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Allegations of Abuse in Family Law Cases – An Ontario Judge Speaks Up

 

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Allegations of Abuse in Family Law Cases – An Ontario Judge Speaks Up

In a post a few weeks ago, “Some Words of Wisdom from an Ontario Family Judge” , I quoted from the judgment of Mr. Justice Conlan in A.A.-L. v. M.L., who lamented over the “sad case” that he was asked to hear in his family law courtroom.

In a second decision, rendered only a few weeks earlier, a different Ontario judge offers some equally-cogent comments about the nature of abuse allegations between separated and divorcing spouses.

In a recent case, Mr. Justice H.M. Pierce considered a couple, originally from Algeria, about whom the judge said it was “doubtful that they were ever happy in their marriage”. The father was a professor and the mother was a physician; however the court pointed out that “[u]nfortunately, intelligence and good judgment do not always go hand in hand in family matters”.

The parents’ separation had been bitter, with both of them refusing to move out of the matrimonial home. Moreover the mother specifically asked the court not to order joint custody parallel parenting, and the father essentially concurred, adding that the hostilities between him and the other made it impossible. But of particular concern to Justice Pierce was the mother’s allegation that the father had been abusive towards her and their child.

In this context, Justice Pierce reflected on the nature of abuse allegations in family cases:

The difficulty with the term “abuse”, as it is used in affidavits filed in family law cases, is that it is used subjectively. It is an emotionally coloured term. It is not limited to describing physical violence but may be also be used to describe a range of conflicts including arguments, differences of opinion or values, or hurt feelings. For example, one partner may consider himself or herself as a good money manager while the other partner may perceive close budgeting as coercive control. One partner may consider an end-of-day inquiry about how the other spouse’s day went as an indication of love or interest while a disaffected spouse may deem the inquiry intrusive and controlling.

Allegations of abuse may be a symptom of the failure of a relationship. Blame is an inherent part of the allegation. Sometimes it is wholly warranted; other times it is not. When parties are not communicating, any slight or criticism is magnified. There is a tendency to minimize the other spouse’s good qualities and maximize the bad. Warring spouses are rarely in a position to step back and evaluate the other’s behaviour with objective eyes.

Nor are they able to critically assess their own behaviour. That is what has occurred here. The parents were ill-matched from the start and the history of their marriage is one of confrontation. The final chapter in the conflict will be written over who gets the children.

What are your thoughts about Justice H.M. Pierce’s comments?

For the full text of the decision, see:

A.A.-L. v. M.L., 2013 ONSC 7269 (CanLII) http://canlii.ca/t/g20s2

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.