Emotional Abuse and Family Court Proceedings

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by Pamela Cross

"Sticks and stones may break my bones,
but names will never hurt me."
                                                                  - Playground chant

Not so, say thousands of women who have been emotionally and verbally abused by their partners and have been unable to have this acknowledged by the legal system.

Both the criminal and family court systems now take physical assault by a man against his female partner reasonably seriously. In the criminal system, protocols for handling arrests, bail hearings, evidence and sentencing have been developed, although penalties remain appallingly light. In the family system, evidence of physical abuse is considered when custody and access determinations are made.

Unfortunately, the legal system only addresses abuse when there are bruises and broken bones, even though emotional abuse can inflict longer term injuries that are more difficult to heal. Nowhere is the lack of recognition of emotional abuse more problematic than in family courts, where lifelong decisions about custody and access are made.

There are three pieces of legislation that govern custody, access and related matters in family court. The Divorce Act (federal legislation) makes no reference to violence even in those sections dealing with custody and access. The Children's Law Reform Act (provincial legislation), the principal statute used in custody and access proceedings, likewise does not use the word "violence." It states that custody decisions are to be made based on the "best interests of the child".

A parent who has been proven to be physically abusive to the children is not likely to get custody of the children. Increasingly, physical violence by an abusive partner against the other may be considered, but this is not yet the case with emotional abuse. The only legislation that makes overt reference to violence is the provincial Family Law Act, which lists violence as one of the considerations in determining which spouse should remain in the matrimonial home.

Presenting a case in family court that relies strictly or primarily on emotional abuse is a difficult task -- in part because of the lack of definition in the legislation, but also because of the attitudes of most players in the legal arena. The environment of the courtroom also does not provide an atmosphere that is conducive to understanding what any form of abuse does to a woman. [The cumulative effects of repeated and ongoing emotional abuse tactics may be reduced to a series of individual acts that, on their own, are not seen as abuse].

For example, an abusive partner isolates a woman from her friends and family, keeps track of her every move, calls her every hour, goes through her purse, listens to her phone calls, makes all the decisions, and convinces the children that she is not to be respected or listened to.

If we want family court to take emotional abuse seriously, we will have to approach it the same way we did with physical abuse 20 years ago, beginning with education for all players in the legal system. In addition, we must examine the increasing reliance by the family courts on mediation-related initiatives and ensure that those professionals, too, are educated and sensitized to emotional abuse, particularly in screening adequately for mediation.

We also need to lobby for legislative reform — there being no more important time than now, with the federal Minister of Justice publicly committed to provincial consultations to respond to the recent House of Commons/Senate report on custody and access entitled "For the Sake of the Children."

When well-educated lawyers, supported by appropriate legislation, are able to present thoroughly documented cases to judges who understand what emotional abuse is, and that it is every bit as serious as physical abuse, decisions about custody and access will begin to reflect what is in the best interests of both women and children.

This project has received support from the Ontario Women's Directorate and does not necessarily reflect the view of the Government of Ontario.