Summary of Family Law issues/”loopholes” wrt emotional abuse

We are not legal experts. The information here comes from discussions with lawyers as we have followed different victims' journeys.

Burden of Proof

Family Law, like any law, has a standard that admissible evidence must meet. There are good reasons for these standards to exist to prevent false accusations from gaining traction in a legal proceeding. The difficulty comes with something like emotional abuse of a spouse or children. It is very difficult to gather evidence of this type of abuse that meets the legal threshold for being admissible. There are almost never witnesses. Emotional abuse doesn’t leave visible traces that can be photographed. Victim testimony often falls into a “he said; she said” endless circle. If the abuse involves children, even organizations tasked with protecting them won’t act unless the children themselves testify directly to their staff as to what is happening,

Emotional abusers know these things. They threaten children to silence. They deny and deflect, often with great credibility, that any abuse is happening. The easiest defence is that the victim/spouse made it up.

Joint Custody

Another problem with family law wrt emotional abuse is that the default position is what used to be called joint custody. In the new law I believe it is renamed joint decision making. This means that both parents must agree on schools, extra curricular activities and medical and dental care for the children. Once again this works if both parents put the interests of the children in front of every joint decision. Emotional abusers, especially narcissistic ones, are by definition controllers. They can’t compromise. Every decision becomes a winner take all “game”. They can’t make joint decisions unless they win. One particularly terrible result of this legal default is that emotional abusers of children get to veto help for those abused children. This permission is entrenched in the law. Many therapists will not even do an exploratory intake interview without permission from both parents.

This leads to all sorts of circular loops. For example CAS is reluctant to consider testimony in emotional abuse cases from professionals who have not spoken directly with the children. The abuser has the power to prevent those professionals from seeing the children. Even if one parent hires a therapist to act as a coach to indirectly help emotionally abused children CAS will not consider that professional a “credible witness”. In effect an abuser can use his permission power to prevent a complete CAS investigation of his abuse.

We call this burden of proof standard for evidence of emotional abuse and the default joint parenting stance “loopholes” in the law that allows the emotional abuser to continue his abuse well into separation.