Intervention: Ahluwalia v. Ahluwalia
Rise Women’s Legal Centre and West Coast LEAF are jointly intervening in Ahluwalia v. Ahluwalia at the Supreme Court of Canada (SCC) to address the effects of myths and stereotypes about intimate partner violence in family and tort cases.
Rise and West Coast LEAF will ask the SCC to prohibit the courts’ use of myths and stereotypes when deciding cases involving intimate partner violence (IPV) in family and civil law. We will invite the SCC to consider the impact of myths and stereotypes when determining if the new tort of family violence should be made.
Common myths and stereotypes about IPV include:
Women lie about or exaggerate family violence to gain advantage in court, or because they are vengeful or “crazy”.
IPV is only serious if it is physical.
IPV does not harm children and has nothing to do with the perpetrator’s parenting ability.
Victims of IPV are often expected to endure abuse for the perceived interest of a child, such as maintaining a co-parenting relationship.
“True” victims of IPV are expected to display certain behaviours, such as leaving the relationship, disclosing family violence early, reporting IPV to the police, consistently presenting as helpless and dependent, and providing clear, detailed, and consistent evidence (i.e., unaffected by trauma or stress).
Myths and stereotypes about IPV can undermine the fairness of trials. When judges, lawyers, or law enforcement rely on myths and stereotypes in their analysis, survivors face greater challenges in reporting, proving, and accessing legal remedies for IPV. If survivors can access the court, they are often retraumatized by intrusive and unnecessary questions based on myths and stereotypes. This not only puts survivors at ongoing risk of IPV, but also makes it harder for them to rebuild their lives after separation.
This intervention builds on Rise’s history of advocating for improved legal responses to family violence including our previous intervention with West Coast LEAF in Barendregt v Grebliunas, and our recent BC Court of Appeal case, KMN v SZM.
Brief case summary
At trial, Ms. Ahluwalia, a survivor of abuse and coercive control by her ex-husband, asked for tort compensation as part of her divorce claim. When they decided Ms. Ahluwalia’s case, the trial judge created a new tort of family violence that would be more accessible to survivors and more effective in compensating patterns of abuse. As a result, Ms. Ahluwalia was awarded $150,000 in damages.
In her decision, the trial judge stated:
“…existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse. These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize.”
On appeal, the Ontario Court of Appeal rejected the new tort. They said it was not needed, and that Ms. Ahluwalia could be compensated under the old torts. They applied the old torts and reduced her damages to $100,000.
The case is now before the Supreme Court of Canada to decide whether a tort of family violence is necessary and appropriate.
Tort law has often failed to adequately compensate survivors of family violence, especially women. This is because tort law was developed from a male perspective at a time when the legal system was controlled by men and interspousal immunity prevented women from suing their husbands in tort. It was therefore not structured to capture the harms that women and gender diverse people experiencing family violence face, including the violation of a survivors’ rights to security, substantive equality, dignity, and autonomy. In practice, few survivors of IPV bring tort claims against their abusers. For those who do, it is difficult to prove both the abuse itself and its harms. Even successful family violence tort claims tend to result in much lower compensation awards than tort claims involving violence by a stranger.
Myths and stereotypes about family violence played a key role in this case. At trial, Mr. Ahluwalia used myth-based reasoning to question Ms. Ahluwalia’s credibility. He claimed that she was not a believable victim because of her education level, her immigration history, and the timing of when she reported the abuse. He also claimed she was motivated by revenge and financial gain. On appeal, the Court of Appeal’s concerns about the potential misuse of the new tort echoed the common myth that women lie about abuse to manipulate the legal system.
You can read the full Supreme Court of Ontario’s decision here, and the full Ontario Court of Appeal decision here.
What is an Intervention?
An intervener is a non-party (someone who is not involved in the case) that has been permitted by the court to participate in the legal proceedings because they are able to provide the court with a perspective that goes beyond what the parties can offer themselves. In this case, Rise and West Coast LEAF have been granted the ability to provide the SCC with our expertise on family violence, and myths and stereotypes surrounding family violence. Rise’s expertise comes from our front-line work with clients and our extensive research (including 8 published reports) on family violence in family law. This intervention is part of our commitment to amplify our clients’ voices in places of power.
What are torts?
Torts are a legal tool people can use to sue for harm they have experienced. Tort law provides financial compensation for a person’s losses. Tort law does not cover all harmful things that may happen to someone. Some common torts that are common in cases of IPV are assault (threats of physical violence) and battery (unwanted physical contact).
What happens next…
The case will be heard at the SCC on February 11 and 12, 2025. Rise and West Coast LEAF are represented Monique Pongracic-Speier, KC of Ethos Law Group, Gita Keshava of Ethos Law Group, Kate Feeney of West Coast Leaf, and Rosanna Adams of Rise.