Non-physical Domestic (Family) Violence and Family Law

Man experiencing non-physical domestic violence

You may be wondering whether you can count on the family law court to help you if you have suffered non-physical abuse.

There are different forms of non-physical abuse that can be viewed as domestic violence.  Your partner may harass or intimidate you by making threats against you to cause you to fear for your safety. He/she may send you repeated emails or texts; using derogatory language against you; using the litigation process to harass you; threatening to go bankrupt or to become unemployed to avoid paying child/spousal support; damaging or threatening to damage your property; using financial restrictions to control you; isolating you from family and friends to control you; stalking; exposing the children to threats of violence against you; making disparaging remarks against you to the children; disparaging you in front of teachers, friends, and others. Cumulatively or individually depending on the extent of such behaviour, the court may conclude that you are a victim of abuse.

Domestic violence is not arguing with your spouse or demanding behaviour by your spouse; it is not a situation where you are equally combative; it is not provocation where your spouse says something to “push your buttons”. In essence, the family law courts do not require us to be “nice people” to each other.

Family courts have accepted that exposure to domestic violence can be harmful to children.  Such exposure can take many forms including hearing a violent event; witnessing the abuse of a parent or sibling; intervening; being used as a shield against abusive actions; experiencing the aftermath of a violent event including police involvement. The impact of exposure to domestic violence can be long-lasting and can impact the child who becomes depressed, anxious, has low self-esteem, engage in substance abuse, and has an inability to form trusting relationships with others.

The difficult task is to prove family violence. Family violence often takes the form of a he-said, she-said scenario, in which proving the violence turns largely on the court’s assessments of each party’s credibility. You must be able to provide evidence of controlling and coercive conduct and of exposure of such conduct to the children.

In criminal courts, domestic violence must be proved beyond a reasonable doubt.  In family court, it must be proved on a balance of probabilities. In criminal court, it is the crown and police who are responsible for presenting the evidence.  In family court, you must prove your case against your partner.

If family violence is proved in family court then there are several possible court orders that the court can make.  The court can order exclusive possession of the matrimonial home; child/spousal support and supervised access by the abuser to the children at a supervised access centre or to be supervised by a trusted adult. The family court may also issue a restraining order against the abuser.

The form of parenting arrangement ordered by the court can vary depending on the circumstances. The court will consider such factors as whether the violence was an isolated incident, relatively minor (a shove), out of character, accompanied by genuine remorse, responsibility-taking, and did not induce fear.  If so, then joint custody and shared parenting may be one possible court order.

Joint custody means joint decision-making. This type of parenting arrangement may entail children residing with a primary caregiver or alternating weeks between caregivers.  In either case, the parents must jointly decide on all major decisions affecting the children regardless of who may be the residential parent. Where there has been a clear history of poor communication, coercive interactions, inability to problem-solve, and a lack of child-centred focus by one or both parents joint custody is unlikely to be ordered.  A serious mental health problem or substance abuse suffered by one or both parents would also not lead to such a parenting arrangement.

Another parenting arrangement is parallel parenting. The children may alternate weeks in living at each parent’s home with each parent being independently responsible for decisions and having ultimate decision-making authority while the child is in their care. This arrangement is structured to minimize contact between the parents and protect the children from exposure to ongoing parental conflict.  Such an arrangement is possible where each parent is equally capable but engages in intense conflict with the other parent and the structured parenting regime alleviates such conflict.

Sole custody means that one parent is clearly in charge of all major decisions and the non-custodial parent generally has more limited child contact but access to important information about the children (e.g., school reports). There may be a sole custody arrangement without supervised exchange or access or with supervised access/exchange.

Rarely does the court order that there shall be no contact unless the parent presents an ongoing and significant risk of violence.

The family court does protect you and your children in the case of non-physical abuse but you must prove your case with evidence of behaviour that has caused you to fear for yourself and/or for your children.

Written by Lynn Kirwin. A family law lawyer at Galbraith Family Law. To book a consultation with Lynn please click this link.

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Lynn Kirwin

Lynn Kirwin has been practicing law for 28 years. She specializes in high conflict family law cases with a focus on resolving them in an expedient and results-oriented manner. She believes in saving the client costs. She offers the option of limited scope retainers. As well, coaches many clients through the process of family court including assisting them with self-representation at trial. Her wide breadth of knowledge has lead her to have published several books on family law as well as other areas of law. She has expertise in child abuse cases having worked as in-house counsel at a Children’s Aid Society and having represented parents in court on child protection cases. She also is a panel member for the Office of the Children’s Lawyer, providing representation for children in court. She volunteers her time as the Chair of a Board for a women’s shelter and as President of the Orillia Law Association. She has two daughters who attend university. She enjoys spending her free time travelling with her husband, road cycling and taking long walks with her two beagles.

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