I read an article by Tom Leonard called: Who’s telling the truth in Hollywood’s most vicious divorce? She says he’s a drug-addled abuser; he says she’s a gold-digging liar. So what’s the real story between Amber Heard and Johnny Depp? Though it’s an unruly title, it does reflect an unfortunate dynamic in divorce courts.

Abuser-v-Liar1Never mind for now “drug-addled” and “gold-digging”. We can deal with those adjectives in a separate post. What about the allegation of domestic violence?

“Who is telling the truth?” is often the central question in front of a judge when there is conflicting evidence from the two litigants. This problem is exacerbated in situations where there is not much by way of objective evidence such as third-party witnesses, documents, or forensic, physical or photographic evidence, to support or disprove either story.

Some litigants and lawyers complain of a trend wherein one party in a family law case will turn to the criminal process to obtain a speedy outcome such as removing a spouse from the family home, knowing that generally, when a report is made the police must investigate and may well lay charges. A complaint to the police can result in a “no-go” order or peace bond that prevents one party from attending the family home or contacting complaining party. Such restrictions can immediately make issues surrounding occupancy of the home and co-parenting difficult, and can take a long time to be resolved. A criminal charge can quickly stigmatize the accused in the eyes of the community.  It is said that a 911 call alleging abuse can give the caller an early advantage in the family law case.

On the other hand, domestic violence is a very serious problem all across Canada and the risk of family violence escalates at or near the end of an intimate relationship. Both men and women report that the risk of being victimized increases when a relationship ends and that the severity of abuse increases on a break-up. However, more severe forms of domestic violence are reported by female victims, including:  sexual assault, being beaten or choked, or threatened with a weapon. Men on the other hand are more likely to report being kicked, bitten, hit, or hit with an object.

The intersection of domestic violence and family break-ups is so problematic and pressing, that Ontario introduced an “Integrated Domestic Violence Court” to provide a single court where families with domestic violence issues can have their family and criminal issues heard by a single judge. The court does not adjudicate divorce, property or child protection matters.

In British Columbia, when reforming the old Family Relations Act, the B.C. Ministry of Justice set out to bring the law surrounding family violence up-to-date with current research. The Ministry of Justice relied upon research that showed that “deliberately false or maliciously false allegations of violence are, in fact few” and “denials or failure to report real abuse are more common than deliberately false allegations.” The Family Law Act, enacted in 2013, brought in detailed provisions to counter-act family violence, and provides a broad definition of family violence, which includes not only physical and sexual abuse, but also includes psychological and emotional abuse.  The Ministry also relied upon statistical evidence which indicated that “women are more likely to experience the most severe and frequent forms of spousal assault, are more likely to be physically injured and require medical attention, and are more likely to report negative emotional and psychological consequences. Children are more likely to witness violence inflicted on their mothers.”

Litigants do at times make ungrounded or exaggerated allegations against each other.  However, break-ups are volatile and dangerous spaces, and people, especially women, are at greater risk of serious harm. As a result, in the trenches of a high-conflict separation or divorce or a desperate custody dispute these allegations can be particularly troublesome to law enforcement and the judiciary. In British Columbia, we do not as yet have an Integrated Domestic Violence Court. Instead, we must rely upon the skills of our judges to weigh the evidence, consider the reliability of the evidence and reach a decision as to “who’s telling the truth”.