In Family Law, How Far Should the Concept of “Violence” Go?
In one of my more popular posts from a while ago In Family Law, Can Text Messages Amount to “Violence”? we discussed a case called Menchella v. Menchella http://canlii.ca/t/ftmth in which the court concluded that the husband’s relentless and abusive texting to the wife amounted to “violence” for the purposes of the Ontario Family Law Act. This finding, in turn, entitled the court to grant the wife exclusive possession of the matrimonial home.
The concept of “violence” has been similarly broadened in British Columbia, this time in a custody dispute. In a recent 50-page decision called B. (M.W.) v. B. (A.R.), the court found that the wife’s “litigation approach” to the family dispute between her and the husband itself amounted to “family violence” for the purposes of that province’s Family Law Act. (Under B.C. law, the presence of “family violence” is one factor that a court must take into account in assessing the best interests of the child. A court that finds such family violence exists is then required to consider a number of additional listed factors.) The court relied on this finding to justify awarding custody of the couple’s 12-year-old child to the father.
The litigation between the couple was certainly acrimonious, and featured an extraordinary degree of conflict both before the trial and after. However, the wife was particularly obstructionist in her approach to both the separation and the litigation that resulted from it: Not only did she launch needless litigation and routinely disobey court orders, but she also continually thwarted the husband’s reasonable attempts to sell some commercial property that they owned. This included ignoring e-mails, refusing to hand over the keys, and changing the locks in order to block the appraiser’s access to the property. During the latter incident, the husband had to spend 5 hours looking for a locksmith so that the appraiser could be let in; this was on a weekend where he had travelled 33 hours to be able to see his child.
All of this resulted in the husband having to incur significant legal expenses, which the court said had “used up much of his emotional and financial resources.” It also observed that “The [husband] has suffered financial hardship, much frustration and stress-related illness that I attribute to the [wife’s] conduct.” The economic security and emotional and psychological well-being of the child had been impacted as well.
Viewing the wife’s conduct as a whole, the court drew the legal conclusion that it had reached a level that amounted to “family violence” under the B.C. legislation. That definition expressly included concepts such as “psychological or emotional abuse of a family member”, “intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property”, “intentional damage to property”, and “direct or indirect exposure to family violence” by a child. It ordered that the child’s principal residence should be with the husband.
Have the B.C. and Ontario courts gone too far in defining “violence” this way? What are your thoughts?
For the full text of the decision, see:
M.W.B. v. A.R.B., 2013 BCSC 885 (CanLII) http://canlii.ca/t/fxjb5
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