The Intersection of Credibility and Stereotypes in the Family Violence Context

Author E.D.

Family violence is defined broadly in the Divorce Act, including any conduct “that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour.”^[i] This includes psychological abuse and financial abuse.^[ii]Family violence has been recognized by the Supreme Court of Canada (SCC) as being “notoriously difficult to prove.”^[iii] Women reporting family violence face difficulties when it comes to credibility, in part due to pervasive stereotypes, which have gone largely unacknowledged by the courts. There are not yet explicit acknowledgment or denouncement of such stereotypes relating to family violence from the SCC. An important, pervasive stereotype is that women may be making exaggerated or even false claims of family violence with the goal of obtaining the upper hand in family law proceedings.^[iv] Underlying this stereotype is the idea that women are “manipulative, vindictive, and deceitful, particularly towards their ex-partners.”^[v] Bias continues to persist regarding these fallacies and affects judicial decisions, partly because these stereotypes have largely gone unaddressed by the courts. 

One such case dealing with the issue of credibility in the family violence context is R.L. v M.F., a lengthy Ontario Superior Court decision regarding a complicated divorce between an immensely wealthy couple.^[vi] The credibility of the witnesses is a substantive element of this case, as arguments made by both sides largely involve attacks on the other side’s credibility.^[vii] The Court goes into a detailed analysis of both the mother’s and father’s credibility in relation to the various allegations of family violence coming from both partners, as well as a variety of different issues arising in this dispute. This case is a good illustration of the extreme difficulties that decision makers face when it comes to assessing the credibility of family violence allegations and the appropriate weight that should be given to them when making determinations of parenting time, spousal support, and other related matters.

The Court in R.L. v M.F. determines the credibility of the parties by considering the “honesty [and] veracity” of their testimony, using “consistency, reference to internal and external sources of information, and common sense to determine what findings I make.”^[viii] In R.L. v M.F., the Court had an immense task ahead of it, having to parse through massive amounts of evidence. For each piece of evidence and for each allegation, the Court had to determine what was credible. Importantly, the Court states that “I remind myself that I must be careful to avoid reliance on myths and stereotypes about the manner in which allegedly abused and controlled persons can be expected to act.”^[ix] While it is commendable that the Court acknowledges the myths and stereotypes about the typical battered woman, the Court fails to challenge the stereotypes relating to women and their claims of family violence.

Furthermore, the Court in R.L. v M.F. gives a comprehensive summary of its conclusions on the credibility of the evidence given by each parent. For example, the Court is skeptical of the father’s credibility in terms of the installation of spyware in the home, telling the assessor “that he never used spyware in the [h]ome. Yet the evidence is clear that he purchased a spyware kit that included both spyware and anti-spyware.”^[x] This example and various other key instances led the Court to conclude that the credibility of the father was deficient. Additionally, the Court reaches similar conclusions regarding the mother’s credibility. The Court finds that the testimony of two expert witnesses refutes most of the “exaggerated and even hyperbolic descriptions of the father,” noting that many of her claims lack corroborating evidence.^[xi] Given the lack of corroborating evidence and the expert testimony, the Court is “careful about accepting those claims [of emotional and financial abuse] at face value.”^[xii] The Court ultimately finds that “the mother has failed to prove that [the father] is a perpetrator of family violence as broadly defined in the Divorce Act.^[xiii] The Court also finds that “the [m]other's failure to support the [f]ather's relationship with the children,…does not mean that they are the victims of parental alienation.”^[xiv]

In family law cases, the courts are faced with a considerably difficult duty in combing through the evidence to make their determinations on the credibility of witnesses. Ultimately, it is highly fact-specific and will largely depend on the case. It is difficult to deal with potentially serious allegations that are extremely difficult to prove, especially when certain aspects of family violence, such as coercive control, focus on a pattern of behaviour rather than specific incidents.^[xv] Difficulty in proving family violence can be compounded by the stereotypes about women when it comes to these allegations, and the legal system in Canada is not yet at a point where such stereotypes have been widely acknowledged and cast aside by the judiciary. Because these stereotypes go largely unacknowledged, it is sometimes difficult to determine if decision makers have been letting these stereotypes influence their reasoning. K.M.N. v S.Z.M. is an ideal example of a case where stereotypes were rejected and acknowledged to have influenced the trial Judge’s reasoning. In K.M.N. v S.Z.M., the British Columbia Court of Appeal (BCCA) ordered a new trial because of the trial Judge’s reliance on and acceptance of stereotypes presented by the father.^[xvi] The BCCA states that “[t]o approach allegations of family violence on the assumption (explicit or implied) that these allegations are routinely made for tactical reasons, is impermissible and will give rise to reversible error.”^[xvii] While this case is an excellent step in the right direction, there is a need for more judicial acknowledgement and denunciation of these stereotypes across the provinces and at the national level. It is important to remember that recognizing stereotypes does not mean that all family violence claims should be taken at face value. Courts must still engage in a credibility analysis, and in R.L. v M.F., the Court engaged in an extensive credibility analysis and ultimately determined that the mother’s family violence claims could not be taken at face value.^[xviii]

Family law proceedings frequently involve emotionally charged situations, where determinations made by courts are highly fact-dependent. The ultimate balancing act must be done by each individual court, and it is ultimately up to the court to decide what weight to give to each piece of evidence and each allegation. While the SCC has acknowledged the ‘twin myths’ in relation to sexual violence, no such recognition of the stereotypes women face in the family law context has occurred.^[xix] While the Court in R.L. v M.F. ultimately did what it could with current legal precedent, and K.M.N. v S.Z.M. is a step in the right direction, lower courts need guidance from the SCC on how to handle pervasive stereotypes that women face in family matters. Recognition and abandonment of these stereotypes from the SCC is long overdue.

Endnotes:

^[i] Divorce Act, RSC 1985, c 3 (2nd Supp), s 2(1).

^[ii] Ibid.

^[iii] Barendregt v Grebliunas, 2022 SCC 22 at para 144.

^[iv] Jennifer Koshan, “Challenging Myths and Stereotypes in Domestic Violence Cases” (2023) 35:1 Can J Fam L 33 at 43-44, 76 [Koshan].

^[v] Ibid at 44.

^[vi] R.L. v M.F., 2023 ONSC 2885 [R.L. v M.F.].

^[vii] Ibid at para 118.

^[viii] Ibid at para 124.

^[ix] Ibid at para 124.

^[x] Ibid at para 150.

^[xi] Ibid at para 150.

^[xii] Ibid at para 150.

^[xiii] Ibid at para 206.

^[xiv] Ibid at para 208.

^[xv] Koshan, supra note 4 at 75.

^[xvi] K.M.N. v S.Z.M. 2024 BCCA 70 at para 114, 122, 127.

^[xvii] Ibid at para 126.

^[xviii] R.L. v M.F., supra note 6 at para 150.

^[xix] The twin myths are that a complainant’s sexual history makes them: 1) more likely to consent to sexual history and 2) less likely of belief. (see Criminal Code, RSC 1985, c C-46, s 276(1)); Koshan, supra note 4 at 73.