Ahluwalia from a Children’s Rights Perspective

The Supreme Court of Canada (“SCC”) recognised a new tort of intimate partner violence in its long-anticipated decision of May 15, 2026, Ahluwalia v Ahluwalia, 2026 SCC 16.[i] The decision notably filled an “identifiable gap” with the ability of existing torts to sufficiently redress “coercive control as a distinct manifestation of intimate partner violence”.[ii] However, despite compelling submissions from intervening children’s rights advocates, the SCC declined to recognize the broader tort of family violence, thereby confining the application of the new tort to an intimate partner relationship.[iii] What does this mean for other family members who experience family violence, such as children? 

The Case in Brief

The Respondent Mother was awarded $150,000 in damages after an 11-day trial involving equalization, child support, spousal support, and the Respondent Mother’s claim for damages in relation to the Applicant Father’s alleged abuse during marriage.[iv] The trial judge determined that the Respondent Mother, who endured sixteen years of a pattern of coercion and control by the Applicant Father, was entitled to a remedy in tort proportionate to the “extreme breach of trust occasioned by the Father’s violence…that brings some degree of personal accountability to this conduct”.[v] The trial judge recognized a new tort of family violence, awarding to the Respondent Mother $50,000 in compensatory damages, $50,000 in aggravated damages, and $50,000 in punitive damages.[vi] In allowing the appeal in part, the Ontario Court of Appeal (“ONCA”) unanimously determined that the trial judge erred in creating the new tort, as existing torts could appropriately address the harm experienced with family violence in intimate partnerships, and reduced the Respondent Mother’s damages award by $50,000.[vii] On appeal at the SCC, Justice Kasirer for the majority (Chief Justice Wagner, Justice Martin, Justice O’Bonsawin, and Justice Moreau concurring) noted that the ONCA erred in law by failing to consider “the distinct wrong of coercive control”, in that the harm to the Respondent Mother’s “dignity, autonomy, and equality in the relationship” was not adequately addressed by existing torts.[viii] The ONCA also erred by “stretching existing torts beyond their doctrinal limits” instead of establishing a “tailored, new tort”.[ix] The SCC maintained the quantum of the ONCA’s reduced damages award as this was not at issue on appeal.[x]

In a concurring decision, Justice Karakatsanis agreed with the recognition of the new tort, but disagreed that it should be confined to situations involving coercive control.[xi] In a dissenting opinion, Justice Jamal (Justice Côté and Justice Rowe concurring) opined that the appeal should be dismissed, as the trial judge found established torts grounded the same quantum of damages.[xii]

The Children’s Rights Perspective

Among the twenty interveners in the SCC decision was Justice for Children and Youth (“JFCY”), an Ontario non-profit legal aid clinic supporting and advocating for youth.[xiii] The JFCY submitted that family violence “uniquely and distinctly” harms children.[xiv] Children are “more, not less, harmed” by coercive control “precisely because of their unique dependence” on their caregivers.[xv] Children’s experience with family violence transcends abuse depicted in conventional family litigation among spouses and can be inflicted by a “range” of family members and “alternative care settings”.[xvi] The JFCY further submitted that “modes of liability” must provide for “equitable access to justice for children”, highlighting the importance of children’s participation and voices in legal processes impacting them.[xvii] Tortious conduct directed at adults is “equally, if not more, tortious when directed towards children”, such that attention must be drawn towards how “patterns of conduct that may not be recoverable as individual incidents, including exercises of parental authority, may become tortious through their repetition, abuse, and frequency”.[xviii]

Although the SCC made specific reference to the JFCY’s submissions, emphasizing “the harm children experience is not merely incidental to intimate partner violence”, it ultimately declined to consider the effects of family violence on children and other family members in the decision at bar.[xix] Justice Kasirer highlighted that labelling the new tort as the tort of “intimate partner violence” distinguishes from violence exacted at other family members, specifying that “[t]his is not to suggest that family violence against children, elders or other family members is not independently actionable in tort, but simply that the interests within the intimate partner setting respond to its unique relational dynamic that reflects conjugal intimacy”.[xx] Intimate partnerships must be “distinguished” from other “close relationships”, including between parent and child.[xxi] Although there may be “a high degree of closeness and dependence” giving rise to different tortious liability, there is a lack of “conjugal intimacy”.[xxii] A broader tort of family violence could be better positioned to address to concerns highlighted by the JFCY, but the SCC was not compelled to “impose liability on family members more broadly” in its decision.[xxiii]

While this may not seem like a win for children’s rights advocates, there is hope. Susan Kooknekoff, British Columbia lawyer and founder of Inspire Law, highlights that the decision “specifically preserves the ability of Canadian tort law to recognize coercive control directed toward children as an independent civil wrong”.[xxiv] Moreover, the decision signifies to the Canadian judiciary that family violence impacting children, “is a problem that a majority of the Supreme Court of Canada takes most seriously”.[xxv]

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