Proving abuse or addiction in divorce can be ‘complicated’

Proving addiction or abuse in a divorce can be difficult without the right types of evidence, says Toronto family lawyer A. Julia P. Tremain.

While it can be a simple matter to accuse someone of bad behaviour during a marriage, proving it in court can be quite another, says Tremain, a partner with Waddell Phillips Professional Corporation.

“It’s complicated. These things go on behind closed doors,” she says. “It can be very much a he-said-she-said situation.”

Tremain says when it comes to addiction, defining the problem can be challenging.

“If you raise it as a concern, the parent can say, ‘I do use, but only on those weekends when I don’t have the children, and I have a job, and I’m doing well.’” she says. “People can be functioning alcoholics, they can smoke plenty of weed and still function every day, so it’s very tricky to just throw these words around because it is really about how it’s affecting the person’s life and their relationship with the kids.

“There is an argument that says if a person has an addiction, they need to be abstinent. Then there is another school of thought that says if you drink or use drugs but not when you have the children, and it’s not negatively affecting your life, is it harmful?”

Medical evidence of addiction

If the issue of addiction is raised, Tremain says she will try to compile medical evidence, such as reports of elevated liver enzymes as a result of alcohol use, or proof of police involvement, such as impaired driving charges.

Inversely, she says people who are accused of addiction are “usually anxious to prove that they don’t have a problem and are happy to say, ‘Here are my medical records. I’ve never been charged by the police.’”

However, Tremain cautions that “you can’t prove a negative,” so not having a record for impaired driving doesn’t necessarily mean you don’t have an addiction problem.

In the end, it comes down to what is happening with the person, she says.

“It’s often difficult to do anything unless it actually starts affecting the person’s life. If they lose their job because they can’t make it to work on time, then it becomes more obvious. But, if they are functioning, it is tough,” Tremain says.

Difficult to prove abuse

Proving abuse can also be “very difficult,” she says.

“It happens behind closed doors, and there are different kinds of abuse — verbal and physical,” Tremain says.

Gathering evidence that can be used in court can present a challenge, she says.

“What happens many times is that people are taping arguments,” Tremain says. “Some judges accept them in court, and others don’t because they don’t want to encourage people to secretly tape each other haphazardly.

“Generally, it is not viewed as a good thing, but sometimes judges will accept a taped conversation into evidence if it’s strong evidence about an accusation that the other party has been denying.”

On the other hand, text messages can be useful for proving cases of abuse, she says.

Important to keep records

“Many times, people are not thinking properly when they’re angry, and they fire off things that would not have been said on the telephone,” Tremain says. “When you have a text message where all the words are spelled out, that evidence can be very compelling.”

She says when it comes to physical violence, it is essential for the victim to have a safety plan. Tremain also encourages clients to keep a diary, report any incidents to police, and seek treatment when injured.

“I try to encourage victims of physical violence to get out of the situation,” Tremain says. “I want to make sure that if they have to get out, that they can do so safely with the children.”

She says there is still a stigma around domestic violence, and some people are afraid to come forward.

“There are still those who are embarrassed and do not want to talk about it,” Tremain says.