Best Practices for Representing Clients in Family Violence Cases

By Elizabeth Jollimore Q.C.

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Checklists^[1]

Intake

SCREEN CLIENTS FOR FAMILY VIOLENCE, COGNIZANT THAT DISCLOSURE MAY NOT BE IMMEDIATE AND CLIENTS MAY NOT RECOGNIZE MANIFESTATIONS OF ABUSE. ASK ABOUT:

• Physical or sexual assault
• Psychological and verbal abuse
• Controlling behaviour
• Harassment
• Intimidation and threats
• Confinement
• Extreme possessiveness
• Excessive jealousy
• Threatened or actual kidnapping or harm to children, pets or property
• Suicidal behaviour
• Damage or destruction of property
• Removal or withholding of basic necessities of living
• Threats to immigration status
• Restriction of freedom of movement or contact with others
• A history of police involvement
• A history of criminal charges, restraining orders or undertakings
• Prior use of transition housing or shelters
• Identify religious, cultural or family pressure to remain in the relationship or submit to a spouse's authority

ASSESS THE RISK THE CLIENT FACES:

• A history of family violence
• Separation or attempted separation, nearly always by the victim
• Obsessive possessiveness or morbid jealousy by the abusive spouse, often accompanied by suicidal ideations, plans or attempts, depression, sleep disturbances or stalking
• Prior police contact
• Threats to kill, often including detailed modus operandi, communicated to the victim or others
• Prior criminal history
• Excessive drinking or drug use
• Victim had a restraining order
• Access to firearms
• If the abusive spouse is unemployed
• If the victim is living with a child from a previous relationship
• If the partners never lived together

Parenting options

ISSUE

• Sole Custody

  Will the abusive spouse genuinely engage in cooperative decision-making? If not, avoid joint custody

• Access
  • Access should be memorialized in orders or agreements.
  • Avoid ambiguity in orders or agreements.
  • Specify prohibited conduct.
  • Specify exact times and places for pickup and drop-off.
  • Identify a person to supervise, facilitate or perform pickup and drop-off.
  • Consider a mechanism for altering any aspect of the arrangement.
  • Do not give children the discretion to alter access.
  • Minimize or eliminate the potential for access to the child to become access to the parent.
  • Require the abusive spouse to remain a certain distance away from the home or workplace of the abused spouse, the children's school, etc.
  • Unless they must remain secret, each prohibited address should be set out in the Order, along with the prescribed distance (e.g. 100m).
  • Consider whether access should be supervised, even temporarily.
  • If supervised privately, consider a trusted relative, friend or adult babysitter.
  • In higher risk cases, consider supervision by a psychologist, social worker, or through a supervised access centre.
  • Is it appropriate that there be no access?
  • Is the abuse is directed at the child?
  • Does access is benefit the child?
  • Does the abuse affect the primary parent's ability to care for the children?
  • Does access expose the child to family violence?

Trial

EVIDENCE

• Gather any verbally abusive phone messages and apologies for past abuse in messages, cards or letters.
• Obtain corroborating medical records, police incident reports and counseling reports.
• Obtain transcripts of previous family, child protection or criminal trials to ensure that previous events or convictions are not minimized or misrepresented.
• Obtain tapes of 911 calls and calls to domestic violence intervention services.
• Check with school teachers, activity leaders, the parents of children's friends and others: children may confide in them.
• Obtain certificates of conviction relating to prior relationships.
• If the abusive spouse has served time in prison, parole and correctional services files can be subpoenaed. These files can contain information, particularly regarding substance abuse and the success or failure of previous counseling or treatment.
• Contact prior spouses or partners who have been abused.
• Obtain corroborating statements from individuals to whom the abuse was disclosed.
• Relatives, friends, doctors or co-workers may have observed the client with injuries (they may have been provided with false explanations for the injuries by the client).
• The client should record as much detail (without editorial comment) as possible about abuse (dates, places, times, triggering events, the type of assault (kicking, slapping, choking, etc.), exact words spoken or threats uttered (if remembered), injuries suffered and any treatment received, medical attention, individuals to whom it was disclosed, whether children or others witnessed the abuse or resulting injuries) using calendars or other aids to assist in providing detail.
• The client should record details (without editorial comment) of all significant interactions with the abusive spouse on an ongoing basis, particularly abusive conduct.
• Consider retaining an expert in family violence to place the client's evidence in context and testify about the risks from ongoing contact with the abusive spouse and the harm to children exposed to family violence. (A shelter or transition house may provide a referral or offer a worker who can give expert evidence. )
• Any court orders, recognizances or peace bonds and breaches of them.
• Ensure all breaches of orders, recognizances or peace bonds are reported.
• Before retaining an expert, use a database such as Quicklaw or eCarswell to learn how judges regard the expert's testimony.
• Carefully consider whether a custody or access assessment is appropriate. Research and choose an assessor with care.
• Address judicial perceptions about domestic violence.
• Demonstrate the relevance of spousal abuse to parenting.
• Has abuse occurred in the presence of the children?
• Has a child attempted to intervene to protect a parent?
• Has a child been injured in attempting to protect a parent (i.e., shoved aside, struck, dropped)?

Litigation Abuse

BE COGNIZANT OF THE POTENTIAL FOR LITIGATION ABUSE INCLUDING:

• A parent who has never had a primary caregiver role or who has had little regular involvement with the children applying for sole custody;
• A parent seeking joint or sole custody who cannot or will not produce a comprehensive parenting plan;
• Irrelevant or unsubstantiated claims the abused spouse has engaged in infidelity;
• Frequent changes of counsel necessitating adjournments (it is not unusual for an abusive spouse to go through three or four lawyers);
• Drawing out applications over a lengthy period and multiple adjournment requests without good cause;
• Repudiating negotiated agreements shortly after they are reached and resuming litigation;
• Inappropriately requesting documentation such as highly personal medical records without adequate foundation as to their relevance;
• Filing unmeritorious complaints about people involved in the case (judges, counsel, experts, etc.) or making false allegations about a spouse to government agencies;
• Making multiple police reports alleging denials of access even though there is no significant lapse in access;
• Re-litigating previously decided issues;
• Making multiple applications to vary custody, access or support over a short time period (i.e. where less than a year has elapsed since the last application was resolved).

Endnotes

^[1] Adapted from Cynthia L. Chewter, "Best Practices for Representing Clients in Family Violence Cases."

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