Jamie Sarkonak: How being in a toxic relationship can now get you sued

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You can sue someone for inflicting mental distress, for causing you physical harm, and for causing you to fear that you’ll experience physical harm, which should cover all the bases of domestic violence. But on Friday, a majority of the Supreme Court went a step further and recognized a new way to sue for suffering mere indignity in a relationship.

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It’s called the “tort of intimate partner violence” — which isn’t exactly an accurate title, as it doesn’t actually require violence to have taken place. The essentials are just this: a relationship between the parties (past or present) must have existed, intentional abusive conduct by one against the other must have taken place, and that conduct must amount to “coercive control.”

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Torts are civil wrongs for which you can sue, such as defamation and negligence. In the English legal system, they are typically created by judges, though there is a general expectation that judges should be conservative in inventing new torts. This is because society wouldn’t function if every single wrong a person could experience were given its own form of lawsuit, and the constant introduction of new forms of liability would undermine the stability of the legal system.

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Caution aside, we can now sue on the basis of coercive control. The Supreme Court explains it like this: “The key feature of coercive control is, on an objective measure, the breakdown of the plaintiff’s will, manifested through a diminished power to decide important matters in their own life or to meaningfully take part in decisions that affect the intimate partnership.”

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It’s clear that the intent of the judges was to capture abuse within a relationship that isn’t necessarily violent. Years of belittling insults, accusations, threats to publicize secrets and intimate photos, cruel mind games like rearranging household items to cause a partner to doubt their memory, etc. That kind of conduct is clearly wrong, but when the line between lawsuit-worthy abuse and non-lawsuit-worthy toxicity is just the breakdown of will and diminished agency, well, it puts a lot of less-obvious cases at risk of court intervention.

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Stray away from the obvious examples of psychological abuse and manipulation in a relationship and the line-drawing exercise becomes more challenging: what about a person whose wilted morale can be traced to a toxic ex who insulted and humiliated the other for the final months of their relationship? What about relationships where efforts to undermine the other went both ways?

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The court tried to disqualify more basic, grey-area toxicity from lawsuits on the basis of intimate partner inequality, writing that coercive control is not just “antisocial conduct that often characterizes high conflict relationship breakdown” or the “inevitable ups and downs of a relationship,” and noting that relationships “may suffer from dishonesty, infidelity, emotional neglect, lack of maturity, or even cold and dismissive conduct.”

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The judges left it ambiguous as to when bad behaviour crosses into civil liability. It requires a pattern, but not necessarily multiple acts of abuse. It requires careful consideration of the power dynamics of a relationship and the subtle events that occurred while the couple was together that aren’t lawsuitworthy on their own. Problematic behaviours, the court notes, can be psychological and financial, ranging from giving the other partner the “silent treatment” to “preventing the victim from seeing family and friends, working, or participating in other educational or recreative activities.”