Gaslighting — its use as a sword and a shield in Canadian family law

• by David Frenkel

Originally published at The Lawyer’s Daily

Gaslighting — its use as a sword and a shield in Canadian family law

The word “gaslighting” has dethroned “vaccine” as the 2022 Merriam-Webster word of the year. Based on the increased number of searches on for the word gaslighting (1,740 per cent to be precise) it appears to be the new pandemic that Pfizer may now need to find another vaccine for.

According to the Merriam-Webster definition, gaslighting is defined as:

[p]sychological manipulation of a person usually over an extended period of time that causes the victim to question the validity of their own thoughts, perception of reality, or memories and typically leads to confusion, loss of confidence and self-esteem, uncertainty of one’s emotional or mental stability, and a dependency on the perpetrator.

Gaslighting permeates political discourse, academia and more importantly domestic violence, to name a few. In a survey conducted by the National Domestic Violence Hotline in 2014, 2,500 hotline callers were asked about their experiences of domestic violence. In response to the question, “Do you think your partner or ex-partner has ever deliberately done things to make you feel like you are going crazy or losing your mind?” nearly 75 per cent answered positively. And in response to the question, “Has your partner or ex-partner ever threatened to report to authorities that you are ‘crazy’ to keep you from getting something you want or need?” just over 50 per cent of callers answered “yes.”

And thus, it comes as no surprise that the term gaslighting has in recent years started to burn through the fabric of family law as well.

One of the first references of the term gaslighting in a Canadian family law decision was in Shea v. Shea [2017] N.J. No. 169. In Shea, the mother testified that at one of her mental health appointments, the term gaslighting was discussed and defined as a psychological phenomenon or form of manipulation that seeks to make a person question their own memory, perception or sanity. The court also noted that the Child, Youth and Family Services social workers were concerned with suspected domestic violence and an “obvious power imbalance.”

While the term frequently arises as an example of a party’s abusive conduct during the course of the relationship, the existence and extent of gaslighting behaviour can also be incidental to other issues in the case.

For instance, in McBennett v. Danis [2021] O.J. No. 2796, Justice Deborah Chappel addressed gaslighting as part of her parenting analysis. The husband’s gaslighting behaviour arose from him repeatedly creating situations in which the wife felt that she knew the truth, but was so convinced by the husband’s lies that she began to question her own sanity. There was no question in the court’s mind that the husband’s deceptive and manipulative behaviour caused the wife a great deal of emotional trauma and personal upheaval.

Gaslighting may also be a form of emotional child abuse as noted by Justice Nicholas Devlin in S.P. v. B.P. [2020] A.J. No. 613. In S.P., the mother sent her child emails that included vulgarity, attacking the child’s basic self-conception, and gaslighting the child by asserting he was mentally ill for deviating from the parent’s perception of reality. The mother also saw nothing wrong with this type of parenting, which assisted the court in deciding that the best interests of the child was to cease all contact with her.

Abuse through gaslighting can also occur when litigants provide seemingly innocent “facts” in their pleadings, affidavits and by way of their testimony. These “legal” tactics can provide a party the springboard to continue inflicting family violence onto their ex-spouse by using these subtle means. For example, in A.C. v. K.T. [2022] O.J. No. 2003, the father attempted to use gaslighting during the course of litigation against the mother. Justice R. Sonya Jain saw through these attempts and dismissed the father’s criticisms and concerns about the mother’s parenting and characterized them as a form of gaslighting.

Similarly, in Hepburn v. Trimper [2022] O.J. No. 813, Justice Diana Piccoli added gaslighting as part of the father’s pattern of family violence in the same breath as choking, anger control issues and guilt tactics. Family violence reached such a level in that case that the court was concerned about the mother’s emotional, physical and psychological well-being.

Justice Cynthia Peterson took gaslighting to another level in K.K. v. M.M. [2021] O.J. No. 3820, where the court deemed the most appalling aspect of the father’s abusive behaviour was his “insidious gaslighting campaign that he waged against the mother for over a decade.” The court concluded that the father’s abusive behaviour not only caused the mother “... to question her grip on reality — the very essence of gaslighting — but he also masterfully manipulated third parties (numerous doctors, several CAS workers, some police officers, some judges of this court) into believing that she was mentally unstable. He did so, not only to exert control over her, but also to gain advantage in this litigation.”

But for every valid claim of gaslighting, there are also disingenuous attempts to use it in litigation. Therefore, to be effective advocates, lawyers should be careful when assessing claims of gaslighting made by their clients. This occurred in R.V. v. K.M. [2022] N.B.J. No. 122, where Justice M. Deborah Hackett did not find sufficient evidence in the wife’s claims of gaslighting. She found the father to be a more credible witness than the mother and did not find credible the mother’s evidence that the father gaslighted, manipulated, lied and played head games with her. Gaslighting can be used as a litigation weapon to continue inflicting pain on a former spouse or even one’s child. Lawyers on the receiving end of such attacks may want to show the court how gaslighting is being used as an extension of historic family violence. Conversely, family lawyers should also be careful not to blindly advocate for a client who may be using such manipulative tactics against the other side.

By being more aware of how gaslighting affects former spouses within the litigation process, family lawyers can use their advocacy skills more effectively and mindfully in a time when their clients may need them most.

David Frenkel is a partner at Frenkel Tobin LLP and the author of My Divorce Journal: A Guided Path to Moving Forward. This article was written with the research help of Deniz Yilmaz, an articling student at Frenkel Tobin.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.