Civil Courts Introducing a New Intimate Partner Violence Tort: Coercive and Controlling Behaviour and the Potential Barriers to Victims for Access to Justice [ Part 2 ]
Author: Caitlin Damm
Introduction
The case Ahluwalia v Ahluwalia is significant when it comes to the courts recognizing coercive and controlling behaviours (CCB) in an intimate partner relationship.[i] This case creates a new intimate partner violence (IPV) tort addressing CCB and offers a remedy that focuses on the “injury to one’s dignity, autonomy, and equality.”[ii] Ahluwalia v Ahluwalia may have potential access-to-justice-benefits for survivors with the establishment of the new IPV tort. The potential positives are discussed in my previous blog titled, “Civil Courts Introducing a New Intimate Partner Violence Tort: Coercive and Controlling Behaviour and the Potential Benefits to Victims for Access to Justice.”[iii] Even with potential benefits the new IPV tort brings, the tort might not eliminate potential barriers to victim's in regard to access to justice.
Survivors who experience CCB by an intimate partner may find themselves needing to seek help and safety from the court system.[iv] Individuals may not know the potential risks of seeking intervention from the court system that may lead to further CCB if the intimate partner misuses the court system.[v] Litigation abuse can cause substantial harm to an individual in the court system. Even worse, it can be difficult in an adversarial court system to acknowledge and define litigation abuse.[vi] Also, there can be challenges for a successful party in civil court to enforce an award of damages, particularly where the judgment debtor has limited assets or refuses to pay voluntarily.[vii] Therefore, it is important to understand the process of collecting damages after a court decision, and how this can be a barrier to access to justice.
This discussion will examine several potential barriers and concerns arising from the new IPV tort: first, the fear of the law being used as litigation abuse by the perpetrator; second, barriers associated with collecting damages; third, potential concerns with finding legal representation and barriers to court outcomes; fourth, possible ways the system is not equipped to prevent litigation abuse and ideas to prevent further abuse through the judicial system; lastly, whether the tort provides a direct and adequate civil remedy for harms experienced by children.
Concerns Regarding Access to Justice for Victims and the New IPV Tort
Litigation Abuse
Although the new tort offers survivors an important remedy, its availability does not eliminate the risk that an abusive partner will commence retaliatory claims, counterclaims, or related proceedings. More recently, litigation abuse is being recognized as a pattern of conduct involving the misuse of the Family Court process.[viii] What can litigation abuse look like? This can be a “pattern of conduct that is abusive and causes unnecessary stress and expense to the other party.”[ix] These acts can include, but are not limited to “lack of proper disclosure; seeking unjustified adjournments; making unfounded or irrelevant claims of misconduct by the other party or a professional involved in the case … and undertaking repeated or vexatious appeals or reviews.”[x]
If a vexatious litigant starts court proceedings, a victim may have no choice but to respond and go through the legal processes before the system may recognize the abuse.[xi] For example, the case A.N.H. v L.D.G [2022] does not identify CCB but illustrates the persistence and cross-jurisdictional character that abusive litigation can sometimes assume. The plaintiff was found to be a vexatious litigant, after having twenty published decisions.[xii] The applications started in 2009, and the court proceedings continued until 2022.[xiii] Even after the court found the plaintiff to be a vexatious litigant, the plaintiff filed a civil suit in another jurisdiction, forcing the defendant to proceed with a jurisdiction hearing in A.N.H. v. L.D.B [2023].[xiv] Although CCB is not identified in the case, it shows how vexatious litigation can continue for an extended period of time.
Enforcing a Damages Judgment
Concerns regarding the collecting of judgment damages in civil court arise even where a survivor establishes liability and obtains damages. The judgment may nevertheless be difficult to enforce if the defendant does not pay voluntarily or has few realizable assets.[xv]
If the debtor does not pay, enforcing the judgment may require further court intervention. For example, in Ontario, where the case Ahluwalia v Ahluwalia was heard, the debtor would have to follow Rule 60 which allows the creditor to apply to the courts for (1) orders for payment or recovery of money; (2) orders for possession of land (which includes real property such as a condominium); (3) orders for recovery of personal property (such as jewelry or furniture); and (4) orders to do or abstain from doing any act.[xvi]
Additionally, the judgment creditor may need to take further enforcement steps, such as obtaining a writ of seizure and sale, pursuing garnishment, or seeking the appointment of a receiver.[xvii] Hence, the new tort offers survivors a means of obtaining monetary relief, but does not guarantee the recovery of the damages awarded.
Legal Representation and Barriers to Court Outcomes
Barriers may arise if the victim cannot afford a lawyer to represent them in civil court. In civil cases, counsel may consider collectability, evidentiary complexity, disbursements, and the expected duration of the proceeding when deciding whether to represent a case.[xviii] Collecting judgment damages may be onerous, lengthy, and expensive for a victim. If the victim has limited financial resources, finding a lawyer to represent them may not be a viable option. For example, women who are leaving a coercive and controlling relationship are “more likely to be financially insecure at the end of the relationship.”[xix] This may create an unfair dynamic in an adversarial court system, as women are “more likely to be coerced into unfavourable and potentially unsafe settlements because they cannot afford to obtain proper representation and take a case to trial”.[xx]
Integration of Criminal and Family Law Proceedings
Litigation abuse may be a concern following the creation of the new IPV tort. For example, hearings may arise from relationship breakdown, criminal charges, parenting disputes, support proceedings, and the civil claim, creating the possibility that an abusive party could exploit these processes. This can occur when an intimate partner uses the court system “to coerce, control, harass, undermine and dominate” their partners.[xxi] This can be exhausting for a victim who must attend and participate in multiple hearings.
This may be a concern in Manitoba because the criminal and family proceedings do not operate in conjunction with each other, with cases instead proceeding separately rather than being overseen by one judge until the end. [xxii] In Toronto, these proceedings can occur in the Integrated Domestic Violence Court (IDVC), where one judge oversees both matters at the same time.[xxiii]
There are limitations, as the IDVC considers eligibility requirements, and the current practice direction concerns qualifying summary-conviction IPV charges and related proceedings under the Children’s Law Reform Act or Family Law Act. [xxiv] The IDVC does not provide a general forum for divorce, property division, or an independent tort action. [xxv]The court may therefore serve as an example of coordinated case management. For example, coordinated case management may reduce duplication, inconsistent orders, repeated storytelling, and the number of appearances. [xxvi] The Ontario Court of Justice described the intended benefits as improved coordination, reduced delay, better information, and enhanced safety and accountability. [xxvii] Of course, the idea of integration of criminal and family proceedings may not prevent all forms of litigation abuse.
Civil Remedy for Harms Experienced by Children
What does this mean for access to justice for children, and how might the tort limit protection for children? The Ontario Bar Association states that the existing tort recognizing CCB still leaves barriers to access to justice for children who are experiencing family violence.[xxviii] For example, there are concerns about protecting children from IPV and CCB in relation to Ahluwalia v Ahluwalia that, “[a] broader tort of family violence could be better positioned to address the concerns highlighted by the JFCY, but the SCC was not compelled to ‘impose liability on family members more broadly’ in its decision.”[xxix] Therefore, the tort could have provided a broader context of liability extending to harm experienced by children, rather than just defining the tort under “intimate partner violence.”[xxx]
After all, children can also be harmed by CCB within a family where intimate partner violence is taking place. The narrower tort nevertheless raises the policy question of whether Canadian private law provides an adequate remedy for children who experience serious psychological or dignitary harm from coercive control within the family, particularly considering Article 19(1) of the Convention on the Rights of the Child, which protects children from all forms of abuse.[xxxi] Perhaps other cases in the future may establish an extension of the tort to children.
Conclusion
Concerns regarding access to justice for victims in relation to damages awarded in a judgment demonstrate that a judgment does not guarantee actual recovery, even if the abusive individual is found liable. Litigation abuse arising from the new IPV tort is a concern because an abuser may use multiple hearings in the same jurisdiction or file proceedings in other jurisdictions to continue CCB. Victims may have difficulty finding legal representation and pursuing or proving a claim for CCB abuse if they are unable to afford a trial. Integration of criminal and family court proceedings may reduce duplication and opportunities for procedural abuse by having one judge oversees both matters. The new tort raises concerns about the potential liability of intimate partners who may engage in CCB or use it to harm their children.
Endnotes:
[i] Ahluwalia v Ahluwalia, 2026 SCC 16 at para 1 [Ahluwalia], online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/21505/1/document.do>.
[ii] Ibid at para 169.
[iii] Caitlin Damm, “Civil Courts Introducing a New Intimate Partner Violence Tort: Coercive and Controlling Behaviour and the Potential Benefits to Victims for Access to Justice (Part 1)” (16 September 2026).
[iv] Ellen R. Gutowski & Lisa A. Goodman, “Coercive Control in the Courtroom: The Legal Abuse Scale (LAS)” (2023) 38:3 J of Family Violence 527.
[v] Ibid.
[vi] Nicholas Bala, Ellen Benedetti & Sydney Franzmann, “Exploring litigation abuse in Ontario: An analysis of costs decisions” (2024) 62:4 Family Court Rev 936 at 938.
[vii] Noel Semple, “The Cost of Seeking Civil Justice in Canada” (2016) 93:3 Canadian Bar Rev 639 at 648.
[viii] Bala, Benedetti & Franzmann, supra note vi at 938.
[ix] Ibid.
[x] Ibid.
[xi] Ahluwalia, supra i at para 193, 194. Also, potentially “an overinclusive new tort that captures acts of resistance risks exposing victims of intimate partner violence to retaliatory claims by perpetrators and may inhibit victims of coercive control from coming forward, thereby raising barriers of access to justice.” Therefore, “emphasized in Levely v Levely, 2013 ONSC 1026, at para. 12, that judges must ensure legal proceedings “are not hijacked by a party and transformed into a process for further victimizing the other party.”
[xii] A.N.H. v. L.D.G., 2022 BCCA 155, at para 4–5, online: https://canlii.ca/t/jnxv4.
[xiii] Ibid at para 5.
[xiv] A.N.H. v L.D.B., 2023 SKKB 120, at para 3, online: https://canlii.ca/t/jz53h.
[xv] Stephen G. Gilles, “The Judgment-Proof Society” (2006) 63:2 Washington and Lee L Rev 603 at 606, the article mentions that individuals can be “judgment proof” meaning that, they lack sufficient assets to pay the judgment in full.
[xvi] Kathryn J Manning et al, “Rules of Civil Procedure Chapters, Orders, Rule 60.01-.10 - Enforcement of Orders in Civil Procedure and Practice in Ontario, Noel Semple (ed.), Canadian Legal Information Institute, 2nd ed, 2022 CanLIIDocs 1048, https://canlii.ca/t/7hzzs at p 3. Also, “Enforcement of an order to recover or pay money may involve: (a) Instructing the Sheriff to seize and/or sell the debtor’s assets, including personal and real property; (b) Garnishing of wages, bank accounts and other assets; (c) Appointing a receiver; or (d) Issuing a writ of sequestration.
[xvii] Ibid at p 21.
[xviii] Gilles, supra note xv at 606. The author states, “[m]any tort claims are not large enough to be worth litigating in the first place.” See also the Law Society of Ontario, “Contingency fees agreements… 18.What is a contingency fee agreement” (last updated 8 April 2022), online: <lso.ca/lawyers/practice-supports-and-resources/topics/managing-money/fees-and-disbursements/contingency-fees/frequently-asked-questions-about-contingency-fees#18-what-is-a-contingency-fee-agreement--9>. Like in many provinces, including Manitoba, lawyers can agree to represent a client in a civil case under a “contingency fee agreement, [which] is a retainer agreement under which payment is dependent on the successful disposition or completion of a client’s matter”.
[xix] Bala, Benedetti & Franzmann, supra note vi at 942.
[xx] Ibid.
[xxi] Ahluwalia, supra note i at para 194. NAWL, an intervener in the court decision, speaks about issues that may arise with the new tort stating it can “be weaponized against victims of family violence”. Also, that the court needs to be able to “identify false claims brought by the abuser”.
[xxii] Government of Canada, “Programming Responses for Intimate Partner Violence” (last modified 20 January 2023), online: <justice.gc.ca/eng/rp-pr/jr/ipv-vpi/p4.html> [perma.cc/G899-GXQJ]. Manitoba has a specialized domestic violence court that does not intertwine criminal and family court proceedings together but allows an opportunity for first time offenders that are low risk to enter a diversion program.
[xxiii] Ontario Court of Justice, “Integrated Domestic Violence Court” (last visited 12 August 2026) online: <ontariocourts.ca/ocj/family-court/integrated-domestic-violence-court/#:~:text=Criminal-,Integrated%20Domestic%20Violence%20Court,separation%20at%20the%20same%20time> [perma.cc/WG9K-2GL9]. Ontario’s “integrated Domestic Violence Court (or “IDVC”) is a specialized court which helps families going through a criminal domestic abuse charge and a family separation at the same time”. What happens is “[u]sually, in these types of situations, two courts are involved: the criminal domestic abuse charge is heard in the criminal court by a criminal judge, and the family separation proceeding is heard in the family court by a family judge”. The specialized court has parties “attend at one court (IDVC), with one judge (an IDVC judge) that hears both these matters at the same time”.
[xxiv] Ibid.
[xxv] Ibid.
[xxvi] Ibid.
[xxvii] Ibid.
[xxviii] Whitney Evans, “Ahluwalia from a Children’s Rights Perspective” (22 June 2026), online (Ontario Bar Association): <oba.org/ahluwalia-from-a-children-s-rights-perspective/> [perma.cc/TJ4T-ZPZQ].
[xxix] Ibid.
[xxx] Ibid.
[xxxi] Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). Article 19(1): “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”.
