The toughest family law cases are the ones involving abuse. In the more than 30 years I’ve been practising family law, I have seen the damaging effects when one partner manipulates, intimidates and threatens the other as a way of entrapping them in the relationship. Abuse can be physical, emotional or economic. In all its forms, it is insidious and carries long-term repercussions for victims, both the adults and the children.
Amendments to the Divorce Act, which came into effect March 1, 2021, are aiming to make the legal system more responsive to the needs of Canadian families through four main objectives: the promotion of the child’s best interests; protection against family violence; reduction of child poverty; and increased accessibility and efficiency of the family justice system, reports Canadian Lawyer.
The updated Act also includes changes to the wording used to describe parenting arrangements by making them more child-focused: “custody” and “access” have been replaced by “parenting orders” and “parenting time.” Time will tell whether those changes have the intended effect of reducing conflict between parents in family law matters.
Economic abuse recognized as a form of violence
One of the most significant aspects of Bill C-78 is the amendment to extend the definition of family violence to include financial abuse, which has never been formally recognized in law.
“For the purposes of the Divorce Act, family violence is defined as any conduct that is violent, threatening or a pattern of coercive and controlling behaviour, or that causes a family member to fear for their safety. In the case of a child, it also includes direct or indirect exposure to such conduct. The definition specifically recognizes that conduct that falls within this definition would not necessarily constitute a criminal offence. The definition also has a non-exhaustive list of examples of conduct that constitutes family violence. According to the Department of Justice website, these include “physical abuse, psychological abuse, financial abuse, and the harming or killing of an animal.”
What is financial abuse?
The United Nations defines financial or economic abuse as making or attempting to make a person financially dependent by maintaining total control over financial resources, withholding access to money, and forbidding attendance at school or employment.
The abuser might restrict their partner’s access to money in several ways, including:
· taking control of their earnings
· not allowing them to have a bank account
· misusing family funds and
· incurring debts on their behalf without their consent.
The abuser’s goal is always the same: to gain power and control in the relationship. Financial abuse is not something that gets better without intervention; experts say it often escalates and can lead to other types of abuse. A study by the Centers for Financial Security found that 99% of domestic violence cases also involved financial abuse.
Changes in the justice system
While there have been advances in addressing domestic violence in criminal courts, researchers say family courts have been slower to absorb the realities of abuse and its impacts on the victims. This is especially true for financial abuse, which can be difficult to establish, but recent cases show that it is starting to change.
In a 2019 case heard by the Supreme Court of British Columbia, Justice Neena Sharma highlighted that financial control was one aspect of the abuse a woman suffered at the hands of her former partner.
“The parties had a 28-year relationship in which the respondent exercised financial control over the claimant. He took all money from the parties’ joint bank account prior to separation. He was removed from the home and charged with assaulting her, and I have found that she was in a traumatized state after suffering years of physical, mental, emotional and financial violence from him. I have found that she is most probably permanently disabled. It could not have been a surprise to the respondent that without financial assistance from him, she would be in a dire situation,” the judge wrote in her decision.
Her husband gave conflicting testimony, but the court found her account more credible and ordered him to pay $15,851 in unpaid support, another $14,410 in retroactive support, along with $1,400 per month in spousal support to be paid indefinitely.
“The [husband’s] financial control over the claimant was an element of family violence that she endured,” the judgment reads. “This impacted her upon the breakdown of the relationship as he took all the family’s money, and she was unaware of what financial obligations they had towards the house.”
Prolonged court battles
Power imbalances are often at the root of high-conflict marital break-ups. When one party has a high-conflict personality, a negotiated settlement is tough to achieve without highly skilled professional involvement. These types of cases inevitably involve prolonged court battles. High-conflict people have great difficulty accepting and coping with a marriage breakup and will go to extreme lengths to stonewall the process.
If you want to end your marriage and are experiencing abuse, you need a strong legal advocate. Navigating a marital breakup where the dynamic of abuse is present can complicate the legal process. It’s important to work with a lawyer who understands those issues and a successful track record of resolving them.
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