The COVID-19 pandemic has been a catalyst for a myriad of public health, economic, and political catastrophes across the world; the novel coronavirus is also contributing to increased risk of harm within the family unit. Numerous media outlets have reported that cases of domestic abuse have sharply increased worldwide because people are now forced to stay home. Most of us are lucky enough to ride out this quarantine with our loved ones and pets – however, such is not the case for those who are in relationships with abusive partners. It is an unfortunate reality that the home can be the most dangerous, precarious place to be for certain people, and now that schools and workplaces are closed, these same people have lost small windows of daily respite away from family violence.
About a quarter of all violent crimes reported to the police in Canada are characterized as domestic violence. This fact amounts to about 100,000 reported incidents per year, considering that this statistic only accounts for cases that were reported to law enforcement, as well as the propensity of victims of domestic violence to refrain from reporting their abusers, the actual number of cases is suspected to be even higher. Read Statistics Canada’s article on domestic violence in Canada to learn more information.
What Is Domestic Violence?
Domestic violence is an act of violence in an intimate relationship, which could encompass a broad range of dynamics, including married couples, common-law couples, people who are exclusively dating, as well as those who are in open relationships. There has been a recent movement in academia to replace the term with ‘intimate partner violence’ to include various forms of partnerships. While acknowledging the inclusive intent and legitimacy of the term, this post refers to the phenomenon as ‘domestic violence,’ as such is the language used in our legal system at this juncture.
Although physical violence is the most noticeable and significant category of violence between partners, domestic abuse encompasses other forms of cruelty imposed upon one partner by another. These include verbal, emotional, psychological, religious, sexual, and financial violence. The critical element of abuse is control; one abusive partner takes away the other’s agency, and eventually conditions the victim to fear and/or rely on the abuser. The Duluth model is a diagram widely accepted by professionals in educating the public about the different types of abuse between intimate partners.
The Significance of Allegations and Findings of Domestic Violence in Legal Proceedings
Our justice system often falls short when it comes to supporting victims of domestic violence. This is not to say that the courts will choose to ignore allegations or findings of domestic violence in family law proceedings. However, the legal recourses available in the context of family law (and criminal law) are specific and limited. It is encouraged that victims of domestic violence seek help from professionals in multi-disciplinary areas – such as doctors, therapists, child psychologists, and social workers – to receive the support that they need to heal and grow.
Family courts will not deem a spouse or parent a ‘bad person’ in the face of allegations of domestic violence. Findings of moral culpability and subsequent sanctions are within the jurisdiction of the criminal courts. The family court’s role in the context of domestic violence is to ensure the safety of the abused partner and the children of the relationship through various remedies imposed by either temporary and final court orders, as well as mitigate any economic damages experienced by the abused spouse by making a spousal support order. Each of these legal mechanisms is discussed below.
Exclusive Possession of Matrimonial Home
Section 24(3)(f) of the Family Law Act gives the court jurisdiction to order exclusive possession of the matrimonial home when family violence has been committed by one spouse against the other spouse and/or the children. Exclusive possession means that one party lives in the house to the exclusion of the other throughout the litigation or further court order. The intention of this provision is not to punish the perpetrator spouse, but to protect the abused spouse and any children in the household. This, of course, is a significant restriction on one’s property rights, and therefore not a recourse liberally ordered by judges. The threshold for exclusive possession of the matrimonial home is the severity of the abuse rendering the spouses living together in the same home impracticable. This order takes effect regardless of who is on the title for the property; remember that the exclusive possession order is temporary and only addresses the use of the property, as opposed to its ownership.
Custody and Access
In Ontario, a parent’s conduct is only considered for the purpose of determining custody of and access to the child when it is relevant to the person’s ability to act as a parent, or if the person committed violence against his or her spouse, partner, a member of the person’s household, or ANY child. These provisions are outlined in subsections 24(3) and 24(4) of the provincial Children’s Law Reform Act. A similar provision is found in section 16(9) of the federal Divorce Act.
The courts are mandated to consider the maximum contact principle per section 16(10) of the Divorce Act. The children of the marriage should have as much contact with each parent as possible, as long as it is in their best interests. Therefore, if the court finds a parent who has abused the other parent, and subsequently discovers that the abuse undermines their capacity to act as a parent, the court might consider this when determining whether the other parent must be given custody of and/or access to the child.
Indeed, most abusive spouses are granted access to the children under the maximum contact principle, albeit with terms such as requiring supervision and/or restricted in length and frequency of access visits. It is quite rare that perpetrators of domestic violence are entirely and indefinitely prohibited from ever seeing or contacting their children again, especially if the children were not the direct victims of violence. Sometimes the courts may impose certain conditions, such as the abusive spouse taking parenting classes, anger management classes, enrolling in substance abuse support groups, or seeking help from a mental health professional before access to their child resumes.
Note that per section 20(1) of the Children’s Law Reform Act, a child’s parents are presumptively equally entitled to custody of the child, unless there is an agreement or a court order that says otherwise.
Section 46(1) of the Family Law Act gives the court jurisdiction to make a temporary or final restraining order if someone has reasonable grounds to fear for the safety of himself or herself, or the safety of any child in his or her custody, against a current or former partner. The legal threshold is ‘reasonable,’ meaning that although some degree of subjectivity will be allowed, the court requires an objective set of reasons for which a person may feel fear of harm.
According to case law, examples of behaviour that might reasonably incite fear in this context can include persistent harassment over a significant period, stalking, threats of abduction, threats of physical harm, and intimidation.
It should be noted that restraining orders do not have criminal consequences; choosing to ignore a restraining order can result in a contempt order, for which the court can impose sanctions such as a fine or some time in jail. However, this is qualitatively different from a criminal offence, nor will it form a part of a criminal record.
Findings of domestic violence can have an impact on whether the victim spouse should be awarded spousal support, and if so, it is quantum.
For example, if the victim spouse suffered severe physical or mental health consequences, which eventually impacted her income-earning ability, she might be entitled to spousal support on a compensatory basis. In the case of Jean Francois v. Jean Francois, Justice Sachs ordered the husband to pay the wife $3,000 per month in spousal support where the wife was found to have suffered post-traumatic stress order from years of abuse inflicted by the husband. Specifically, her symptoms included short-term memory loss, inability to sleep, malfunction of the nerves in her right hand, and depression. The malfunctioning of her hand was of importance, as she was a hairdresser, and her conditions rendered her unable to continue her profession for much longer.
It is essential to understand that spousal support in the context of domestic abuse is not a conclusion made in light of moral or ethical duty. It is a legal exercise in which the court acknowledges that the abusive spouse’s conduct caused economic detriments to the victim spouse. Helpful pieces of evidence include medical records, therapy notes, and disability payments.
The findings of abuse can also have an impact on the issue of spousal support if the abusive spouse is the recipient spouse. Section 33(10) of the Family Law Act states that the obligation to provide spousal support exists without regard to the conduct of either spouse. Still, the court may, in determining the amount of support, consider a course of conduct that is ‘so unconscionable as to constitute an obvious and gross repudiation of the relationship.’
This, of course, requires crossing a high legal threshold, and the common law test has only been met in exceptional cases.
If you are in an abusive relationship, sometimes you might feel like you are trapped and alone. It is important to remember that nobody deserves to be treated cruelly, especially by their partner. Aside from designing a safety plan, seeking help from the justice system is one of the most important steps in reclaiming your life and agency. Court orders, whether temporary or final, can assist you in re-establishing personal boundaries and earn you some time to take a breather before thinking about whether and how you would like to proceed with your current relationship.
This blog post is not intended to be legal advice and was written for general education purposes. Please consult with a legal professional at Kain & Ball to find out about your legal rights and responsibilities; we are here to help you during these challenging times.
The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at firstname.lastname@example.org to book a free 30-minute consultation with one of our experienced family law lawyers at Kain & Ball Family Law.