EP#213 | CAN WORDS BE ABUSE?

Added: 2026-05-25

[00:00:03]Well, guys.

[00:00:05]Well, this is like thick. It's long. Another gem from the Supreme Court of Canada.

[00:00:12]>> Yeah, hot off the presses.

[00:00:14]>> I think it's important. Others may not um because they might say whether you call it a new tort or not, it's it's in existence. But so we're talking about the recent Supreme Court of Canada decision on that came down May 15th, 2026.

[00:00:30]So it's Ahluwalia v. Ahluwalia. This is a family court proceeding.

[00:00:36]It will have um some implications for criminal law. So that's why we're going to refer to it, but there's always this cross-section between family law, tort law, and criminal law.

[00:00:47]So that's why we're raising it. Uh citation is the Supreme Court citation is 2026 SCC 16 41061.

[00:00:56]And it is uh not a majority decision.

[00:01:01]Um Not a unanimous decision.

[00:01:03]>> It's not a unanimous decision. Sorry, it's not a unanimous decision. Um So there is a dissent, which we'll talk about. But let me just lay out the facts a bit, and then I'll let you guys run, okay? And then I want to talk about the dissent a little bit. But so this is what started out as not an atypical family law case that we're we're you know, used to.

[00:01:26]Um this was a family case where within the family pleadings um the uh wife um raised torts, so private law complaints about his behavior.

[00:01:42]The husband had abused the wife over their entire 16-year marriage.

[00:01:46]The abusive conduct was sustained and varied in character. It included physical assaults, humiliation, intimidation, and conduct intending to inflict emotional distress.

[00:01:56]It extended to isolation of the wife from family members, mistreatment as a means of pressure for sex and financial control.

[00:02:04]The husband's conduct had coerced and controlled the wife in order to break her will and condition her to obey him from the beginning of their marriage.

[00:02:14]The husband himself initiated the divorce proceedings. The wife agreed to divorce and sought sole decision-making authority for the children, child support, spousal support, property equalization and the sale of the matrimonial home.

[00:02:27]She also requested an order for damages for the abuse she suffered at the hands of the husband.

[00:02:32]So, in addition to the family law remedies, the wife was awarded 50,000 in compensatory damages, 50,000 aggravated damages, and 50,000 punitive damages at trial for what the trial judge characterized as the novel tort of family violence.

[00:02:48]The trial judge would have awarded in the alternative the same amount for the included torts of assault, and you would have battery and assault, and intentional infliction of emotional distress. I just want to pause for 1 second.

[00:03:03]The wife at in her pleadings in family court did not ask nor sought any new remedy or any new tort to be created of family violence. She pleaded the traditional torts of battery, assault, and emotional infliction of emotional distress.

[00:03:23]That's what she had pleaded originally.

[00:03:25]But the judge on their own initiative created this new tort and sought submissions from counsel at the end of the trial on that.

[00:03:33]But the judge also would have awarded in the alternative the same amount for the included torts of assault and intentional infliction of emotional distress. I just want to be clear on that. So, the trial judge on their own initiative thought about creating a new tort for family violence.

[00:03:51]Ordered damages, but in the exact same amount, ordered the same damages for the traditional uh tort torts. Mhm.

[00:04:00]The court of appeal, which this is out of BC, um the husband conceded that his abusive conduct gave rise to liability under the existing torts.

[00:04:09]He nevertheless successfully obtained a reduction of the damages awarded at trial by 50,000, the amount of the trial judge had awarded as punitive damages.

[00:04:18]While the court of appeal recognized family violence as a pervasive social problem, it made a declaration that no new tort of domestic violence or course of control should be recognized. In its view, the trial judge erred in deciding the existing torts were not flexible enough to encompass the pattern of abuse at issue, and that a new tort of family violence was required.

[00:04:40]That got appealed to the um Supreme Court of Canada.

[00:04:45]>> And I am correct in saying this as I frame it for a moment.

[00:04:50]The up The issue on appeal was a very nar- narrow issue as to whether the law should recognize a new tort of family violence in the circumstances of this case. That was the only issue. Mhm.

[00:05:04]And again, up until the appeal up until and including the appeal, neither party, including the wife, sought for the court to find a tort of family violence. Yeah, they felt it could be covered under the existing. Yes, and there's an excellent analysis in the dissent by Justice Jamal, which I will go into a little bit because he makes some very important points, whether you agree with this or not, that actually I think um well articulate problems that may uh occur as a result of this new um new tort in the way it was laid out by the majority in in uh Supreme Court, but I'm going to leave it there. So, I'm going to pass over to you guys to talk.

[00:05:47]I've set it up. You have. The The ball's The ball's at midcourt. I mean, at the core of this decision is that, you know, the tort of family violence ended up being called coercive control. Right.

[00:05:58]That's the the majority of this decision deals with the concept of what's called coercive control.

[00:06:05]And so, one of one of the issues with creating this new tort is making sure that um the public understands what is now um going to be subject to to a tort and potentially the crossover into new legislation being proposed by Parliament, which we've talked about Bill C-16 before, but one aspect mixed in with a bunch of others is that they want to create a new crime of coercive control. Mhm. And so, the definition of what that means and what the limit is on on how you can describe what it is being uh abusive as opposed to just ongoing arguments and and disagreements and the falling apart of a relationship.

[00:06:53]And at what point it it meets the threshold to become a crime, I think a a lot of the language in here is going to complicate that the ability to clearly define it because it's important that the public know if what they're doing is a crime.

[00:07:08]Okay, here. You raised one point at the beginning because you said the tort of family violence became really synonymous with coercive control even though it was pleaded physical violence including sexual violence, right? So, that's interesting. So, there's two aspects to the majority decision. There's two lead um writers on the majority decision that don't necessarily come to the exact same definition of the tort, but regardless, the court does say the existent the existing torts fail to remedy the specific wrong to dignity, autonomy, and equality that intimate partner violence creates. While certain existing torts may capture discrete incidents or even patterns, which they do, of inference with one's physical, psychological, or emotional integrity, they do not account for the wider and qualitatively different consequences of course of control and intimate partnership partnerships brought about by single acts of violence or by patterns of conduct over time.

[00:08:10]Individual incidents of physical abuse can cause harm as they would to anyone, but within an intimate partner relationship, they also serve to subordinate the partner. Existing torts do not recognize the equality norm that is transgressed when course of control is the core misconduct in an intimate partner uh partnership and where the subordination is the core injury. I guess that's the best way to describe it. It's not a specific series of discrete incidents. It's course of conduct. Well, but I'm unclear. I'll leave it aside. You guys will do the analysis on that, but course of control really has to be a pattern. In the criminal law, it's going to be a pattern of behavior.

[00:08:53]>> Right.

[00:08:53]But Diana made a very good point here, which I don't think we should gloss over, is the Supreme Court made it very clear that the existing torts do not capture sort of the qualitative nature of the injury sustained in course of control.

[00:09:07]They may be right about that, but the dissent disagrees. I agree with the dissent. I don't think this was necessary, but the offshoot of this, that hopefully you'll talk about, is I think this will cause some difficulty for assessing exactly what is necessary to prove this tort at trial in the civil context, and will have a trickle effect into how we define course of control in the criminal context. Yeah, I mean, like, does somebody um finding themselves becoming depressed, does that produce >> equal course of control, yeah.

[00:09:39]>> sort of course of control or does There's a lot of reasons people may become depressed for cause, like, you know, losing a job or a family member or something like that. There's a lot of natural life events and relationships gone wrong where a relationship ends that you had a lot of hopes and expectations for. end up being stuck in the relationship, but that doesn't necessarily mean coercive control is being exerted by the partner. Right. So, you know, and and that's one of the problems is lower courts cuz all all law should I think be applied equally no matter what province you're in as much as possible.

[00:10:13]>> gender. Or whatever gender you are.

[00:10:15]We'll get to that issue.

[00:10:16]>> to that issue, yeah. Um so, so guidance, you know, especially when there's a new tort being created, it's not a in the criminal code at this point, right? But, um you know, all of these descriptions, like I said, it's it's going to apply cuz we are doomed to have I say doomed to have coercive control in the criminal code at some point.

[00:10:34]>> happening, yeah. Well, we talked about this earlier. Remember the the sociologist Evan Stark who I think first kind of described what what it amounts to, right? As he says, it's it's a course of conduct, not a series of incidents.

[00:10:51]It describes how abusers trap victims through isolation, degradation, exploitation, and rule enforcement, even if there's no violence. So, at least there's some direction in terms of the what that word means.

[00:11:04]>> Stark's repeatedly cited in the decision here as well, but in 2007, Stark actually said, "I have never had a case that involved a female perpetrator of coercive control, and no such cases are documented in the literature."

[00:11:20]And that's something even though it's recognized in this decision that men can be the victim of it. There's a lot of language about it being a gendered problem, focus on, you know, feminist perspectives of, you know, substantive equality and their subjective experiences of relationships that may be different, you know, and and need special attention.

[00:11:42]And, you know, in Bill C-61 as well, coercive control is specifically mentioned under the >> C-16, I think. Yeah, sorry, 16.

[00:11:50]>> Okay. Do we get a whole bunch new ones there? Yeah, we got a bunch of new ones, but hopefully there won't be They put enough in here, it should probably be five separate bills anyways. But, um it specifically mentioned under the title of femicide as well, which of course men cannot be victims of femicide. Yeah, I suspect that's not going to be in the Bill C-16, but um so I I think pause for a moment. Um we've had a couple of cases ourselves where our male clients Oh yeah. were victims of coercive control and in one of them we brought psychiatric evidence with a whole slew of real demonstrative evidence and it was essentially established. So, there's no doubt that um intimate partner violence um uh women are at higher numbers uh suffering from this type of violence, but it does not mean that men do not suffer from coercive control or other types of intimate partner violence. So, And men >> don't know if it's necessarily helpful to the argument to for him or anyone else to exclude men from the uh discussion, but um I mean, clearly we know that um the individuals who are most acutely impacted by this are are women.

[00:13:09]But, this underscores what the court was doing here.

[00:13:14]And and the court Sorry to just keep going this, but it's not just the physical and psychological injury is aggravated by intimate partnership setting. The injury is qualitatively different because of the intimate partnership setting itself. Although existing torts capture the conduct that may in part overlap with an intimate partner violence, plaintiffs must adduce evidence of the abuse they experienced to fit into existing legal categories only to obtain an incomplete remedy.

[00:13:46]Right. So, I I just I need to pause here for a second.

[00:13:51]What the Supreme Court the majority Supreme Court of Canada wanted to do was recognize a specific tort related to intimate partner um course of control or harm.

[00:14:04]Keep in mind, Bill C-16 is going to change sections of the assault sections in the Criminal Code so that it's intimate partner assault or whatever it is. I don't have it in front of me right now. Mhm. But do you remember that? It's in there. So, you're going to take something that's assault now that we all clearly understand and then cases are defined once they're within an intimate partner relationship to be domestic in nature and it goes to a specific team and are prosecuted in a specific way.

[00:14:33]If found guilty, a person is sentenced according to the aggravating um factors that are outlined in the Criminal Code. So, if violence occurs within an intimate partnership, then it's aggravating and there's a heightened um consequence for that. So, there would be heightened penalty.

[00:14:50]But what we're seeing, there's a parallel here. Mhm. Right? So, the parallel is we're going to recognize a tort that you can use in family law Mhm. and at large on its own specific to family violence.

[00:15:07]And the parallel is in the criminal system, you're going to see the assaults subcategorized now. Diff- Yeah. To specifically label intimate partner assault.

[00:15:17]And they're going to do that also with um murder and with manslaughter if it's an intimate partner, it will cause a higher sentence. But, it's going to be um set out in the criminal code. So, there is a very clear parallel here. And I think very clearly the Supreme Court, the majority, is signaling to the government Yeah, yeah. Move forward with Bill C-16.

[00:15:43]>> up.

[00:15:44]>> Yeah.

[00:15:44]Catch up.

[00:15:45]>> So, you kept in mind that like coercive control includes a whole bunch of things very very different in terms of the psychological aspects. Very different from like an assault or a sexual assault.

[00:15:55]>> It can include fear of future harm, right? We were talking about that earlier. Um but it also includes things like financial abuse, right? And like I've mentioned before when we talked about coercive control proposals that um to a large extent feminists have actually been against that legislation cuz they were worried that women would be caught up in it. And so, like, you know, financial control could amount to a um a female spouse or partner who's constantly overspending and keeping the person in debt. uh in debt. Right.

[00:16:26]>> Right. Um you know, one of the things they describe to you is cutting off from friends, right? There's a number of factors that are listed in this decision. Cutting them off from friends and family.

[00:16:35]>> Isolation, yeah.

[00:16:36]>> Well, quite often it's the women who do that. They don't want the guys going out with their male friends.

[00:16:40]Hanging out with their side of the family.

[00:16:42]>> both ways. So, it can capture it.

[00:16:44]>> it absolutely can go both ways. And and this can capture a whole bunch of behavior that's um that isn't currently Captured by the new law, yeah.

[00:16:53]>> And can be defined in a number of different ways in terms of like what is financial control? People wouldn't think of it off the top of your head. You're thinking oh, well, somebody who doesn't have access to a shared account >> Right. and has to wait for them to be doled out money.

[00:17:06]>> yeah. Yeah. And um but it can cover a wide range of behaviors like overspending. Of course. And at what point like again, like where do you set that threshold? But that in and of itself, like maybe I'm giving too much allowance, but when we look at the draft section in Bill C-16, so it'll create a new offense, 264.01 sub 1. Everyone commits an offense who engages in a pattern of course of a controlling conduct referred to in subsection 2 with intent to cause their intimate partner to believe that the intimate partner's safety is threatened or knowing that or being reckless as to whether the pattern of course of controlling conduct would cause their intimate partner to believe that the intimate partner's safety is threatened.

[00:17:48]Pattern of course of a controlling conduct. A pattern of course of a controlling conduct consists of any combination or reported instances of any of the following.

[00:18:00]Using, attempting to use, or threaten the use of violence against the intimate partner, any person under the age, and others.

[00:18:06]So, they will go into I think at least a series of 1 2 3. Like there's there's a lot of subsections >> Criteria, yeah.

[00:18:21]>> Yeah, coercive or attempting coerce the intimate partner to engage in sexual activity, engaging in any other conduct including conduct listed in any of the following subsections, controlling or attempting control um um monitoring the intimate partner's locations, controlling or attempting control the manner which the partner cares for any person, controlling or attempting control any matter related to intimate partner's employment or education, controlling or attempting control the intimate partner's finances or other property. So, I think there's a fair amount that I think will have to be established, but will it be sufficient to have one of these with a repeat Yeah, how many? How many will just >> Let's take Let's take monitoring um you know, the person's movements and stuff, right? So, I actually do happen to know of a case and the person thankfully was convicted.

[00:19:16]Um but uh put tape over the door Mhm. so that uh he'd know if his partner left the house without permission. Okay. And that's extreme, right? But then what about the person who's constantly texting you all day saying, "Where are you? When are you When are you going to come home?" Or yeah. Yeah, or you share air tags or something. Yeah, it could be air tags, but even people like a lot of cases we work on, especially younger people, they're texting so often all day long that you hardly want you wonder how they get anything else done, you know? But um so could those messages asking where they are throughout the day, could that be seen as monitoring the person's movements?

[00:19:51]Potentially. Yeah, I mean I I would, you know, off the cuff I would say no.

[00:19:56]That in and of itself is not sufficient.

[00:19:59]Um you know, I think where you have something unusual that somebody puts tape on the door on a regular and consistent basis to see if your partner leaves the house, that's That's pretty >> a creep creep level to it.

[00:20:10]>> That was extreme. And there's a whole bunch of other extreme sort of controlling nature, but I think within this framework there will have to be a defined pattern of conduct that meets an appropriate threshold. And of course, at least in the criminal context, we have proof beyond a reasonable doubt as opposed to the civil context, the balance of probabilities.

[00:20:29]>> probabilities, yeah.

[00:20:31]>> to balance of probability.

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[00:21:10]Well, um there's also a concern I think expressed in here on on one level in this current case about um that uh the harm should be objective, not subjective. Or there was there's a proposal out there that that happened as well.

[00:21:25]>> Mhm. Whether it was mentioned in this one or a previous case that we looked at. And uh so then that really gets to a point where a person may say, "Well, at the time it didn't feel all that oppressive to me.

[00:21:36]At the time I thought I was in a good relationship."

[00:21:38]>> And retrospect, looking back.

[00:21:39]>> Looking back, yeah, that's going to be a danger. And uh and again there's that concern about a person being able to know whether or not they're breaking the law. So, let me just go back to this decision for a moment. So, the dissent is of Côté, Rowe, and Jamal.

[00:21:55]And they were written by um Justice Jamal.

[00:21:59]And it's it's very good because at the beginning he recognizes the um prevalence of intimate partner violence.

[00:22:07]He quotes in 2024 alone over 128,000 individual uh victims of such violence were uh impacted. Women and girls were affected at rates three and a half times higher than men and boys.

[00:22:22]And the courts have long recognized women in intimate partner relationships face disproportionate vulnerability that creates lived experiences of fear, coercion, and trauma.

[00:22:32]The epidemic of intimate partner violence in Canada demands a response from the justice system that's both compassionate and principled. As part of that response, intimate partner violence is actionable in tort at common law and has been for a long time.

[00:22:45]>> Forever, yeah. Courts have provided meaningful remedies for victims by adapting, applying torts like assault, battery, and intentional infliction of emotional distress, and by taking a flexible approach to awarding aggravated damages. The evolution of the common law has accelerated in recent years, particularly as more um women have joined the judiciary.

[00:23:08]As this evolution continues, courts must remain vigilant in shedding gender stereotypes from the law and ensuring that plaintiffs receive a just remedy for their injuries.

[00:23:18]So, he then goes on to do a very careful analysis of why the majority is in the wrong.

[00:23:27]And I think he is 100 uh and percent dead on.

[00:23:32]Um and he noted that the one single issue before the Supreme Court was whether a new tort of family law should be created.

[00:23:40]Um and then he he went over the uh the judicial history here and that the common law evolves incrementally through concrete disputes, not through abstract law reform. As a matter of judicial restraint, courts generally avoid deciding issues that have no practical effect on the parties before them.

[00:23:59]Restraint is particularly important when considering the recognition of a wholly new tort, which, as previously unrecognized ground of liability under private law, is inherently a significant change in the common law. Courts should therefore decline to create a new tort when existing torts already fully compensate the plaintiff. What he's saying is that the plaintiff in this case was fully compensated by the award of damages. And the award of damages before the Supreme Court was not an appealable issue.

[00:24:26]>> Right. Yeah.

[00:24:28]It really wasn't before them that way.

[00:24:30]Right. But when they created this new tort, they interfered with the trial judge's determination of damages. Mhm.

[00:24:36]And gave it under the new tort as opposed to the ones that had been awarded.

[00:24:42]Um so It it it's a Sorry, go on. Go ahead.

[00:24:48]Well, he goes on to say uh a little bit later though, even if this were an appropriate case in which to recognize a new tort, I would hesitate to recognize either of the new torts proposed by uh his colleagues, the other members of the court.

[00:25:01]>> there's there's actually two variations of this tort proposed by the majority.

[00:25:05]In my respectful view, lower courts will have great difficulty applying the unprecedented elements of the the new torts proposed that were created. This may erect barriers for access to justice and complicate the ability of victims of intimate partner violence to receive just compensation.

[00:25:23]Uh applying the existing torts flexibly, as it is now routinely done by our lower courts, provides uh provides a clearer and simpler basis for compensation in cases like the present. So, not only is it not the right case, but the way they've gone about doing it in Justice Jamal's mind that will all three All three All three dissented. dissented is the um the practicality of it and the inability to uh apply the definitions the way that they're given. Well, it's very It's going to be very confusing. Well, yeah, look look, coercive control creates a generalized fear of future harm, which is different from imminent harm. How are you going to quantify that? Well, there's a whole like first of all, didn't seem to be much of an issue in this case, but you could have, you know, a full litigation on the veracity of the allegations. How do you make a finding depending upon the definition and what are the elements in the tort? And then, if you do make a finding of liability, how do you assess damages in that regard? And I think the important point of what Justice Jamal was writing is that um courts generally decline to decide an issue that has no impact on a court's order. So, in this particular case, again, it had no impact whatsoever on the damages she received, and the damages she received were all in accordance with traditional torts with very clear elements, with very clear case law. And since the Court of Appeal decision on Alawalia in BC, there have been in there was a resurgence actually of the use of these torts of assault battery and intentional infliction of emotional harm.

[00:27:01]Um And so those are all successful cases.

[00:27:06]And they make sense. So there was no I mean I you know Other people can argue >> I just realized that I said earlier about subjective fear versus objective fear. That was actually from Bill C-16 criminal harassment changes.

[00:27:20]>> To objective assessment, yeah.

[00:27:21]>> Yeah. And all these things I I find they're becoming cumulative. So it's just like we'll decide when we think you've been abused and you know >> you know. And you know if if that becomes the case then certainly a person who's accused of it is going to have trouble recognizing what they've done has crossed a line. Right.

[00:27:41]>> How do I know my behavior has crossed the line, yeah? I mean there's all kinds of problems with with everyone's relationship that you encounter from time to time and it's like it is just part of you know living with somebody and and communicating. I I to tell you the truth reading this one and they have sections where they try to define what is an intimate relationship.

[00:28:01]>> Right. You know, in the end it kind of makes sense but it was so convoluted.

[00:28:05]>> Right. It was like if you had if it takes you that long just to explain what an intimate partnership is then I think we're in trouble.

[00:28:14]A lot of vagueness, yeah.

[00:28:15]>> You don't have to be you know it is interesting cuz this came up in family court but they're saying you don't actually have to be cohabitating even.

[00:28:22]And it was like so that opens up the tort beyond family court cuz you wouldn't be you know >> Well beyond cohabitation.

[00:28:29]>> Go in the family court if you're if you're not cohabitating, right?

[00:28:32]>> Right. But so yeah like we're saying it could be used outside of the family court context as well. That this to me indicates that it's intended to be used for people just start who are just in intimate relationships. I just think it's important to emphasize what the descent writes.

[00:28:49]The proposed new torts risk complicating recovery for intimate partner violence.

[00:28:54]And I'm worried about how this will translate into criminal law, but we probably we do a fairly good job, I think, of down the road, um, you know, really articulating what the elements are. But he notes here, "Even if it were appropriate to recognize a new tort in this case, my respectful view uh, each of my colleagues have a complex and unprecedented formulations to the proposed new torts, which risk complicating the path to recovery for victims of intimate partner violence and inhibiting access to justice.

[00:29:26]This militates against the recognition of these proposed torts."

[00:29:30]Uh, in contrast, sorry, I shouldn't have I shouldn't have started reading there, but he says these new torts risk creating considerable uncertainty for litigants and courts. And he notes that there's not a lot of guidance that is offered in how to articulate the tort.

[00:29:44]And he also notes that one of his colleagues, Kara Castanas, would recognize a different new tort of intimate partner violence. Under this tort, it would be necessary to show uh, that abusive conduct amounts to course of control. Rather, sorry, it would not be necessary to show that abusive conduct amounts to course of control. Rather, it would be enough to show either abusive conduct that amounts to course of control or any act or threat of violence in an intimate partner relationship that causes physical or psychological harm. She leaves open the possibility that this tort could capture non-violent wrongdoing falling short of course of control. Mhm. That's pretty broad, and that >> It is, yeah. [clears throat] I think there's a lot of focus on, um, how they define coercion, which is can be kind of ambiguous, and less and less not enough focus on the control aspect. Right. Like, you know, what does it mean to be controlled, and how do you determine when the person is making a choice versus when they're being forced to do something?

[00:30:42]Cuz a lot of people stay in relationships that that they they believe are over and they shouldn't really stay in the relationship, yet they choose to stay for reasons that don't have to do with abuse.

[00:30:51]And um so I I I kind of worry when people's ability to be and they worry about autonomy in here. Well, people should have, you know, the autonomy to choose what relationships they want to be in and not be told Right. that their relationship is not uh is not legal in some way, you know.

[00:31:12]Cuz it's really if you're saying that that you're being uh abused and it's a crime, and the person staying in the relationship, they're telling you that your relationship isn't legal.

[00:31:20]And yeah, yeah, well, put it in a blunt way.

[00:31:23]And that's like, you know, it goes back to uh how how much can the government insert themselves into the bedrooms of the nation, you know.

[00:31:31]Right.

[00:31:33]I don't know. This is, you know, we've only we've only had this in our hands for a couple of days and and >> a very lengthy document. And we're just coming off of a long weekend, so it's a lot to dissect.

[00:31:44]>> Yeah, it's a lot to go through.

[00:31:45]Um but I just have to say paragraph 390.

[00:31:49]By contrast, my colleagues' descriptions of the elements of this these new torts, which will be the only meaningful guidance for litigants given the lack of foundation existing law, risk inconsistent and unpredictable applications. For example, outside familiar scenarios already compensable under the existing torts, it is not clear what precise behavior would make out course of control.

[00:32:14]The suggestions that mere dysfunction or relationships marked by imbalance are not sufficient to make out the new tort do not assist in identifying the threshold for actionable conduct. That makes sense. Busy trial judges and self-represented family law litigants you know, will have challenges with respect to how to address it. And there's a whole lot of social science stuff that they can rely on. It's Good luck with evidentiary foundations.

[00:32:41]>> [sighs] >> Especially for self-reps in family court, it's going to be a nightmare.

[00:32:47]Uh like I mentioned before, too, it's like if somebody becomes depressed, well, they can decide that's because of the something in the relationship, but it could be for another reason. Of course. You know, he raises another good point at paragraph 391. I also observe that since the objective test is focused on a reasonable person's evaluation of the defendant's conduct, recovery is allowed even where the plaintiff was not actually coerced, coercively controlled, and when the plaintiff suffered no consequential harm.

[00:33:17]The focus is no longer on the harm suffered by the plaintiff, but instead how a reasonable person would evaluate the relationship. In my respectful view, this is particularly concerning because the parties will likely introduce large volumes of evidence, including the history of the relationship and records of daily communications to fully contextualize the perspective of the reasonable person. This court has recognized that this is a serious problem in adversarial family law litigation. Yeah, just like hundreds, if not thousands sometimes, of pages of messages.

[00:33:45]>> Text messages and emails and all kinds of things.

[00:33:48]>> this is my fear also about these objective tests because we see this now occurring within the Bill C-16 as a slight change to criminal harassment.

[00:33:58]>> That's right.

[00:34:00]It's no longer the complainant subjectively feared for their safety.

[00:34:04]It's it's going to be done on an objective basis.

[00:34:06]>> Which is scary.

[00:34:07]>> course of control provisions here.

[00:34:12]I kind of see the um in the in the way they've written it up, to me it looks like an aggravating factor, so >> Right. because they include things that are already crimes like assault and sexual assault, right? Um so, for them to put it into that context of a controlling environment, if it gets passed into into criminal law, I think it'll be like um if you have crimes against children, they may be charged with sexual assault plus sexual interference and then they're convicted of one, the other one's stayed cuz you can't be punished twice for the same thing.

[00:34:43]I I I see this potentially being an aggravating factor one. So, if they find course of control like potentially the the maximum penalty will be higher. For For if if they have coercive control in the context of a sexual assault, the person could be charged with sexual assault and coercive control.

[00:35:00]Aggravating factor, you mean? Like the course of control being you know, maybe a maximum of 14 years instead of 10.

[00:35:06]Like I'm interested to see how they separate it.

[00:35:08]>> could charge, you know, if this provision goes in, this is a stand-alone offense. Right. It's not a lesser included of sex assault.

[00:35:15]>> Right. So, you could actually charge both. Right.

[00:35:18]>> Right.

[00:35:18]But what I wanted to say was what if I'm reading this correctly, one saving grace about Bill C-16 after I read the Supreme Court's decision in I Lawali.

[00:35:30]Everyone commits an offense who engages in a pattern course of controlling conduct referred to in subsection two with intent to cause their intimate partner to believe that the intimate partner's safety is threatened or knowing that blah blah blah. So, there still may be some subjective piece element of this as opposed to a pure objective standard which they have in the tort.

[00:35:51]So, interesting days ahead. Well, but I you know, I don't know you know, I'm a little obsessed with this simply because of what it will do already to a difficult family legal system. I mean, it's not like it's a it's it's the road runner system, you know?

[00:36:10]Um this is not a quick system. It cases can grind out a decade.

[00:36:15]So, can you imagine if you add in now I mean, you would have it anyways for torts, but this could possibly open up as he suggests as an objective reasonable person, you're going to put in reams and reams and reams of messages and all sorts of other stuff. And if this encourages, if this encourages >> more and more um evidence in litigation, you're going to see you're going to see these these matters become you're going to have to divide litigation to try like it people will be embroiled in in family law litigation for years. I'm not you know, I'm You know, it has to be addressed, but I just don't think they needed to do this.

[00:36:59]I agree with the descent. An interesting factor, too, in terms of you know, foreseeable to cause harm, um taking leaving aside the say no harm acts actually has to be proven. If the person does claim that um they were caused harm of a psychological nature, then that opens it up for um the other litigant to challenge that and say this is a pre-existing condition. Oh god, yeah.

[00:37:23]Well, and and it and it and it >> What do they call them? Skull.

[00:37:26]>> Right. In in in the civil context, there's much more latitude to attack um the allegations than we have in the criminal law. Mhm.

[00:37:35]Right? So, you can bring in all sorts of other areas of evidence to try and refute it. Mhm. But yeah, I mean it it's You know, I'm not saying you know, I'm I'm generally as long as it's not weaponized and abused, I we as lawyers don't have a difficulty with addressing injuries that suffered by a true victim, period.

[00:37:56]>> Right. Um and if it deters bad behavior in the future, that's a good thing. But it only deters bad behavior if these decisions are made public knowledge.

[00:38:05]Right.

[00:38:06]>> Widely made public knowledge so that people, you know, >> Well, these would be. So, in the civil context, they're often reported decisions. Yeah, well, they're they're findable, but like I mean we'll have to spread it through social media and through journalism and stuff to advise people somehow. Oh, by the way, you should know this is now criminalized as behavior or by the way you can be sued for this. I'm talking in a civil Yeah, let's just let people know they could be sued for it now. Be careful. I think they know.

[00:38:33]I [laughter] mean, you know, if you're in an intimate partner relationship, this is you know, These are the types of control that can now be deemed you know, to be a tort. As you know, Justice Jamal raises a good good point that you're you you've opened up the the the broadness of what can capture this tortious behavior which is going to be problematic.

[00:38:54]Um It's going to be a lot of filtering that has to be done by the judge, right?

[00:39:00]Just imagine family court judges who are under tremendous pressure to get this system moving and to try and get cases moving to some sort of resolution because you have children involved. You financial issues where people's lives are completely disrupted by this. It's going to be a very hard thing to balance, navigate, organize.

[00:39:18]It's going to be challenging. Another layer of mud slinging. It's already mudslinging.

[00:39:21]>> Well, it already exist. I mean, here's the thing like there's nothing new about these torts. This is why I you know, I I find the dissent is a very appealing position because this has been in place for a long time and you can sue for I mean, years ago the courts may have not recognized um you know, the intentional affliction of you know, emotional harm >> emotional psychological harm the same way as they do now because we have rooted out stereotypes and discriminatory beliefs from or trying to still rooted out from the uh litigation process.

[00:39:54]But, it has it's grounded on decades worth if not longer of case law.

[00:40:01]This isn't. Right. And it may over broaden it and create other issues and then I think filter into the criminal context and once they go through the draft and get the legislation enacted, then start to figure out how you actually prosecute it and how you can prove it. Mhm. Who knows what's going to happen by way of further amendments to make it easier to obtain a conviction. I just don't want to see these things weaponized Yeah.

[00:40:25]>> more than they already are now. I mean, every personal injury law firm now has a specialty section for suing for sexual or domestic violence. Mhm. Yeah.

[00:40:35]>> Yeah. Just Google it.

[00:40:36]>> Well, I'm really I'm really interested to see, you know, how many men end up um claiming damages for, like we mentioned, financial abuse would be a big one. But um, you know, >> Isolation. isolation and being monitored and all this other stuff. So, then, you know, like you mentioned, we had a client who was found to have been a a battered spouse, basically. And you know, they've acknowledged that there are male victims. So, I'm interested to see if any men actually do end up I can tell you >> taking advantage of this.

[00:41:05]>> I caught a passage. Like, I have to spend more time on it, but I think the majority one of the judges wrote, you know, there is the the risk that the abuser could then bring a tortious claim for, you know, family violence as a defense to >> Yeah, retaliatory.

[00:41:21]>> Yeah, so like Yeah, but so? I mean, that that's the The person's not the abuser until the court decides on a balance of probability in a civil action that they're actually the abuser. So, at that point, it's a matter of it's a triable issue. Right. For both sides.

[00:41:38]Yeah. Yeah. I don't know. Was this interesting, guys? Like We just felt we had to address it. Well, it's it's pretty it's pretty big in terms of the case and this new tort. So, >> You know, a family lawyer said to me recently at dinner, you know, is this going to really make such a difference in in in the civil context, in the family law context? And a lot of our cases are are out of high conflict separations or divorces. So, we deal with this often.

[00:42:05]Is it really going to make a difference cuz we have the I think it's actually going to make a difference in the sense of creating a little bit more havoc, difficulty establishing it, or it'll be too easy to establish in situations where actually you haven't proved that that the that the plaintiff was actually coercively controlled. So, I think there's going to be problems. And that'll trickle over into the criminal side. Once the findings made, right?

[00:42:29]You mean on the civil side?

[00:42:30]>> Yeah. Well, yeah. I mean, fortunately, well, if you're smart enough to have your criminal lawyer involved at that stage. Like, just think, you know, if you You know, we've had situations where allegations have been made in the family court context before any criminal allegations.

[00:42:50]>> Right. Right. Then a criminal allegation comes. You have to be very careful about what happens in the family context by way of discoveries and other things. And there are rules that deal with that, but evidentiary rules, but yeah, I mean it's just going to get a lot more complex. So, it's something we have to address, and I hope it was of interest.

[00:43:09]Yeah.

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