Abuse, Trauma, and the Law: Why Staying does not Equal Consent

Misturah (Misty) Oshodi
2 days ago
3 min read

One of the most misunderstood aspects of family violence is this “if it was that bad, why didn’t they just leave?” Or worse: “Why did they go back?”

The reality is that abuse is rarely simple. Neither are the psychological, financial, and legal consequences that follow. It is therefore increasingly important for courts and legal professionals to recognize how the dynamics of abuse can affect an Applicant’s conduct, both during the relationship and after separation.

This article explores why abuse victims may remain in abusive relationships or initiate contact post-separation and outlines the legal remedies available to victims of family violence.

The Psychological Impact of Abuse

Abuse often follows a recognizable pattern known as the cycle of abuse:

i. Tension building

ii. Incident of abuse

iii. Reconciliation or “honeymoon” phase

iv. Calm

During reconciliation, the abusive party may apologize, promise change, or temporarily behave affectionately. This dynamic creates emotional confusion and what is often described as trauma bonding; a psychological attachment formed through intermittent reinforcement of kindness and harm.

Overtime, abuse can lead to anxiety and hypervigilance, low self-worth, learned helplessness, financial dependence, fear of retaliation, and social isolation.

From the outside, remaining in such a relationship may appear irrational. From the inside, leaving can feel dangerous, destabilizing, or impossible.

Why Survivors Stay or Reinitiate Contact

A recurring issue in litigation is the assumption that continued contact disproves abuse. These assumptions often ignore well-documented psychological and socio-economic realities.

There are numerous reasons why victims may remain in abusive relationships, including:

i. Financial dependence: Economic control can make departure practically impossible without legal intervention;

ii. Children: Parents may maintain contact to facilitate parenting time or to avoid being accused of alienation or gatekeeping. This is particularly relevant in high conflict matters.

iii. Safety concerns: Separation is often the most dangerous time in an abusive relationship. Maintaining contact may be a survival strategy intended to de-escalate risk.

iv. Psychological Conditioning: Long-term emotional abuse can erode autonomy and decision-making confidence.

From a legal perspective, continued communication does not negate abuse, and context is critical.

It is important to reiterate that staying in the relationship or initiating contact post-separation is not dispositive. The question is not whether the applicant’s actions were perfectly consistent or strategically neutral.

The proper legal inquiry is

i. Did family violence occur?

ii. Is there a reasonable apprehension of further harm?

iii. Is court intervention is required?

Motive may be argued, but it is not the governing legal test when determining whether protective relief should be granted.

The Legal Framework in Alberta

Under the Protection Against Family Violence Act, RSA 2000 c P-27 (PAFVA), the Court must determine whether "the claimant has been the subject of family violence".

Section 1(1)(e) defines "family violence" broadly to include:

i. any intentional or reckless act or omission that causes injury or property damage and that intimidates or harms a family member,

ii. any act or threatened act that intimidates a family member by creating a reasonable fear of property damage or injury to a family member,

iii. forced confinement,

iv. sexual abuse, and

v. Stalking

The statutory focus is on conduct and risk of harm, not on whether the claimant left immediately, maintained contact, or delayed bringing an application.

Protective Remedies in Alberta

Victims of abuse or violence may seek the following remedies:

1. Emergency Protection Orders (EPOs): Under PAFVA, an Emergency Protection Order may be granted where:

a. Family violence has occurred;

b. The matter is urgent; and

c. There is risk of further harm if protection is not granted immediately.

An EPO can often be obtained on the same day, may be granted without notice to the other party, is initially heard before a Justice of the Peace, and must be reviewed by a Justice of the Court of King’s Bench shortly thereafter. Pending the review, the respondent may be prevented from contacting the applicant and other family members, directly or indirectly.

2. King’s Bench Protection Orders (KBPOs): A King’s Bench Protection Order is also available under PAFVA and appropriate where there are non-emergent ongoing safety concerns, and/or patterns of coercive control. These are typically granted after notice and fuller review.

3. Restraining Orders (Family Law Context): Restraining Orders may be granted in family law proceedings where the applicant establishes reasonable grounds to fear for their safety, property, or the safety of a child.

4. Exclusive Possession Orders: In cases involving the matrimonial or family home, the court may grant exclusive possession to one party. This remedy allows one party to remain in the home while excluding the other, even if both are on title.