By Paul Russell, AdvocateDaily.com Contributor
When people in a family law dispute make addiction or abuse allegations against their partner, those claims have to be treated with respect and caution, says Fredericton family lawyer Jennifer Donovan.
“With new clients, at least one in three allege intimate partner violence or domestic violence of some kind,” says Donovan, principal of J. Donovan Law Group.
“As counsel for the alleged victim, part of my job is to cushion the reality that the claims will likely be brushed over by the court,” she tells AdvocateDaily.com.
“It’s one thing to claim abuse, but it’s another to prove it,” Donovan explains.
In some cases, the claimant is just not being truthful or has exaggerated the incident, thinking that will play in their favour, she says.
“I tread lightly with these files,” Donovan says.
Abuse allegations typically come up at the first appointment, when the client is discussing the reason for the separation, she says.
“Under the Divorce Act, one of the grounds is physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses,” Donovan says.
Drawing on her 14 years of experience in this area, Donovan says she tactfully discusses the abuse allegations with her client, as she tries to determine if they will stand up in court.
“You always have to do your homework, and be informed before you press forward, she says.
“In my whole tenure of practice, I’ve only been involved in one case of physical violence that I personally saw the results of it the day after it happened,” Donovan says, recalling the badly bruised face of a mother of two young children.
Addiction claims are also difficult to prove in court, she says, though they are becoming more prevalent.
“The range of addictions has expanded significantly in recent years as we are not only dealing with drug and alcohol addictions but gambling, video game and pornography addictions as well,” Donovan says.
In cases involving custody and access, she says counsel has to prove the addiction is interfering with a person’s ability to parent.
“If the alleged addiction does not impact on that ability, then why even advance this information,” Donovan says, “because it’s not going to make an impact on the final determination.”
The difficulty of defining an addiction is another reason to be very cautious about making this claim, she says.
“If someone plays video games for an hour at night after work, is that an addiction?” Donovan asks.
“You don’t want to lose credibility with the court, by making accusations that you know you can’t prove, or that at the end of the day are completely irrelevant,” she says.
With abuse allegations, Donovan says experienced lawyers can listen to a client’s allegations, then tell them if the claim will hold up in court.
“Part of my job is to say, ‘I understand where you’re coming from and why this is important to you, but there are rules of evidence that we all must abide by,’” she says.
Donovan says that while most of those alleging abuse are female, it’s becoming more common to have male clients come forward with claims of physical, psychological and verbal abuse.
“The difference is that typically the males just want me to know about it, and not act on it,” she says.
She urges men to speak out if they are suffering abuse at the hands of a partner.
“As a lawyer, it’s part of my job to assure them that they have a platform, as abuse is equally wrong against men,” she says. “They should not be ashamed of it.”
Donovan says the New Brunswick legislature recently passed legislation dealing with emergency intervention orders, “specifically designed for immediate action when there are allegations of domestic violence within a family.”
She says the catalyst for that bill was likely the large volume of abuse allegations being heard by authorities.
“Women have become more empowered to speak out about it, and not to be ashamed or humiliated,” Donovan says.
“Everyone needs to know that it’s OK to speak about it,” she adds. “No one should have to suffer abuse at the hands of a partner.”