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Does Callousness Amount to “Violence”?

Written by Russell Alexander / (905) 655-6335

Does Callousness Amount to “Violence”?

Many of you might not be aware that in Ontario, the Family Law Act (the FLA) contains provisions that allow a court to consider whether one spouse has committed violence against another spouse or the children, specifically in the context of deciding whether to allow the victimized spouse to have exclusive possession of the matrimonial home.

For these purposes, “violence” is generally easy to identify from a common-sense perspective, and includes physical or sexual force, threats, stalking, harassing, and emotional abuse. But Ontario courts have sometimes been called upon to define the precise limits of that concept.

For example, in a case called Aston v Matwee, the wife made a bid for an order ousting the husband and granting her exclusive possession of the family home. In this context, she argued that being a vulnerable spouse, the husband’s callous conduct towards her qualified as “violence” within the meaning of the test set out in the FLA.

Specifically, she claimed that the divorce was causing her stress and that the husband’s conduct was impinging on her already-fragile health which caused her stress and anxiety that amounted to an emotional condition.

In entertaining this argument, the court took a close look at how “violence” had been defined by courts in the past. The cases showed that in connection with claims for exclusive possession, the character of the violence to be established must amount to a “psychological assault upon the sensibilities of the other spouse to a degree that renders continued sharing of the matrimonial dwelling impractical.” When perpetrated by one spouse on the other, this would typically involve written and spoken conduct that produces an anxiety state, putting the other spouse in fear and impinging on his or her mental and physical health to the point where “violence has been done to [his or] her emotional equilibrium as if [he or] she had been struck by a physical blow.”

Accordingly, the court in Aston v Matwee conceded that “violence” under the FLA is not restricted to physical conduct or abuse (i.e. it can be achieved words and deeds in some cases), but held that the wife’s evidence fell short of showing that the required statutory threshold had been met in her case. The court also pointed out that the FLA did not allow the wife’s emotional condition to be taken into account as a factor.
The court observed that it in light of the potential outcome if the wife prevailed in her application – which would be to dislodge the husband’s statutory right to possess the matrimonial home – the court had to be certain that the necessary legal burden of proof was met before it could make the order. The wife had not succeeded in persuading the court in this instance.

For the full text of the decision, see:

Aston Matwee, 2015 ONSC 8087 (CanLII),

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.