Can I Claim Damages for Intimate Partner Violence in Ontario? A Look at Ahluwalia and Mitchell

Intimate partner violence (“IPV”) can take many forms. As the Supreme Court of Canada recognized in its long-awaited decision on the tort of IPV, Ahluwalia v. Ahluwalia, IPV is not limited to physical violence, but includes “tactics of isolation, manipulation, humiliation, surveillance, economic abuse, sexual coercion, and intimidation that can control and entrap intimate partners.” The Supreme Court of Canada has recognized IPV as a serious social problem that extends far beyond physical violence. 

But given how new and untested this tort is, many questions remain: Who can sue for intimate partner violence? What threshold must be crossed for the conduct for a claim to be successful? And how will damages be assessed by the courts? 

The Test for the Tort 

The Supreme Court of Canada created a three-part test to determine if conduct meets the threshold for the tort of IPV: 

1. the abusive conduct must have happened in an intimate partnership or its aftermath; 

2. the defendant must have intentionally engaged in that conduct; and 

3. the conduct must objectively be coercive control. 

Each of these elements must be established on a balance of probabilities before damages can be awarded. 

Who Can Sue? 

The first part of the test determines who can bring an IPV claim. Specifically, to bring an IPV claim, the person alleging the abuse must have been in an intimate relationship with the person they are suing. 

The Supreme Court of Canada adopted a broad understanding of what constitutes an intimate partnership. An intimate relationship does not require marriage, cohabitation, or a sexual relationship. Rather, the Supreme Court of Canada described an intimate partnership as a relationship of close personal connection, sustained over time and marked by emotional, domestic, financial, or physical intimacy, mutual interdependence, care, or commitment. 

As a result, the tort may apply to married spouses, common-law spouses, and some dating relationships. However, the tort is specifically tied to intimate partnerships. It does not create a standalone tort claim for violence between other family members, such as parents and children, siblings, or elderly family members. Those individuals may still have access to other legal remedies, including traditional tort claims and remedies available under family law legislation where applicable. 

What is Intentional Conduct? 

The second prong of the test asks if the conduct was intentional. This prong can be easily confused for a requirement that the defendant subjectively intended to be abusive, controlling, or act with malice. The person bringing the claim only have to show that the conduct was deliberate. It is not necessary to prove that the defendant intended to control their partner or intended to commit IPV. 

Put differently, the test is concerned with whether the conduct itself was deliberate, not whether the defendant intended to be abusive or admits that the conduct was abusive. 

What is Coercive Control? 

In Mitchell v. Mitchell, one of the first decisions applying the new tort of IPV after Ahluwalia, the court described coercive control as the feature that distinguishes the tort from existing claims such as assault, battery, and intentional infliction of emotional distress. The element of coercive control is what allows the tort of IPV to address patterns of abusive behavior that may not be actionable in isolation but become actionable when considered collectively.  

In determining whether conduct constitutes coercive control, a court will consider an act or acts of violence that undermine the claimant’s autonomy, dignity, and equality. The Supreme Court of Canada set out a non-exhaustive list of conduct beyond physical violence which may constitute coercive control, including: 

• psychological, sexual or emotional violence;

• controlling behaviour such as stalking, monitoring activities and financial control;

• intimidation, threats to family members, or making false allegations to the police or to employers;

• litigation abuse; and preventing the victim from seeing family and friends, working, or participating in other educational or recreative activities. 

While the tort was designed to capture patterns of behaviour, the Supreme Court of Canada is clear that multiple acts are not necessary to establish coercive control. A single act of violence may be sufficient to establish liability if, viewed in context, it objectively constitutes coercive control and undermines the claimant's dignity, autonomy, and equality in the relationship. 

The Supreme Court of Canada also placed important restraints on the element of coercive control. First, it excludes instances of violence that do not interfere with the claimant’s dignity, autonomy, and equality in the relationship, particularly when the violent act is committed in resistance to an intimate partner's attempt to dominate or control the other (though these instances may still be actionable under the traditional torts). 

Second, the Supreme Court of Canada is very clear that the tort of IPV does not impose liability based on “the inevitable ups and downs of a relationship or for mere dysfunction.” Coercive control must go beyond the “anti-social conduct that often characterizes a high conflict relationship breakdown.” 

How Will the Court Assess Damages? 

Once these elements are established, the court will assess damages. Technically, a claimant does not need to prove additional harm because the injury is presumed to flow from the wrongful conduct itself. In practice, however, a claimant seeking a significant damages award will usually need evidence showing how the IPV affected their life. 

In Ahluwalia, the Supreme Court of Canada gave a broad framework for assessing damages for the tort of IPV. First, they reject any “family discount” in assessing damages. The Supreme Court of Canada observed that trial judges have often assessed damages more moderately where violence takes place between intimate partners, and it firmly denounces this approach. 

Second, the Supreme Court of Canada held that IPV causes a distinct harm. As a result, damages for IPV may be higher than would otherwise be available for related claims such as assault, battery, or intentional infliction of emotional distress. An award must be sufficient to compensate the claimant for the harm to their dignity, autonomy, and equality, in addition to whatever other harm they may have suffered under the traditional torts. 

More specific guidance on damages has recently arrived from the Superior Court in Mitchell v. Mitchell. Justice Vella held that damages for the tort of IPV are to be assessed using ordinary tort law principles, which can include pain and suffering, loss of income, compensation for specific expenses (special damages), as well as aggravated and punitive damages. However, Mitchell is particularly significant because it provides the first clear roadmap for how to assess damages after Ahluwalia. Justice Vella first assessed the claimant's damages for the traditional torts of battery, assault, and intentional infliction of emotional distress, which she valued at $300,000. She then separately considered the tort of IPV and concluded that an additional $100,000 was required to compensate the claimant for the distinct harm caused by coercive control and the resulting impairment of her dignity, autonomy, and equality. The result was a total compensatory award of $400,000, plus $25,000 in punitive damages.  

In practical terms, the court in Mitchell  treated the tort of IPV as compensating a distinct injury beyond the traditional torts. After assessing damages for the assaults, batteries, and emotional abuse, the court concluded that an additional $100,000 was required to compensate for the loss of dignity, autonomy, and equality recognized in Ahluwalia. 

Key Takeaways 

• To be successful in a claim for IPV: 

  • the violent or abusive conduct must have arisen in an intimate relationship between the claimant and the defendant; 

  • the conduct must have been intentional by the defendant; and 

  • the conduct must amount to coercive control. 

• Coercive control is conduct that undermines or interferes with the claimant’s autonomy, dignity, and equality within the relationship. 

• The tort of IPV is designed to capture coercive and controlling conduct that is not fully addressed by the traditional torts. 

• The courts have recognized IPV as causing a distinct harm which can entitle the claimant to compensation beyond what they may be entitled to under the ‘traditional torts.’ 

If you are experiencing intimate partner violence and need guidance on your legal rights, our Family Law team is here to help. Contact us today for compassionate, confidential advice and support tailored to your situation.