In Ahluwalia v. Ahluwalia 2026 SCC 16, the Supreme Court of Canada recognised (6-3) a new tort of intimate partner violence, based on coercive and controlling behaviour, overturning the Ontario Court of Appeal’s decision that the character of intimate partner violence could be captured by the existing torts of battery, assault and intention to inflict emotional distress, but agreeing with the level of damages awarded, $100,000. 

Kuldeep Kaur Ahluwalia, had been subject to abuse by her husband, Amrit Pal Singh Ahluwalia, over their 16-year marriage, which included but was not limited to physical assault, emotional and psychological abuse, social isolation, economic control, and sexual coercion. Damages were sought through tort law, alongside family law remedies following the relationship breakdown. Properly reflecting the nature and harms of intimate partner violence in law is important. Tort law has typically worked – and often still does work – to reproduce inequalities and harms along the lines of gender, race, class, sexuality and ability. The majority, with Karakatsanis J. concurring, characterised intimate partner violence as violating the rights to dignity, autonomy, and equality, as well as identifying the inherent gendered power dynamics and intersecting power relations which can increase vulnerability and violence (Kasirer J., for the majority, paras 124-125). Existing torts which typically centre on isolated incidents were deemed insufficient to capture the wrong and harms (Kasirer J., for the majority, paras 10, 20 122-124). This case is thus symbolically powerful and marks a watershed moment for tort law in Canada.

Nevertheless, I have my reservations as to what this will mean for the majority of survivors in practice. One concern is about accessibility of the law. In Canada, family law courts are already fraught with excessive delays, increasing legal costs, and limited trial resources. Increasing civil litigation within this is likely to exacerbate these difficulties, and there is a real question as to who will be able to access the courts and afford to litigate. Moreover, as is the case with tort law generally, where tortfeasors are uninsured – which is likely the case for all individual tortfeasors as opposed to an organisation or state body – most will not have the ability to pay any damages awarded. This is coupled with family law proceedings following relationship breakdown where usually the problem is that there is not enough money to go around, and the challenge is to meet needs, especially where children are involved. So whether survivors will often materially benefit from the new tort of intimate partner violence is a significant question.

Another concern is about backlash and defensive tactics used by perpetrators which end up penalising survivors and subjecting them to further harm. There is a risk that gendered and racialised myths and stereotypes will be invoked; indeed, as the Rise Women’s Legal Centre points out, this was a strategy used by Mr Ahluwalia at trial, and the myth that women lie about abuse was present in the Ontario Court of Appeal decision. There is also a risk of counter-claims. Since civil claims for sexual violence have become increasingly possible due to doctrinal and procedural legal changes, combined with increased public recognition of abuse and the potential for legal liability, there has been an increase in defamation claims, or other legal tactics, to silence survivors. In addition, as has been seen in criminal and family law proceedings involving intimate partner violence, perpetrators make allegations against survivors, with legal and other professionals often failing to identify the ‘primary aggressor’. In this context – tort law claims alongside family law proceedings – similar issues are likely to arise. Indeed, the majority recognised this and aimed to frame the new tort so it would not capture acts of resistance against abusive behaviour (Kasirer J., for the majority, para 15). However, as Karakatsanis J. (concurring) points out, even if the new tort may not easily be used for a counter-claim, other torts such as battery could be (paras 286-287). And as is seen in the criminal law, self-defence is very limited and does not easily work for victims of domestic abuse.

My point here is not to say that the law should not change, or that survivors should not pursue legal remedies for fear of being sued. Many individuals who find themselves in circumstances like Amrit Pal Singh Ahluwalia often have few options but to turn to law, and should be supported. However, feminist activists and organisers need to be careful not to get tied up in legal battles. As I have argued elsewhere, doing so can mean focusing only on making improvements to the current systems at the expense of organising and strategizing for more radical social, economic and political transformation. What would family law look like if we abolished the family? Would we need tort law if harm and violence were addressed and resolved collectively, and the consequences were properly addressed through more radical redistributive mechanisms? We should avoid over-reliance on systems which individualise and depoliticise abuse, and which do not encourage meaningful accountability, that is, where individuals, groups, communities, organisations and institutions accept responsibility for harm and act to change at all levels. Instead, we have to focus on addressing the underlying conditions which enable gendered harms like intimate partner violence.