In one of the most closely watched family law decisions in recent Canadian legal history, the Supreme Court of Canada issued a fractured ruling in Ahluwalia v. Ahluwalia, a case arising from a marriage marred by intimate partner violence.
Out of 9 justices, 5 decided to create a new law to give victims of intimate partner violence the right to ask for compensation from their spouse after ending their relationship. One justice partly agreed. Three justices – Côté, Rowe, and Jamal – issued a powerful dissent. And now Canada has a new law – by a hair.
So it is worth unpacking why 33% of the pack of 9 justices did not agree with this outcome (Note: if you include the 3 Ontario Court of Appeal justices that also disagreed with the majority, that would mean that 50% of the appellate justices voted for no new law).
The reasons of the dissenting justices stand as a robust defence of judicial restraint – which is not what the trial judge in Ahluwalia demonstrated. Justice Mandhane made a ruling that no one asked for, granted compensation under a law that she created and calculated compensation with no evidence whatsoever of quantification.
So is it surprising that the Ontario Court of Appeal overturned her decision and that 33% of the Supreme Court of Canada also would have reversed her decision?
Here’s the skinny:
The dissenting justices agreed with the Ontario Court of Appeal that the trial judge should never have created a new tort, because existing torts were fully capable of providing Ms. Ahluwalia with complete and just compensation. In the dissenters’ view, creating new law when existing laws already exist is not judicial evolution – it is judicial overreach.
At the heart of the dissent lies a foundational principle of the common law tradition – taught in grade 10 Civics, political science courses in university and law school: Judges are not legislators. They apply, and incrementally develop, existing law through the application of the adduced facts to existing law. It is not the role of judges to embark on abstract law reform.
In Canada’s most recent federal election held on April 28, 2025, 343 MPs were elected. The Liberal Party collected 169 seats under Prime Minister Mark Carney. The Conservative Party collected 144 seats under Pierre Pollievre, becoming the official opposition. Bloc Québécois collected 22 seats. The NDP collected 7 seats. The Green Party collected 1 seat.
Regionally, Ontario elected 122 MPs, Quebec elected 78 MPs, BC elected 43 MPs, the Prairies (Alberta, Saskatchewan and Manitoba) elected 65 MPs and the Territories (Yukon, NWT and Nunavut) elected 3 MPs.
Each of the 343 MPs are Canada’s legislators. Each community in Canada elects its representative in the legislature. These MPs are carefully scrutinized and selected by the majority of voters in their riding. Each province has a voice that is heard in the legislature representing their unique needs. Each MP has a term in office that expires at the next election. The values and objectives of each political party are well known so as to allow electors to choose their legislator. In Canada, democracy functions by ensuring that any new law is the product of careful, thoughtful, and open debate in parliament by 343 MPs – not one lone judge in Brampton or 5 + 1 judges in Ottawa.
The case of Ahluwalia has caused Canadians to ask – who really has the responsibility for creating their laws.
The 3 dissenting judges hold a strong view that it is not them and that Justice Mandhane made a mistake, the 3 justices of the Ontario Court of Appeal fixed it and their 5 colleagues were wrong. Justice Jamal drew expressly on the writings of former Chief Justice Dickson, at paragraph 304 of the decision:
“The courts are limited to the issues brought to them by litigants and to the facts developed by the litigants and their counsel in the courts of first instance. The changes we develop must necessarily come from the cases which come before us and thus we, the judges, of necessity, proceed in a somewhat piecemeal fashion. Legislatures, on the other hand, have the ability to engage in systematic overall reform or, as it were, to take a more global bite.”
This passage captures precisely why the dissenting justices objected to what the trial judge, and ultimately the very slim majority of the Supreme Court, had done. Legislators hold the democratic mandate and institutional capacity to study social problems comprehensively, consult affected communities, weigh competing policy considerations, and craft broad remedial frameworks. Courts have none of these tools. They (barely) see the parties before them, hear only the evidence led at trial, and must confine their legal reasoning to what is strictly necessary to resolve the dispute at hand.
In fact, other than the sole trial judge, all the other 12 appellate judges never met nor heard from Ms. Ahluwalia or from Mr. Ahluwalia.
The dissent identified a clear and settled precondition for the recognition of a new tort: existing law must be inadequate to provide the plaintiff with a remedy. Justice Jamal made this point with great force. There were no facts that cried out for a remedy – because the remedy had already existed. These 3 dissenting justices were deeply troubled by the manner in which the new tort came into existence at trial.
The trial judge raised the question of a new tort entirely on her own initiative, after the close of evidence. Ms. Ahluwalia had never asked for a new tort. She had relied exclusively on existing case law and sought damages under existing causes of action. Mr. Ahluwalia had expressly objected to the process, arguing it was fundamentally unfair for the trial judge to advance a theory of liability that no party had pleaded or argued. Yet this solitary trial judge proceeded anyway, creating a tort of family violence that neither party had sought and on which the evidence had not been specifically led or tested.
Justice Jamal observed:
“Neither party argued for such a tort. Both parties first learned of this new tort only upon receiving the trial judge’s reasons for judgment.”
This violated basic principles of procedural fairness. A party must know the case it has to meet. Evidence is led, witnesses are examined and cross-examined, and arguments are advanced on the basis of the issues as framed. Introducing a new theory of liability after the fact deprives the opposing party of a fair opportunity to respond.
The dissent pointed out that the existing torts of assault, battery, and intentional infliction of emotional distress collectively provide robust and comprehensive protection for victims of intimate partner violence and Canadian courts have been applying them effectively and generously for years. Assault protects against threats of physical violence that cause a reasonable apprehension of imminent harmful contact, even when that contact never materializes. Battery protects bodily integrity from non-consensual physical contact. Intentional infliction of emotional distress (IIED) protects psychological integrity and captures flagrant or outrageous conduct calculated to cause harm, resulting in serious and prolonged injury.
The dissent cited an impressive body of jurisprudence to show that lower courts across Canada have been doing exactly this work, without any new tort. In Wang v. Li, $75,000 was awarded for IIED based on spousal abuse over four years. In Barreto v. Salema, $150,000 in damages and $10,000 in punitive damages were awarded for assault, battery, and IIED arising from ten years of spousal abuse. In Zunnurain v. Chowdhury, $175,000 in compensatory and aggravated damages and $25,000 in punitive damages were awarded for nearly twenty years of spousal abuse. In M.J.A. v. V.S.B.C., verbal abuse, psychological manipulation, and financial exploitation were treated as the basis for IIED, with the court explicitly recognizing that patterns of behaviour and relational context are fully relevant to the analysis. In Sethi v. Sethi, $100,000 was awarded for a thirty-year marriage marked by physical, sexual, emotional, and financial abuse, with the court finding that both specific incidents and the overall pattern of harm supported the claim.
None of these cases required a new tort.
All of them provided meaningful, substantial remedies to woman just like Ms. Ahluwalia.
The dissenting justices had even more worries than this. Abusers could weaponize the new tort against their victims. Limitations periods could be thrown into disarray, as many provincial limitations statutes contain specific exemptions for claims based on assault and battery in the intimate partner context. There is zero guidance on damages [Recall, Ms. Ahluwalia did not adduce any evidence on quantification of her general damages or past and future income loss or special damages for her recovery.]
As the dissent put it, recognizing a new law in this case was “complex changes to the law with uncertain ramifications”. The proper response to complex social problems requiring comprehensive legal reform is to await legislative action.
The dissent of Côté, Rowe, and Jamal JJ. in Ahluwalia is a careful, principled, and compelling defence of the foundational distinction between judicial and legislative roles in a democratic legal system. Its core message can be stated simply: Courts exist to resolve disputes, not to reform the law in the abstract. When existing law provides a full and just remedy to the plaintiff before the court, there is no justification and indeed no legitimate basis for reaching beyond the dispute to create new legal terrain.
Running through the entire dissent is an insistence that law reform is properly the work of Parliament and provincial legislatures, not the courts.
So, who really is in charge of creating new law in Canada?
This article was recently published in LexisNexis Canada LAW360 at https://www.law360.ca/ca/family/articles/2485304/ahluwalia-why-did-three-scc-judges-disagree-
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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