Beyond Ahluwalia: Practical Considerations for Litigating IPV Claims

When the Supreme Court of Canada established the new tort of intimate partner violence ("IPV") in Ahluwalia v. Ahluwalia,[1] it answered a call to action to address and provide a remedy to the coercion, control, and systemic harm that results from this pervasive form of abuse.

In the wake of the decision, family and civil lawyers now have to figure out how to effectively litigate these cases. How should they be pleaded? What evidence will courts find persuasive? How much corroboration is necessary? Is expert evidence required? How will courts distinguish the new tort from the traditional torts (assault, battery, and intentional infliction of emotional distress)? Perhaps most importantly, how will damages be assessed?

Drawing upon two recent post-Ahluwalia Ontario decisions, Mitchell v. Mitchell[2] and Fang v. Lu,[3] this article aims to provide practical guidance on how family and civil lawyers should plead, prove, and value intimate partner violence claims.

The Test for Intimate Partner Violence: A Brief Refresher

A plaintiff must prove, on a balance of probabilities, that:

1. the defendant (a) committed wrongful or abusive conduct (b) during an intimate partnership or in its aftermath;

2. the defendant intentionally engaged in that conduct; and

3. viewed objectively and in the full context of the relationship, the conduct amounted to coercive control.

The third element asks whether a reasonable person, fully apprised of the relationship’s context, would perceive the defendant’s conduct, considered cumulatively, as an assertion of control that deprived the plaintiff of dignity, autonomy, and equality. The plaintiff need not prove that the defendant subjectively intended to control them or to cause a particular harm.

Coercive control may include physical or sexual violence, emotional and psychological abuse, humiliation, financial control, isolation, intimidation, surveillance and monitoring, stalking, threats, making false allegations to police and employers, and litigation abuse. A pattern is common, but even one violent act may be sufficient if, in context, it objectively operates to subordinate or control the other partner.

Mitchell v. Mitchell

Mitchell v. Mitchell is the first reported decision to consider the new tort of IPV following Ahluwalia. In this case, throughout a 54-year marriage, the wife endured repeated physical violence, threats and intimidation, verbal and psychological abuse, isolation, and financial control at the hands of her then-husband. Following separation, his verbal and psychological abuse, threats and intimidation, continued.

After careful consideration of the evidence, which included audio and voicemail recordings of the husband, records from criminal proceedings against the husband, and the testimony of the parties and their four children, Justice Susan Vella found that the wife satisfied the test set out by the Court in Ahluwalia.

Justice Vella’s decision provides valuable guidance on how to approach IPV claims, including the evidence required to support a claim and how it will be considered by the Court, as well as how damages should be quantified. Significantly, a new high-water mark for damages stemming from IPV was set, with Justice Vella awarding the wife $400,000 in compensatory damages, and $25,000 in punitive damages.

Fang v. Lu

Fang v. Lu was released only a few days after Mitchell and involved a 16-month period of psychological and emotional abuse, threats, degrading language, financial and household control, and some incidents of physical and sexual violence.

The evidence considered at trial included the testimony of the parties and the wife’s daughter, the testimony of a neighbour, and video recordings of the husband’s misconduct. Notably, the wife did not lead any medical or expert evidence about the harm she suffered. This evidentiary gap may help explain the comparatively modest award of $40,000 for compensatory damages in Fang. Justice Tobin’s analysis regarding this evidence provides additional guidance on how evidentiary issues will be approached by the Court.

Key Takeaways and Practice Considerations

1.     Framing is More Important than Naming

In both Mitchell and Fang, arguments at trial concluded prior to release of the SCC’s decision in Ahluwalia, following which the parties were invited to make written submissions. Both wives sought to advance the new tort and be awarded corresponding damages and were successful in doing so, despite arguments from the husbands that their claims were not supported by their pleadings. The court held that amendments can be made nunc pro tunc (i.e., as if they had been made all along)

The decisions stressed that the family courts are able to take a flexible approach to the interpretation of pleadings, as long as the parties know the cases that they must meet. The necessary material facts had been pleaded to satisfy the elements of the tort of IPV, the evidence had been fully canvassed with nothing further required, the husbands were not taken by surprise, and there was no evidence of prejudice against them.

There are two messages we can take away. The first is that in existing cases arising from intimate partner abuse that may be at various stages of the litigation process, claimants should easily be able to pursue the new tort, provided the elements have been adequately pleaded, including details of intentional abusive or wrongful conduct, and an allegation of coercive control or conduct objectively amounting to coercive control.

Second, is a broader message that pleadings for new cases claiming IPV should be carefully drafted to include the new tort not only by name, but with adequate supporting facts and allegations to satisfy all elements of the IPV test. Where appropriate, the traditional torts and their factual elements should also be pleaded.

2.     Traditional Torts Remain Important Building Blocks

The role of the traditional torts of battery, assault, and intentional infliction of emotional distress in the framework for the new tort of IPV was left unclear following Ahluwalia. Justice Vella provided much-needed clarity in Mitchell, explaining that although the traditional torts can be used to establish specific forms of wrongful conduct and their consequential harms, IPV extends beyond independently tortious conduct.

Justice Vella also specifically addressed the distinction between intentional infliction of emotional distress (“IIED”), which requires a visible and provable illness, and IPV which does not, stressing however that IIED still provides guidance as to the type of verbal and psychologically-driven conduct that will be captured by IPV. It is also important to note that a formal diagnosis or expert evidence is no longer necessary to establish a “visible and provable illness”.

Claimants should continue to plead existing torts as part of the abusive or wrongful conduct required under the first branch of the IPV test, but should also include other behaviour, such as financial abuse, litigation abuse, gas lighting, harassment, humiliation, denigration, isolation, and interference with education, employment and recreational opportunities, which may not independently constitute any of the traditional torts.

3.     Collect and Preserve All Potential Evidence as Early as Possible

Mitchell and Fang both demonstrate the importance of contemporaneous evidence and courts’ permissive approach to admissibility where justified.

In Mitchell, Justice Vella relied on third-party medical records and records relating to criminal proceedings, but also on voicemails, photographs, and testimony from multiple family members. The court admitted surreptitiously recorded telephone calls after finding them reliable, authenticated, and highly probative of the hostility, threats, and pattern of abuse alleged. The usual concern about secret recordings in family proceedings carried less force where the recordings captured alleged family violence, and where there were no dependent children or good-faith spousal relationship left to protect.

In Fang, Justice Tobin placed significant weight on video recordings that captured not only what was said, but how it was said. They were consistent with the wife’s description of the relationship and assisted the court in assessing whether the alleged misconduct occurred and whether it amounted to IPV.

Intimate partner violence predominantly occurs behind closed doors with active steps taken by perpetrators to conceal and maintain secrecy, which can be a challenge for lawyers trying to prove what occurred. Clients should be interviewed comprehensively, and all potential evidence should be collected as early as possible: with the passage of time and where there are cumulative stressors and trauma, memories fade, seemingly minor incidents are forgotten, digital evidence can be lost or deleted, and timelines become increasingly difficult to reconstruct.

Text messages, emails, pictures, video and audio recordings, and evidence of witnesses may be the only other evidence that exists to corroborate a claimant’s version of what occurred in the relationship. Changing phones or computers, deleting or losing track of digital evidence, and fading memories of witnesses, can quickly become impediments if this evidence is not collected right away.

With respect to recordings, it is important to keep in mind that reliability, completeness, context and prejudicial effects remain relevant. Where recordings already exist, counsel should preserve the original files and metadata, determine who made them and when, obtain available surrounding communications and explanations of context, and consider what is required to establish authenticity.

4.     Participant Witnesses: Cost-Effective and Valuable

For the tort of IPV, once its three elements are proven, the dignitary harm arising from coercive control is presumed to follow from the wrong itself. Although separate proof of consequential harm is not required to establish liability, evidence of negative physical, psychological and economic consequences is still critical for quantifying damages so compensation is more than nominal. Obtaining expert evidence is expensive and can be a serious access-to-justice barrier, particularly for self-represented litigants.

Mitchell points to a more accessible approach. The wife explicitly disclosed her ongoing abuse to two doctors. Justice Vella accepted and relied upon the evidence of two participant experts, the wife’s family doctor and her naturopath, with respect to their opinions on diagnosis, medical and psychological conditions, causation, and prognosis formed in the course of treatment, as well as their fact evidence regarding their clinical observations and treatment of the wife.

Often other explanations are provided by claimants to explain their abuse-related injuries. In Mitchell, the wife testified about years of repetitive twisting of her arms behind her back by her husband, resulting in repeatedly torn rotator cuffs and chronic shoulder pain. Despite this reality, she had previously told her family doctor that these injuries were caused by other things, including packing and moving. In assessing the wife’s damages, Justice Vella viewed all the evidence together and still connected the shoulder injuries to the abuse.

Calling treating healthcare providers as participant experts at trial can be a cost-effective alternative to hiring experts to provide a medical opinion. Their evidence can be a valuable tool for proving harm caused by IPV. Where the abuse was not disclosed or another explanation was given for injuries, medical records, combined with other corroborative evidence (witness testimony, video footage, etc.) can be used to tie the injuries to abuse.

5.     Damages Exceed those for Traditional Torts and are Not Subject to the Cap

One of the biggest unanswered questions following Ahluwalia, was how damages flowing from IPV should be assessed and quantified. Mitchell provides a well-reasoned framework and confirms that the personal injury cap on non-pecuniary damages does not apply.[4]

Justice Vella awarded the wife $400,000 in compensatory damages plus $25,000 in punitive damages, which is the highest award to date in a reported IPV/domestic violence decision in Canada, for non-pecuniary damages arising from intimate partner abuse. In doing so, Justice Vella first assessed the damages from the overlapping traditional torts at a combined amount of $300,000, including aggravated damages. Then, she considered the additional harm caused by the severe impairment of the wife’s sense of dignity, her autonomy to make decisions for herself and her family, including the ability to leave the abusive marriage earlier to start a new life, and her right to equality in the intimate partnership. She valued this additional harm at $100,000. Thus, total compensatory damages were $400,000.

What counsel can take away from this analysis is that they should first look to the factors for quantifying damages under the traditional torts, including the vulnerability of the victim, the number, frequency and severity of the wrongful behaviour, and the consequences to the victim, and build the evidentiary record to support these factors. Then, they need to look at the actual harms arising from the coercive control and resulting interference with their dignity, autonomy, and equality in the intimate relationship. This part of the analysis presents a unique opportunity to get to the heart of what the particular claimant has actually lost, outside the confines of the traditional torts.

Experience and Creativity, For the Win!

The tort of IPV is new, but as personal injury lawyers we have been representing survivors of intimate partner violence in tort claims pursued through the family courts for years.  Prior to the creation of the standalone tort of IPV, we encountered hesitation from courts and some members of the family law bar to take these claims as seriously as they deserve. By testing the effectiveness of different strategies, getting creative in the types of evidence we look for, and being persistent in our attempts to educate those we encounter about the developments in the law and changes in societal norms, we have been able to work closely with family lawyers to successfully prosecute these claims.

Our hope is that the creation of the new tort of IPV is only the beginning of further progress, and as more cases are litigated and talked about publicly, meaningful change can be made towards a society that values and protects the dignity, autonomy, and equality of both members of every intimate partnership.

[1] 2026 SCC 16 (“Ahluwalia”)

[2] 2026 ONSC 4259 (“Mitchell”)

[3] 2025 ONSC 3617 (“Fang”)

[4] In a trio of 1978 decisions known as the "trilogy," the Supreme Court of Canada imposed a “cap” on non-pecuniary (pain and suffering) damages in negligence cases; which inflation-adjusted is now equivalent to approximately $470,000 in Ontario. See: [1978] 2 SCR 229.