Gary Joseph  |  May 2026

This article was originally published by Law360 (www.law360.ca), part of LexisNexis Canada Inc.

I have a friend (yes, indeed, I have a couple) who practises personal injury law. This past weekend he called me after reading about the Ahluwalia decision (Ahluwalia v. Ahluwalia, 2026 SCC 16). He visited and over tea, he asked
me a simple question (really, a couple).

First, what do family lawyers know about damages claims? His answer (not mine): nothing! More substantively, he asked me how the law of mitigation fits into this type of claim in the context of family law breakdowns. In personal injury matters, including tort claims, the party wronged has an obligation to mitigate the damages. How a party responds to the wrong impacts the extent of damages. In fact, there is a legal duty imposed upon the party wronged to take steps to minimize the financial loss or injuries of any type after the tort has been committed. I am told that damages can be limited if you fail to take reasonable steps to avoid or reduce the loss or injury.

With the mind-clearing assistance of a good strong cup of English Breakfast tea, I was left to ponder this concept after my friend departed. Will a party to a bad marriage suffering under an intimidating, controlling and humiliating spouse have such obligation, and what would be considered reasonable steps to mitigate?

I understand that what is reasonable steps to mitigate is a question of fact, one that would be assessed in the full context of the relationship. I hate the fact that this again opens the door to further subjective application of a reasonableness test to family law litigation, but this is the “dinner” we have been served by Ahluwalia.

What may be reasonable to me may be unreasonable to you, or more importantly to a trial judge. What evidence must I as trial counsel assemble to show that my client took reasonable steps to mitigate the damages of coercive control? What steps must the opposite party take to tender evidence that my client failed to mitigate? This, in my view, is just more of the slippery slope we are falling down in dealing with a serious social problem (intimate partner violence (IPV)) through the introduction of further tort relief to family law proceedings.

Now let’s go further into the law of damages as we family lawyers are about to embark on this journey.… Quick everyone, amend your pleadings!

How does the “thin skull rule” apply to the tort claims of IPV? We know, or should know, that the wrongdoer is obligated to take the victim as he/she finds them. So, what do we do when one party
marries a party with a known mental health issue? What if this health issue prevents the wronged party from making reasonable decisions to mitigate? Bring on the experts. There is a whole cottage industry waiting to enter the family litigation arena. My five-day trial on family law issues just became 10 days.

Our courts are already overflowing and backlogged. Even those who call me “stupid” (yes, I have heard that description many times since I began writing these articles — and even before) have to admit that this decision will increase, not decrease, litigation time. Even though I am called stupid, I am not. I have read and respect the SCC decision but (a) that doesn’t mean I like it (I prefer the Ontario Court of Appeal decision) and (b) I cannot raise concerns whether you believe they are real or not.

What I really object to is the celebratory reaction of most (not all) of the family law bar to this decision. Let’s hold the celebration until we see the true lasting effect of this decision.

How does this decision address and reduce the risk of IPV? Do we really believe that the abuser will be swayed by possible damages claims in the context of an intimate relationship breakdown? Will victims be protected (not compensated) by this decision? How will the damages award affect other aspects of the family law claim? Is the award not extinguished by a bankruptcy (help me please, bankruptcy lawyers)?

I have so many more questions and so few answers. How much litigation is it going to take to sort all of this out, and who will pay for it? Rather than litigate, let’s identify the root cause of the problem and direct the full force of societal resources to that goal.

I am a family lawyer and as my friend said, I know nothing (or very little) about damages claims. I guess I am about to learn some — call me “stupid,” if you will.

You can read this article directly on Law360.

Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

The opinions expressed are those of the authors) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.