Keep safety in mind when leaving an abusive relationship

By Tony Poland, LegalMatters Staff • Living with an abusive partner can be harrowing but perhaps never more so when ending the relationship, says Toronto family lawyer A. Julia P. Tremain.

“One of the most dangerous times in those cases is the time of separation. That is when emotions are highest and people are most upset,” says Tremain, a partner with Waddell Phillips Professional Corporation. “That is when the very worst behaviour can come out. As lawyers, we do have to think about serious physical harm that can come to our clients if they try to leave and the other person is opposed.”

She says changes in the Divorce Act that came into effect one year ago reinforced the need to be cognizant of the needs of victims of domestic violence. 

“The updated definition of abuse is much broader and all-encompassing,” Tremain tells LegalMattersCanada.ca. “It covers sexual abuse, emotional and psychological abuse, abuse of children, financial abuse, abuse of animals. There is this whole notion of coercion and control, which is one of those things that can be so hard to define. But we see it all the time.”

Abused wife awarded $150,000 in damages

She points to a family court decision last month which shines the light on the consequences of domestic abuse. In her landmark ruling, Justice Renu Mandhane awarded a woman $150,000 in compensatory, aggregated and punitive damages for the tort of family violence, saying her husband’s years of abuse “calls for strong condemnation.”

“I recognize that making such a significant damage award is well-outside the normal boundaries of family law,” Mandhane writes.  “However, the marriage before me was not typical: it was characterized by the Father’s abuse, and a sixteen-year pattern of coercion and control. It was not just ‘unhappy’ or ‘dysfunctional,’ it was violent. The family violence the Mother endured at the hands of the Father is not compensated through an award of spousal support.

“Allowing a family law litigant to pursue damages for family violence is a matter of access to justice. It is unrealistic to expect a survivor to file both family and civil claims to receive different forms of financial relief after the end of a violent relationship.”

Tremain says the revamped Divorce Act resulted in more lawyers sharpening their focus on domestic violence.

“As lawyers we are very acutely aware of the problem. What we really do now is to ensure that we consider this issue carefully,” she says. “It is also important for the judiciary. Because the legislation sets out a much more expansive definition of intimate partner violence the court can now take that into account.

Abuse ‘takes so many shapes and forms’

“As family lawyers we certainly have always had training but even more of us are becoming aware that you really do have to be proactive and ask more questions about domestic violence because it is so Insidious,” Tremain adds. “It takes so many shapes and forms. It’s not just what people traditionally thought of as violence, which was the physical act.” 

She says it is important to ask clients probing questions while recognizing that it may take time for some to feel comfortable sharing their experiences. It is also important not to prejudge.

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“People also do not always behave the way we think they should,” Tremain says. “There is often that thought, ‘Why doesn’t a person leave when these terrible things are happening to them?’ Well, it may be very difficult to do if you are financially dependent on the other person or if you have children to consider.

“There can be much to think about. ‘How do I get out of this relationship? How do I express myself financially? How do I support my children? How do I move forward and get the support and therapy I need?’”

For many victims of domestic abuse who are looking to end the relationship, the first step is calling a lawyer, she says. 

“Of course, as a lawyer you have to respect their need for confidentiality. You don’t want to leave a message at their home, for example, and have their partner finding out they are planning to leave. That could be very dangerous,” Tremain explains. “You have to be very sensitive to that.”

Essential to put clients at ease

She says she has a standard set of questions she will ask a new client to start the conversation on abuse and she will probe deeper depending on the answers. It is essential to put the person at ease, says Tremain.

“If it becomes obvious that there is a concern or there is fear, you start talking about safety plans. You give the client options in terms of places they can go such as shelters or phone numbers for therapeutic support,” she says. “It is important to have all the relevant information available. People sometimes want to unburden themselves to a lawyer because we are the first ones who have asked these questions. But we are not trained therapists. As human beings, we often want to leap in and be supportive. But as lawyers, we have to remember our role and that it is very specific.”

The client’s welfare, along with the welfare of the children, is paramount, so legal matters may not be the first priority, says Tremain.

“For instance, the terms of a separation agreement may have to wait, even if you could negotiate with someone who has exhibited domestic violence,” she says. 

Safety might necessitate a hasty departure

Ideally, it is better if the person leaving has arranged for new living arrangements but safety might necessitate a hasty departure, says Tremain.

“If financial control is an issue, the abused spouse may have trouble saving enough money to put a first and last month’s deposit on an apartment. And they cannot assume they are going to get support from the other party immediately, especially if their partner doesn’t want them to leave in the first place,” she says.

If there is an urgent need to move out, Tremain says she can provide information on where to seek help. Victims of domestic abuse can also call police.

“It is our role as lawyers to support clients who are victims of domestic violence but within the context of the legal proceeding,” she says. “However, we can offer referrals to ensure they are receiving the kind of support that they need.”

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