The Myths of Domestic Abuse and Family Law
See My Instagram Reel: Domestic Abuse: Myths and Truths
I blame television courtroom dramas for this: for the notion that domestic abuse is difficult to address in court, that judges have a high tolerance for abusive spouses, or that proving there has been abuse is difficult without independent evidence. It gets dismissed as a matter of “He-Said, She-Said.” The worst offending example is Episode Two of the Practice of Season One – it took counsel three separate court appearances to simply get a restraining order against a clearly violent spouse. The judge accepted there were “threats and intimidation” but dismissed the claim on a technical point. In the second court appearance, the evidence of violence was far worse, but, because there were no “cuts, bruises or stitches”, the judge would not issue a restraining order. Eventually, after the spouse left voice messages of a clearly threatening nature, the judge issued a restraining order, though for only 60 days.
There are many, many similar examples of this on television, leaving actually abused spouses with the impression that they will be re-abused in court if these television shows are any guide. And, actual high-profile sexual assault cases in the media also contribute to this notion that victims get re-victimized in Court.
There are Many Reasons for Hope in Family Court
Definition of “Family Violence”
Say what you will about Prime Minister Justin Trudeau (and plenty has been said), but his reforms in 2021 to the Divorce Act gave us essential tools to address family violence. First and foremost, it uses the actual word “violence.” No more gentile, euphemistic language – the word “violence” is stark and plain. Secondly, it gives Canadian society the first ever definition of family violence by statute. No more guesswork from judges on what constitutes violence or abuse. You can read the definition here, Divorce Act, which lists nine separate categories that each constitute family violence. And, possibly most importantly, in the definition of “violence,” only two of the listed categories involve actual physical contact between spouses. The statute recognizes that violence can take many forms, many of which are not actually criminal and not actually physically injuring. Controlling behaviour, financial abuse, psychological abuse are all recognized as a form of “violence.” Premier Ford also followed suit and enacted the nearly identical definition in Ontario law (you can read it here: Children’s Law Reform Act at Subsection 18(2) a little down the page.) I will be forever grateful to Prime Minister Trudeau for bringing our family laws into the 21st century.
So How do Judges Respond to Claims of Family Violence?
Soon after separation, the risk of violence, breakdowns and police involvement is high. Judges understand this and are inherently inclined to assess the circumstances and to issue orders to help ensure safety and peace. It is a natural question in family court to decide whether it is safe or appropriate for both parties to stay in the family home or if a party should be forced to leave and one permitted to remain. It is also common to obtain court orders restricting contact or communication between spouses. And proving abuse or violence, when it has taken place, is often not difficult. Misogynistic text messages speak for themselves, as does cutting a party off from financial resources or withholding keys to an essential vehicle. It is usually difficult, perhaps even impossible, to engage in such conduct and not leave clear evidence. So, getting a judge’s attention, to prove that there has been family violence, is generally not that difficult, particularly soon after separation. A judge would never say, as the judge did in the Practice, “show me a bruise” or “show me criminal charges before I’ll do anything.”
Where is the Difficulty?
The difficulty lies in two places, I think. The first is for the spouse to take the first step of addressing spousal abuse. It can be daunting, perhaps even terrifying, to speak with a lawyer and to take court action to ensure safety. The questions abound: If I leave my spouse, where will I live? Where will my children live? How will I pay the bills? How do I ensure my safety? Will I lose my children? These are all valid questions. No one can promise anything, of course, but we do work with clients to help develop a plan of action and a safety plan. We also put clients in touch with some truly fantastic counsellors who can help restore confidence.
The second area of difficulty really is in the long-term: addressing safety concerns soon after separation is usually not that difficult – the events and the evidence are usually fairly recent and raw. But, once the dust settles and time has passed, the safety concerns may not be as easy to prove. After all, if nothing has happened for two years after separation, there may not actually be a safety concern. Or there may be and it may be significant, but there may be nothing current to point to. The flip side to this: violent behaviour that continues after separation tends to be more alarming to judges, that there is a long-term issue that needs a more drastic response.
Conclusion and Takeaways
Family violence is much easier to prove than is popularly believed. Taking steps in court to ensure safety is often not difficult. The difficulty lies in having the confidence to take the first step.
In all of this, having legal advice and support can be essential. Contact Us for a consultation if you are experiencing family violence and need legal support.
