Hi All,
I often state that the term "abuse" and "domestic violence" is over used in the context of family law and it appears that Regional Senior Justice H.M. Piercea has a similar opinion.
Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)
Date: 2013-11-08
Docket: FS-13-0020-00
URL: CanLII - 2013 ONSC 6960 (CanLII)
Citation: Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)
In para. 12 Justice Piercea states:
Note the explicit identification that the term "abuse" is "used subjectively" and that it is an "emotionally coloured term". In particular, many people claiming "abuse" and "domestic violence" in affidavits are simply expressing "differences of opinions or values" or "hurt feelings".
The example provided of the "good money manager" being "perceived" as controlling is an excellent one. The other example of the person inquiring about how their day went as "intrusive and controlling".
The honourable justice goes on further to state (my emphasis added on this one):
Allegations of abuse are often the symptom of a failed relationship. Rarely if ever does the court, OCL and/or Section 30 evaluator explore the past relationships of someone alleging "abuse". Generally, false accusers have a pattern of alleging all of their past relationships failed due to their intimate partner being abusive. This history of false allegations can often easily be traced back to their first relationships.
The honourable Justice cites the following case law which is also very interesting for establishing the above two positions on "abuse" / "domestic violence":
This case law is recent and would be an excellent addition to anyone's book of authorities who are facing these common, emotionally coloured, and subjective false allegations of "abuse" and/or "domestic violence".
More on this case law as it involves the elusive "status quo" as well and an excellent breakdown of this as well. As identified in previous postings, the use of false allegations of "abuse" and/or "domestic violence" often comes hand-in-hand with an attempt to establish a "false status quo"...
Good Luck!
Tayken
I often state that the term "abuse" and "domestic violence" is over used in the context of family law and it appears that Regional Senior Justice H.M. Piercea has a similar opinion.
Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)
Date: 2013-11-08
Docket: FS-13-0020-00
URL: CanLII - 2013 ONSC 6960 (CanLII)
Citation: Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)
In para. 12 Justice Piercea states:
[12] The difficulty with the term “abuse”, as it is used in affidavits filed in family law cases, is that it is used subjectively. It is an emotionally coloured term. It is not limited to describing physical violence but may be also be used to describe a range of conflicts including arguments, differences of opinion or values, or hurt feelings. For example, one partner may consider himself or herself 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 went as an indication of love or interest while a disaffected spouse may deem the inquiry intrusive and controlling.
The example provided of the "good money manager" being "perceived" as controlling is an excellent one. The other example of the person inquiring about how their day went as "intrusive and controlling".
The honourable justice goes on further to state (my emphasis added on this one):
[13] Allegations of abuse may be a symptom of the failure of a relationship. Blame is an inherent part of the allegation. Sometimes it is wholly warranted; other times it is not. When parties are not communicating, any slight or criticism is magnified. There is a tendency to minimize the other spouse’s good qualities and maximize the bad. Warring spouses are rarely in a position to step back and evaluate the other’s behaviour with objective eyes. Nor are they able to critically assess their own behaviour...
The honourable Justice cites the following case law which is also very interesting for establishing the above two positions on "abuse" / "domestic violence":
[11] The mother argued strenuously that the father has been abusive towards herself and Aniss and is therefore disqualified from being the custodial parent. A useful discussion about domestic violence is found in L. (N.D.) v. L. (M.S.) 2010 NSSC 68 (CanLII), 2010 NSSC 68 (CanLII). At para. 34, Madam Justice MacDonald describes the range of conflict that may occur in a home and its legal implications for custody:
In order to understand whether domestic violence exists within a family it’s [sic] definition and effect must be stated clearly and comprehensively. Unfortunately the words “domestic violence” do and have defined a number of behaviours including isolated or rare incidents in a relationship – a push, a shove, rudeness, disrespect, and name calling all of which are unpleasant to those on the receiving end of these behaviours but which should not necessarily be accepted as an indication that the relationship requires judicial intervention. If these behaviours have no pattern of repetition and leave little if any lasting impact upon the recipient they need not be monitored with the same vigilance as will be the case when coercive control is involved. Counselling programs for persons who are “unpleasant” towards others may be quite different from those designed for persons who resort to abuse as a mechanism of coercive control.
More on this case law as it involves the elusive "status quo" as well and an excellent breakdown of this as well. As identified in previous postings, the use of false allegations of "abuse" and/or "domestic violence" often comes hand-in-hand with an attempt to establish a "false status quo"...
Good Luck!
Tayken
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