The Court’s reminder that family violence is not determined on a criminal standard
Given that parenting disputes are to be decided in the best interests of the children, it should be refreshing to hear that courts are not held to the highest burden of proof when children are potentially in danger. In determining family violence, the civil standard applies: a balance of probabilities. And given the recent expansion of family violence, the courts are much more willing to consider a broad definition of “family violence”, including things like psychological abuse.
In the recent divisional court decision of B-L v M, 2022 ONSC 2357, the mother appealed the interim order to return her three children to Canada. The mother had fled after making allegations that the father had been committing family violence. The motion judge was particularly concerned with the fact that the mother had resorted to self-help remedies, removing the children from the jurisdiction without a court order, instead of relying on proper procedure:
The Mother and children fled the home on December 8, 2020 and contacted the police after erratic and abusive behaviour by the Respondent, CM (the "Father"), including his disclosed intent to purchase a gun.
The motion judge was rightly concerned that the mother unilaterally moved the children from Canadian jurisdiction without proper procedure and emphasized that the mother had the the benefit of the criminal restraining order against the father to rely on:
…[T]he Respondent was arrested and charged with various criminal offences of a historical nature related to the Applicant, the children and other individuals. He was charged with further offences in February 2021. The Respondent disputes the allegations, which have yet to be disposed of by trial. While it may be trite to say so, the Respondent is presumed to be innocent of all charges until proven guilty.
The divisional court was quick to rebut this remark:
The motion judge…erred when he downgraded the concern that the criminal charges raised by saying that the Father was presumed innocent of these charges pending trial.
The presumption of innocence is directly related to the criminal burden of proof — beyond a reasonable doubt. It has no application in the family law context where the burden of proof is balance of probabilities.
Further, while agreeing with the need to discourage unilateral moves and self-help remedies, the divisional court felt that the motion judge erred in failing to consider family violence properly and treating the mother’s unilateral move as the most influential factor when in fact it must be the best interests of the children:
…[T]he primary focus cannot be on misconduct of the Mother. The law mandates that it is the best interests of the children that is the primary consideration. The actions of the Mother are one important factor in that analysis, but not the only one. The motion judge's errors in relation to the issue of family violence and his errors in his consideration of the primary consideration - the children's physical, emotional and psychological wellbeing - mean that the motion judge's decision directing the Mother's return to Canada with the children must be set aside.
[The motion judge] failed to consider the expanded definition of family violence set out in the Divorce Act. The Divorce Act provides a broader definition of family violence that goes beyond conduct that might be considered a criminal offence and does not require that the conduct alleged be proved beyond a reasonable doubt. This error caused the motion judge to err in his consideration of the evidence concerning family violence. This evidence went beyond competing allegations; there was uncontested evidence of family violence in the form of texts and emails from the Father to the Mother in the months preceding the separation. According to the Mother, these texts and emails contained threats and were in and of themselves psychologically abusive, bringing them within the expanded definition of "family violence" under the Divorce Act. Other uncontested evidence of family violence included the Father's admission that he threw and broke a plate during an argument where the children were present; his text message to the Mother after she fled the home after an argument where he said "You should not have left. Very wrong again. I won't lay a hand on anyone. Come back now."; and the fact that the Father was in the process of purchasing a gun at the time of separation.
The motion judge erred again by limiting his consideration of family violence to the criminal charges. The Divorce Act is clear — family violence encompasses conduct that may not be considered criminal. It includes conduct that is psychologically abusive and means "any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct". It includes conduct that is psychologically abusive, financially abusive or that involves the destruction of property. The Mother's allegations included conduct that met all of these criteria.
The divisional court went to great lengths in analyzing the allegations and evidence of family violence. Among this evidence, the father had been charged with over 17 criminal offences, including for assault and threats against the mother, conduct allegedly committed against one of the children, and the father admitted to having put a down payment on a handgun after making serious threats. The divisional court disagreed with the motion judge, who stated that there was no objective evidence of family violence, by examining various text messages between the parties;
The Mother attached concerning texts and emails from the Father on October 2 and 3, 2020 that caused her to take the children and temporarily stay with her aunt and uncle. The texts made repeated threats and demands, and included violent, domineering and militaristic language:
Father: You're excuses can't save you now. If you don't take responsibility and confess it will confirm everything I suspect about you. That I'm not what you really wanted or who you really care about . . .
Father: You must adequately confess for everything. If you are unable to, I have to proceed and take action against you. If you retaliate in action against me, I will overcome your action with one of my own until arrest or death. And if arrested, I will wait. And either die, losing with catastrophic loss to us both, or proceed to action upon release. You have moments to act in accordance. As I have already begun defensive measures. . . .
Father: You must adequately confess that you have wronged me. If you don't, I will have to assume that you are working with others to beat me and are an enemy in disguise. I will have to launch full defensive action. All I need to know now is that you agree to work to comply. Which you have failed to provide. . .
Father: You have until tomorrow morning to submit a confession of your actions including relevant details, involved persons, actions and perceived aftermath and effects against my person. If it is rejected, you will have a total of 3 attempts after which point if all rejected I will finalize protective measures and present you with a compensation agreement. If you are unable to agree to the treaty, you'll be declared an enemy. Good luck. . . .
Mother: I can assure you that I am not an enemy of you. I really want everyone to have what they need and to be safe.
Father: I'm undecided. But hope for the best.
Father: You should be worried . . . . . .
Father: I am protecting myself and allowing you in one way, otherwise I will take from you what I can for compensation and block you out completely.
Mother: I'm sorry that you are feeling so offended. Is it all about my actions before we were living together as husband as wife? I am just trying to understand what you are offended by. I feel unsafe by how you are acting and want to keep in open communication with you about that so that you don't misunderstand my actions. I don't want you to view anything I do as an action against you accidentally.
[Father]: You have worked together with other people against my interests and person, but multiple counts of sexual betrayal in intent and action. The loss and aftermath of your actions taken have been catastrophic for me. If this was your interest, you will defence your actions and become my enemy. Or you will admit wrong via confession and work to compensate for my losses or agree to a treaty that settled the losses and we go our separate ways. If this process fails I will declare war against you . . . . . .
Father: This is your test, your trial. And you will be found guilty. Just remember, your words can't save you. You must give something. Retribution. It will cost you. I just hope you can pay. Please stay strong. Don't give up. You have my permission to use the gun in self defense and defense of our kids. But not against me, unless I say otherwise.
The Father goes on to say that he would be sad to see the Mother receive more consequences than she deserved, and the effects of her offences will cost her greatly — justice must be served — and he is in control.
The Father does not deny this text exchange, which he attempts to justify by saying he sent them out of jealousy.
In a text message to the Mother, sent on October 7, 2020, he states:
I've had a very violent mind always full of terrible things. Threatening to everyone.
. . . I would act violent but didn't realize. Or know
. . . I've seen so many scary things. You have no idea.
I've seen what is possible
. . . I seeked it out against my greatest fears to make sure I would live
And that if I could stop it I would
I could save us
But it became me
I became that in my mind
The very thing I feared most.
. . .
I faced the guy in the window, death. I let him come for me, and then I grew very large and tore him to pieces. That's what I will do to every thought I have that never was. I will rip them part and smash them out of my way. I'll tear their face from their skulls and eat their remains. I will fight and when they run I will catch them and smash them into the ground and destroy the entire structure. And see their domain burned to the ground. I ripped off his face. His mask. He ran so I chased him and smashed him to bones. I'm very alive I need to go fight.
The Father's explanation for these texts is that he was talking about a disturbing dream that he had.
In a text dated October 25, 2020, the Father states:
I have chronic sadness, anger, frustration, fear and morbidity with random feelings of sadism and masochism. So I will need a closet with a good door and latch . . .
These exchanges are evidence of a controlling and psychologically abusive relationship. The text messages and emails contain threats. When the Mother expresses her fear of the Father, he does not reassure her. Instead, he states that it is all up to her. She must atone for wrongs and if she does not do so to his satisfaction, the results could be catastrophic. The text messages from November 1, 2020 are also objective evidence of a psychologically, if not physically abusive relationship.
The purchase of the gun considered in the context of the Mother's allegations is also some objective evidence that the Mother's allegations are true. She alleged that the Father threatened her and made threats to harm the man she had a relationship with before she married the Father and the man's family, and that the Father told her he was picking up a gun the next day. That is why she went to the police. There is objective evidence, including an admission from the Father, that he was intending to pick up a handgun. There is also objective evidence in the email exchange that the Father regarded the Mother's sexual involvement with another man before they met as a "terrible offence" for which he had to be "repaid or extract all I can for my losses." The fact that the Father had a licence for this firearm is of small comfort when considering the dangers to the safety of the Mother and the other man the Father threatened that the use of a handgun could pose.
The divisional court also analyzed the mother’s allegations as outlined in her affidavits, including several alleged instances of assault:
The Father denied "the majority of the claims of abuse" but not all the Mother's allegations. The Mother alleged that on December 7, 2020, he told her he was planning on purchasing a gun the next day which he needed "for whatever he was doing next" — he had talked about needing it specifically for "murder, suicide, threat, and/or to control". The Mother attested that she was advised by the police on December 12, 2020, that he had gone ahead with his plan to purchase the gun. The Father admitted that he put a deposit down on the gun but after he was arrested, he cancelled it and got his deposit back. He denied saying to the Mother that he needed it "for whatever he was going to do next". His evidence was that it was "for the purposes of developing a new hobby".
Obvious takeaways? The criminal standard, beyond a reasonable doubt, is not a relevant consideration in family violence cases in Ontario. In determining whether family violence has occurred, the courts are to look at the facts and make a decision based off of a balance of probabilities. In B-L v M, 2022 ONSC 2357, there was objective evidence that the father had engaged in family violence, and it tipped the court in the mother's favour.