Getting Caught In An Unenforceable Boundary

May 16, 2022
Axis Geffen

Article written by Axis Geffen

Often in family law, we see contracts between parties that are not always brokered by counsel, acceptable, or in some cases even legal. Until reviewed by legal counsel, these “contracts” or “agreements” are not resolved. In some cases, a client will purposely leave such an “agreement” out of a conversation with their lawyer. That’s a bad idea! Your legal team is there to support you without judgment. However, they can only help you if you disclose EVERYTHING to them.

These “agreements” usually pop up when one party wants something (that often they would be entitled to), but the other party doesn’t want to concede. The couple makes an “arrangement” and they follow a secret set of rules. Consulting with a lawyer could give them the support they need to proceed with what would otherwise be considered an unenforceable boundary.

Spotting an Unenforceable Boundary

Many homes have one spouse that smokes or drinks alcohol or both to excess. Over my years as a PI, I’ve learned of many cases where the other spouse will plead with their counterpart. They ask them to stop, cut back, or do these activities out of the home. It’s not often a cut and dry, “No problem dear, I’ll comply because I love you more than [insert the concern here]”. In many cases, arguments arise and at times violence is an issue. However, trying to use force stop the behaviour (police, etc.) can be very stressful and ineffective. E.g. the police won’t attend your home every time your spouse lights a cigarette. This leaves one spouse caught in an unenforceable boundary.

I’ve also seen a written “agreement” between two (2) separating spouses where one spouse was leaving the other to start a new life. That spouse was required to return to the marital home on a set frequency to sexually service the spouse that they left. In return, the receiving spouse “promised” not to contest or disrupt the pending divorce.

Yes, that happened. It came out in a court proceeding. Yes, the leaving spouse was surprised to find out it wasn’t a legally binding agreement. Yes, the receiving spouse was charged and convicted based on the transactions. Beyond all of that, it happened. These unenforceable boundaries continue to create themselves every day when people that need good, reliable legal counsel, resort to making “deals” with the devil out of a fear of the process, the options, the costs or the unknown.

Legal Solutions

However, there is hope! The legal system is continuing to evolve. More courts are beginning to recognize the risks and dangers of some of these “unenforceable” boundaries. As a result, family legal teams continue to succeed in finding “enforceable” boundaries to replace them.

Although the Government of Canada has yet to make a solid enforceable judgment, they do offer some free resources to work towards a smoke-free environment. However, there have been courts around the world that have deemed smoking around children to be child abuse. This has impacted child custody because the health and safety of the child is a critical factor in assigning custody. Further to this, smoking, doing drugs, and drinking alcohol in excess are all things that pose serious potential health risks to the family. While there are currently laws prohibiting smoking in vehicles near children, workplaces, common areas of buildings, etc., the family home remains up for debate. However, by consulting solid legal counsel, you have the best opportunity to establish ground rules and make them enforceable.

Many people watch TV or movies or talk to those around them for answers. They tend to avoid going straight to a lawyer with training and experience in dealing with these issues. As a PI, I see this frustration because many people, including some lawyers, never inquire about what options exist for a PI to build evidence to support their case. At the end of the day, you can be stuck up against an unenforceable boundary indefinitely or you can seek out a solution from someone that does that for a living. Often answers exist. You just need to look in the right place.