Best Practices for Representing Clients in Family Violence Cases

Common Judicial Misperceptions about Family Violence

Linda Nielson's study of 5170 decisions from the Reports on Family Law between 1983 and 1996 expected to find abuse mentioned in twenty to thirty percent of reported cases, given the prevalence of family violence in Canada and the fact that high-conflict cases go to trial more frequently than other cases. Instead, she found that partner abuse was mentioned with custody or access in only 182 decisions (three point five percent of reported cases). After reviewing the 182 decisions that mentioned partner abuse, she found that "Canadian judges are commonly dismissing or discounting women's allegations of abuse."[83] The study concluded that the decisions demonstrated either "an appalling lack of concern for the health and safety of abused women or little knowledge or sensitivity to the dynamics of family violence and abuse"[84] on the part of the Courts.

While there has been some progress in the last decade, in this author's view, there are at least three significant myths about family violence that have yet to be dispelled: (a) that family violence stops after separation; (b) spousal abuse is irrelevant to parenting; and (c) true victims of family violence would not permit an abusive spouse to have unsupervised access with their children.

Myth #1: Family violence stops after separation

Family violence does not necessarily end with separation. Forty-nine percent of women in a previous violent relationship reported that the violence occurred or continued after separation. Thirty-four percent reported that the violence actually increased in severity or frequency after separation.[85] In an earlier study, thirty-nine percent of respondents reported that family violence did not start until after separation.[86] Post-separation violence can be severe: the same study found that even where violence started after separation, fifty-seven percent of abused women reported being beaten, choked, sexually assaulted or threatened with a gun or a knife and sixty percent were assaulted more than once.[87]

Paradoxically, women who first report family violence after separation may be disbelieved and accused of attempting to manipulate the legal process to gain an advantage in custody or access disputes.[88]

Myth #2: "But he doesn't hit the kids": Spousal abuse is irrelevant to parenting[89]

Is a father's abusive conduct towards a mother relevant to his ability to parent? Even a decade ago, the answer would likely have been "no," but there is a growing body of research that demonstrates the negative effects of family violence on children. Unfortunately, Courts have been slow to address this issue in custody and access cases.

Men who abuse their spouses are much more likely to abuse their children. Numerous studies have found a strong correlation between wife abuse and child abuse: thirty to sixty percent by Edelson (1997) and seventy percent by Bowker, Arbitell and McFerron (1988).[90] The correlation may be as high as seventy-five percent.[91] There is also a correlation in severity: the more severely a woman is abused, the more severe the abuse of the child.[92] Even if the child is not a direct target, he or she may be injured with blows or objects meant to harm the mother. Infants may be dropped and older children may be injured while attempting to intervene in the violence.[93]

Exposure to family violence is the second most common form of maltreatment of Canadian children, accounting for twenty-eight percent of all substantiated cases investigated by child protection workers in 2003.[94] Many parents think their children are unaware of the violence but research shows that eighty to ninety percent of children indicate the opposite.[95] Children often believe the violence is their fault.[96]

Children who witness family violence are at ten to seventeen times greater risk for such emotional and behavioural problems as bullying, anxiety, aggression, depression, insecurity, destroying property, and post-traumatic stress disorder.[97] The consequences may last throughout their lives: boys whose fathers abuse their mothers are much more likely to grow up to become abusers themselves, while girls are more likely to enter relationships in which they are abused.[98]

A child's well-being is inextricably tied to the well-being of his or her primary caregiver. Intentional acts that undermine the mental and physical health of the primary caregiver should be (but often aren't) treated as intentional acts that are contrary to the best interests of the child.[99] As one abused mother testified in an Ontario case: "I'm trying to raise him and you're trying to destroy me, and that affects him."[100]

Even if there is no direct exposure to family violence, the power and control issues that give rise to it can easily overflow into parenting, resulting in a tendency on the part of the abusive spouse to "dominate, control and coerce the children, rather than to nurture and empower them."[101]

Consistent with this growing body of research, both Ontario and Alberta have legislative provisions that explicitly provide for a consideration of domestic violence, including spousal violence, in a determination of the best interests of the child.[102]

Myth #3: An abused mother wouldn't let her abuser have unsupervised contact with the children.

As discussed previously, the correlation between wife abuse and child abuse is high, but far from one hundred percent. There are many cases where abuse is directed at a spouse but not at the children. Ironically, testimony by an abused woman that she does not fear for her children in her spouse's care may be used to question whether she was abused at all. If she was assaulted as she claims, why would she let her children go with her spouse unsupervised? The research cited earlier shows that men who abuse their spouses may - or may not - pose a physical danger to their children.

Abused women may feel they have no choice but to permit unsupervised access. If judges treat family violence as irrelevant to access, lawyers will advise their clients of this and negotiate accordingly.[103] The current reality, supported by case law, is that the vast majority of abusive spouses have unsupervised access with their children.

Part IV: Conclusion

Family violence cases are among the most challenging for family law practitioners who must find ways to keep their clients safe, craft custody and access arrangements that are truly in the best interests of the children involved, persuade the Courts of the centrality of family violence to custody and access, and deal with an opposing party who often chooses to remain self-represented. Practitioners must familiarize themselves with local programs and services, maintain a working knowledge of the criminal law process and know when and how to utilize civil anti-family violence laws. Fortunately, lawyers who choose to advocate for clients leaving abusive relationships know that the rewards of doing so make the challenges worthwhile.