Separation deals can be challenging in abusive relationships
This article was originally published on AdvocateDaily.com (now closed down) on 7 October 2019. It is re-published in full below.
By Paul Russell, AdvocateDaily.com Contributor
If allegations of domestic violence arise during a divorce, there is little chance a separation agreement can be reached without going to court, says Mississauga family lawyer Deepa Tailor.
“Sometimes mediation and arbitration are not good options, especially if one side is alleged to be abusive,” says Tailor, managing director of Tailor Law Professional Corporation.
“A lot of people tell me they want to negotiate a separation amicably — and they want it to be cheap and outside of the courtroom — but if there is abuse in the relationship, that is just not realistic,” she tells AdvocateDaily.com.
The power imbalance in these situations makes a negotiated settlement impossible, Tailor says, adding the abusive partner is usually in charge of the household finances and may be reluctant to disclose everything in out-of-court proceedings.
“It’s important to retain legal counsel right away whenever there’s abuse involved so that all communication is handled by lawyers for each side, as opposed to the two parties speaking with each other,” she says.
Tailor says there are lessons everyone can learn from high-profile divorce cases involving allegations of abuse, citing a Globe and Mail article concerning two Hollywood actors.
According to the story, the wife asked a judge to dismiss a US$50-million defamation lawsuit her ex-husband filed over an op-ed about domestic violence she wrote for a U.S. newspaper. As well, she provided new evidence which she said supported her allegations of abuse.
The wife alleged the husband slapped, shoved, choked or pulled her hair on more than a dozen occasions, which he denied, claiming she was abusive to him, the article states. During the hearing, she provided photos of bruises on her face and scars on her arms, plus screenshots of text messages describing the incidents at the time.
“Text messages or Facebook messages are really powerful evidence when it comes to proving abuse,” says Tailor. “It’s much easier to get text messages admissible as evidence during a hearing versus a secret video recording, which may be ruled inadmissible by the court since one or both sides were not aware it was being made.”
She says proving abuse can be difficult in many relationships, as friends and acquaintances who have witnessed the negative interaction between the spouses may not be willing to testify in court about what they have seen.
“Abuse can take other forms than just being physical, as financial and emotional abuse all tie back to that power imbalance between the parties,” Tailor says.
Because abuse is difficult to prove, legal counsel should be consulted early on to determine what evidence is admissible, she recommends.
“Just because you have what you think is good evidence — such as a secret videotape of your spouse yelling at you — doesn’t mean the court will actually accept it,” Tailor says.
She stresses that the first step for anyone facing abuse is to get themselves to a safe place.
“If someone tells me they are in an abusive relationship, I tell them they must immediately find a way out of the situation, and then we can sort out the legalities on the back end,” Tailor says. “Personal safety comes first.”
She encourages these clients to draw on their social support network or go to shelters that take in victims of abuse.
“I try to take an empathetic approach to the practice of law,” Tailor says. “I realize this is a very difficult process for those going through it.”
Another problem is that some cultures and religions are more accepting of a power imbalance in a marriage, she says.
“Some people don’t even recognize they’re in an abusive relationship, as that is the family setting they grew up in,” Tailor says. “The first step is recognizing what abuse looks like, and once you understand that you are in an abusive relationship, then you can do something about it.”