You Don’t Need a Physical Scar for it to be Deemed “Violence”: Physical or Mental Cruelty

The third and final mode to prove there has been a breakdown of the marriage is through showing a presence of physical or mental cruelty.  This can take many forms and may result in complex legal questions, which can become an unfortunately distressing situation that Family Law practitioners come across all too often. “Family violence” is a term that includes many different forms of physical or psychological abuse or neglect and can be experienced by adults or children in a family.

There are various forms of violence, and unfortunately many forms of family violence are crimes.  This could include:

  • Physical abuse such as hitting, punching, kicking, burning, cutting, stabbing, forcibly confining or shooting;
  • Some forms of psychological abuse such as threatening violence, destroying property, stalking; and
  • Financial abuse such as taking a pay check or failing to provide life necessities.

Other forms of family violence may not be considered crimes such as humiliation, yelling or controlling behaviour, but they are often signs that violence could get worse.

Family violence can have serious – and sometimes fatal – consequences for victims and those who witness the violence.  If your spouse psychologically or physically abused you or your children, your family’s future safety becomes of primary concern.  Many organizations and individuals are available to help in this situation such as lawyers, social workers, counsellors, support groups or local shelters and transition houses.

Traditional mediation or counselling with your spouse may not be appropriate in circumstances involving abuse or violence.  However, in some provinces or territories, specialized counselling procedures have been developed to support couples where there are concerns about violence.  Working together doesn’t always mean being in the same room.  You can learn more and obtain further information about family violence at:

In Family Law, Can Text Messages Amount to Violence?

In one interesting case, the question arose as to whether one spouse’s text messages can amount to “violence” against the other.  A father and mother separated after 15 years of marriage and they had one child together, who was 12 years old.  The mother claimed that the father’s abusive texts to her had amounted to “violence” – which under s.24(3) of the Family Act was one of the specific factors that a court consider in granting an order for her to obtain exclusive possession of the matrimonial home.  The court began by observing that, for the purpose of Family Law Act considerations, violence does not need to be physical.

Violence through non-physical actions such as words or deeds is a concept well establish in both criminal and civil law. Words may be delivered in many different forms and the facelessness and ubiquitous nature of electronic messaging imposes no variation on the analysis. Violence as constructed within Section 24(3)(f) of the Family Law Act does not require direct physical injury.

The father’s texts had been sent to the mother over the course of a full week, were threatening and intimidating, and were not proportional to the situation. Any reasonable person would have found them to be injurious.  Moreover, they were potentially harmful to the child and it was of critical importance to the court that their daughter not be exposed to adult conflict.  The court found that the father’s vitriolic text clearly met the threshold for violence for the purposes of the Family Law Act section and allowed for a grant of exclusive possession to be authorized in the mothers favor.

Allegations of Abuse in Family Law Cases

The everyday job of Canadian judges is to preside over difficult, emotionally charged and sometimes heartbreaking legal disputes.  During a case involving abuse allegations between separated and divorcing spouses, an Ontario judge, Justice Pierce, reflected on the nature of abuse allegations in family law cases.

He explains that the difficulty with the use of the term “abuse” in affidavits filed in Family Law cases is that it is an emotionally coloured term that is used subjectively. It is not limited to describing physical violence as it may be used to describe a range of conflicts including arguments, differences of opinion or values, or hurt feelings.  For example, one partner may consider themselves as a good money manager while the other partner may perceive close budgeting as coercive control. One partner may consider an end of day inquiry about how the other spouse’s day as an indication of love or interest while a disaffected spouse may deem the inquiry intrusive and controlling.

In certain situations, allegations of abuse may be a symptom of the failure of a relationship and blame is often an inherent part of the allegation.  In some cases, the allegations are wholly warranted; other times it may not be.  When parties are not communicating, any slight or criticism may be magnified and there is a tendency to minimize the other spouse’s good qualities and maximize the bad.  It is rare that warring spouses are able to evaluate the other spouse’s behaviour with objective eyes; Nor are they able to critically assess their own.  In Justice Pierces’ case, the couple was ill matched from the start and the history of their marriage was one of confrontation.

One of the sad and unfortunate realities of Family Law practice is to realize that some relationships are not only dysfunctional or not viable, but some are downright abusive.  Physical and emotional harassment or abuse of some failing relationships can unfortunately prompt desperate behaviour on the part of the victim which in turn can give rise to some complicated legal issues and circumstances.