Written by: Kevin Heinrichs (View All Posts
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) Published: December 2, 2013
Categorized: Case Analysis, Child Support, Violence.
In the new Family Law Act, the legislature has provided an expansive definition of “family violence” which includes, amongst other things:
1 (d) psychological or emotional abuse of a family member, including
(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,
(ii) unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy,
(iii) stalking or following of the family member, and
(iv) intentional damage to property, …
In doing so the legislature recognized that psychological and emotional abuse is a form of violence that can occur without any actual physical violence taking place. The legislature gave the Courts the task of determining if family violence was occurring, and if it was occurring, of using that information to make appropriate decisions about how the children of the separating couple are going to be parented.
When the Family Law Act was passed, many lawyers who practice family law wondered how exactly the courts were going to interpret “unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy.” In the recent case of J.C.P. v. J.B., a Provincial Court Judge found that in some cases, non-payment of child support can be psychological and emotional abuse.
There has been some criticism of this decision (see for instance Lawdiva). Much of the criticism appears to be focused on the differences between physical and psychological abuse, rather than on the similarities. It is important to keep in mind that when discussing “family violence” in this context, we are not considering criminal repercussions or even considering “punishing” the perpetrator of the “family violence.” What the court is focused on is what the “family violence” says about the perpetrator, and their ability to effectively put their children first. While psychological abuse is different than physical abuse, it can still speak loudly about the character of the abuser.
In J.C.P. v. J.B., Judge Merrick determined that non-payment of child support by the father was family violence. Crucial to this determination was Judge Merrick’s view that the father was refusing to pay in order to inflict psychological harm on the mother. Specifically, he said:
[18] While I am of the view that the failure to pay child support will not often constitute an act of family violence, when the failure is the result of a determined decision not to pay, knowing the impact it would have on Ms. B., who had limited income, and my rejection of Mr. P.’s explanation for failing to pay, I have concluded that this was designed to inflict psychological and emotional trauma to Ms. B. and is therefore an act of family violence.
[emphasis added]
This case is not really about non-payment of child support being “family violence.” Judge Merrick specifically states that the failure to pay will not often be “family violence.” What this case really says, is that if one spouse is doing something in order to deliberately inflict psychological harm on the other spouse, they are at risk of being found to be engaging in family violence, and the Court may very well conclude that they are not the sort of person that can be trusted with the well-being of a child.
