Family Violence

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 89-128

8989

Chapter 5

Family Violence

A. INTRODUCTION

One of the best kept secrets of the t wentieth century w as the incidence of

violence in supposedly i ntact families.1 It is only in the la st twenty-ve years

that family v iolence has been recogni zed as a serious soci al and legal prob-

lem that encompasses the abuse of elde rly parents or grandparents as well as

spousal and ch ild abuse.

In the words of MacDonald J, of the Nova Scot ia Supreme Court, in MAB

v LAB:

Domestic violence most com monly refers to a situat ion where an adult

intimate or former i ntimate part ner attempts by psycholog ical, physic al,

nancia l or sexua l means to coerce, domin ate or control the other. is

1 See, general ly, Desmond Ellis, Manag ing Domestic Violence: A P ractical Handbook for

Family Lawyers (Toronto: Lexis Nex is Canada, 2019); Lind a C Neilson, Respon ding to

Domestic Violenc e in Family Law, Civil Protectio n & Child Protection Cases, 2 017 CanLI-

IDocs 2, Febru ary 2017; see als o Linda C Neilson, Br ief to House of Commons Standing

Committee on Justic e and Human Rights on Bill C-78: An Ac t to amend the Divorce Act, e

Family Orders and Ag reements Enforcement Assis tance Act and the Garn ishment, Attach-

ment and Pension Diversio n Act and to make conseque ntial amendments to other Ac ts, 28

November 2018. A nd see Linda C Neilson , “Enhancing Sa fety: When Domest ic Violence

Cases Are i n Multiple Legal Syst ems (Criminal , Family, Child Protec tion): A Family Law,

Domestic Violenc e Perspective,” 2d ed (2013), onlin e: www.justice.gc.ca/eng/rp- pr/-lf/

famil/enhan-renfo/index.html; Joseph Di Luca, Er in Dann, & Breese Davie s, “Best

Practices W here ere Is Family Vio lence (Criminal L aw Perspective),” onli ne: www.jus-

tice.gc.ca/eng/rp-pr/cj-jp/fv-vf/bpfv-pevf/index.html; Luke’s Place, “ What You Don’t

Know Can Hurt You: e Impor tance of Family Viol ence Screening Tools for Fami ly

Law Practit ioners” (Februar y 2018), online: Depar tment of Justice https://www.justice.

gc.ca/eng/rp-pr/jr/can-peut/can-peut.pdf.

Canadi an family law90

violence reveal s a pattern of conduct that may be ver bal, physical or sex ual.

e conduct targets anot her person’s self-esteem and emotiona l well-being.

It can include humi liating , belittl ing, denigr ating, inti midating, cont rol-

ling or isolati ng behaviour. It can include phys ical assaults, sex ual assaults,

sexual hu miliation , sleep deprivat ion, extortion , economic coercion,

threats to har m or kill, d estruction of prop erty, threatened or atte mpted

suicide, litig ation harassment a nd litigation tac tics, manipu lation of chil -

dren, of relative s, of investigation agenc ies and helping person nel, sur-

veillanc e, monitoring, and st alkin g. e abuse and violence i n intimate

partnersh ips has a complex reciprocal dyn amic not found in violence that

occurs between strangers. 2

B. ABUSE OF THE ELDERLY

A sadly neglected aspect of abuse that has come to t he forefront since the

1990s is abuse of the elderly.3 Although such abuse has been found in situa-

tions involving inst itutional care, it more frequently involves younger fam ily

members, often chi ldren or grandchildren.

e most common abuse of the elderly is na ncial abuse, which is often

accompanied by emotional abuse. e ret irement savings of an elderly parent

or grandparent may be squandered by children or grandchildren. Month ly

pension or disability cheques may be with held. Children a nd grandchild ren

may “jump t he gun” on prospective inher itances without any thoug ht for

the impact of such conduct on the elderly pa rent or grandparent. eft of

money or possessions represents more than 60 percent of all cases of abuse

of the elderly. In some instances, resista nce by the elderly person may result

in physical abu se.

It has been estimated t hat at least 4 percent and perhaps as many as 15 per-

cent of the elderly in Canad a are abused nancially, emotional ly, or physically

by their children, grandchi ldren, spouses, or ca regivers. Health and Welfa re

Canada esti mated that more than 315,000 Canadians over si xty-ve years of

age are victims of abuse. However, the incidence of abuse is likely to be much

higher because of the ea se with which it can be concealed by fam ily members.

e character istics of the abused vict im are similar to t hose identied with

respect to the “battered wife syndrome.” Victims of elder abuse feel helpless

and sense that they h ave no place to go in order to avoid the abuse. ey often

2 2013 NSSC 89 at para 20.

3 See, generall y, P Lynn McDonald et al, E lder Abuse and Neglect in C anada (Tor ont o:

Butterwor ths, 1991); see also Ma nitoba Law Reform Comm ission, Report No 10 3, Adult

Protection and Eld er Abuse (Win nipeg: e Commission , December 1999).

Chapter 5: Family Violence 91

have low self-esteem, are de pendent on the abuser, and lack the physical, emo-

tional, and often  nancial ability to withdraw from the abusive environment.

ey are fearfu l of being abandoned or sent to an institution; the y are ignorant

of their legal ri ghts; and they are often isolated or unable to communic ate.

Abuse of the elderly is not a new soci al problem but its incidence is

increasing with the aging of the Canadian popul ation. In 1991, 11.6 percent

of the population of Can ada was over six ty-ve years of age. By 2031 , it will

be more than 22 percent. A lthough federal and prov incial governments, uni-

versities, and socia l agencies are beginning to show some interest in de ning

the boundaries a nd potential solutions to the societa l problem of abuse of the

elderly, no concerted eort has yet been under taken to come to grips with it.

ere is evidence, however, of increased awa reness of the need for change.

A parliamentar y study on abuse of the elderly i n 19934 recommended that

federal fundi ng should be availa ble to provide shelters for elderly victims of

abuse.5 It also recommended that the federal government should work wit h

organizations respon sible for professional standards a nd for the education

of physicians, nurses, social workers, bankers, and lawyers so that abuse of

the elderly could be identied a nd dealt with. It further recommended t hat a

large-sca le federal study should be undertaken to asce rtain the scope of the

problem and the means of deal ing with it.6

C. NATURE OF SPOUSAL A BUSE

Although the expression “spousal abuse” ha s been traditiona lly conned to

persons who are marr ied, it is also frequently used to refer to conduct bet ween

divorced spouses or persons liv ing in a cohabitationa l relationship. “Spousal

abuse” takes var ious forms, but all i nvolve domination or the improper exe r-

cise of power or control over a spouse, divorced spou se, or quasi- marital part-

ner. Spousal abuse may involve physical, sexual , psychological, or economic

oppression.

4 House of Commons Sta nding Committee on He alth and Welfare, Soc ial Aair s, Seniors

and the Status o f Women, Breaking the Silence on the Abu se of Older Canadians: Ever yone’s

Concern (Ottawa: e Com mittee, June 1993).

5 e rst seniors’ shelt er in Canada was op ened in east-end Montrea l in 1992: Ottawa

Citizen (12 Aug ust 1994) B7.

6 See Canadian Net work for the Prevention of Eld er Abuse, “A Draft Frame work for a

National Strat egy for the Prevention of A buse and Neglect of Olde r Adults in Canad a: A

Proposal ” (7 November 2007), onli ne: www.cnpea.ca/Strategy%20Framework%202007.pdf;

and “Outlook 20 07: Promising Appr oaches in the Prevent ion of Abuse and Neglec t of

Older Adults in C ommunity Setti ngs in Canada ,” online: www.cnpea.ca/Promising%20

Approaches%20Final%20%202007.pdf. See, genera lly, the Canadia n Centre for Elder Law,

online: www.bcli.org/ccel.