. Ahluwalia.
Justice Karakatsanis is 100% correct that IPV is wrong and must not occur. She is 100% correct that if it does happen, there needs to be a remedy. She is able to succinctly articulate the central difficulty of IPV: that survivors are not only forced to endure abuse behind closed doors, but are later required to explain it, relive it, and translate it into cogent and credible evidence for the family court system. This is why she demands a “one-stop-shop” approach. For offering a different solution than the majority to account for this difficulty, Justice Karakatsanis deserves admiration for her striking compassion.
But law on paper, and law in practice, are two different things. Compassion alone does not empower the powerless, vulnerable, financially-weak and self-represented. Compassion does not grant a Legal Aid Certificate for the victim to be assigned a lawyer or pay her legal bills. Compassion will not draft the survivor’s Application for IPV, drive with her to court each time over 2-5 years, hold her hand during cross-examination or wipe her tears. Compassion will not give power to the powerless, courage to the vulnerable or funding for legal representation.
Before any survivor is encouraged to pursue a claim for IPV damages, the cold arithmetic of litigation deserves an honest reckoning.
Ms. Ahluwalia was awarded just over $17 per day. And that is before a single dollar of legal fees is deducted. By the time a claim of this nature winds its way through the full litigation process, whatever remains of that award may be reduced to a fraction of its face value, or consumed entirely. This is not pessimism or speculation. It is the lived reality of civil litigation in Canada.
A tort claim for IPV will require a full evidentiary record, witness testimony tested through cross-examination, proof of injuries through the production of the medical and therapy records, the calling of the victim’s doctors and therapists who also will be subjected to cross-examination on all of the private disclosures made by that victim – all before any amount of damages could be awarded.
Justice Karakatsanis rightly noted that many survivors are weak, vulnerable and self-represented. But consider what self-representation in this context truly means. A woman who has survived years of psychological manipulation, financial control, and physical violence is now asked to navigate the rules of evidence, procedural deadlines, and courtroom advocacy – alone – against a spouse who has every incentive to bury her claim and every resource to try. The litigation itself can become a form of abuse. The survivor who enters this process hoping for vindication may instead find herself re-living every assault, every act of humiliation, every moment of fear – not once, but repeatedly, across years of litigation.
One must ask plainly: is it justice to open a door for survivors of IPV, invite them through it, and then subject them to a process that may cause as much harm to them as the abuse they are trying to remedy?
With all due respect to the SCC, $17 per day for IPV is not justice. It is a ‘symbol’ of justice. It is a public service statement. It is a political statement. While admirable, it does not rebuild a victim’s life, restore lost years, or compensate for the real wounds that will never fully heal.
After three decades representing hundreds of victims of IPV, and as a father and grandfather of girls, I emphatically state that no woman should ever have to go through what Ms. Ahluwalia endured. Not the abuse. Nor the marriage. And not the litigation that followed. What every woman, and what every son, brother, uncle, father and husband must know is that IPV is prohibited, full stop. We all must recognize the early warning signs of IPV, coercive control and unsafe intimate relationships early enough to intervene and support women in leaving at the very first moment.
The Supreme Court of Canada has done something meaningful in Ahluwalia. It has said, formally and unanimously, that IPV is wrong, that it causes serious harm, and that survivors deserve recognition and compensation.
But the law is only as powerful as a survivor’s ability to use it. And until the barriers of cost, complexity, re-traumatization, and imbalance of power are genuinely addressed, the tort of IPV risks being something that looks far better from the bench of the Supreme Court of Canada in Ottawa than it does from the courtroom of the Brampton courthouse where the victim is sitting by herself and shaking while awaiting her trial.
Steve Benmor, B.Sc. LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, Acc.D.C., is a full-time Divorce Mediator/Arbitrator and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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