Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems
(Criminal, family, child protection)
A Family Law, Domestic Violence Perspective
Part 5: Differing Understandings of the Nature of Domestic Violence
5.1 A brief comment on International Human Rights Frameworks
Discussion of the intersection of international human rights law with Canadian family and criminal law in connection with domestic violence, while extremely important, is beyond the scope of this report. Nonetheless, the issue is likely to have ever increasing importance in both family and criminal law matters. Lawyers interested in pursuing this issue may wish to consult the materials in the footnote.Footnote 34
5.2 Understanding Domestic Violence in Multiple Legal Contexts
Lawyers working in the family law sector should appreciate that criminal, family and child protection systems define and understand domestic violence differently. This makes consistent collection and interpretation of information and coordinated action across legal systems a challenge. The criminal law system interprets domestic violence in terms of actions, emphasizing the physical. The family law and child protection systems must, however, consider patterns of behaviour and the implications of those patterns. The following discussion sets out the reasons for the distinctions.
5.3 Why Domestic Violence is Assessed Differently from Other Forms of Violence
Assessments designed to determine responsibility for physical violence between strangers, such as those commonly employed in the criminal law system, will not produce accurate conclusions in a family law context relating to responsibility for domestic violence.Footnote 35 Stranger violence is an action or series of actions. Unlike domestic violence, stranger violence is not normally a cumulative process. One may determine responsibility for stranger violence by determining who initiated the violence, who acted to escalate the violent exchange, or who used the most force. Put differently, responsibility for stranger violence is assessed by determining the primary aggressor in a particular violent exchange. Yet, as research demonstrates, in a domestic violence context, the details of the most recent event are less important - when assessing responsibility, pattern, and effect - than complete information about the cumulative pattern and effects of verbal abuse, domination, coercive control, and violence over the course of the relationship.
By way of illustration, a simple isolated assessment of incidents of violence reported by the woman cited below might lead some to conclude that the mother and father were both responsible for the violence:
I had my bags packed. I went and got supper. Then he started on me. But he was so drunk. He said he was going to call the police. I was scared of the police because he had brainwashed me over the years to think that it was all my fault. I told him he was not calling the police and slammed the phone down. He dialed again. I punched him in the head (and knocked him out.)Footnote 36
The mother reported that the father was so inebriated, he could hardly stand or defend himself. In this particular exchange the female partner had more power and control than the male partner did. Nonetheless consideration of the history and dynamics of power and control in this relationship changes one's perception of responsibility:
He hit me once (before marriage) and I thought it was my fault. I apologized. As the years went on, he beat me up really bad about every six months. The night I left, he had been beating me up about once a week for a couple of years. He was good at it. He never hit me in the face, until the last few months. Then I got black eyes. He locked me out of the television room three years before I left. I was only allowed in if I was not arguing with him, if I cooked supper the way he wanted, if I had not talked back to him. I was not allowed to eat when he ate.Footnote 37
It becomes clear that, although this woman resisted the continuation of the violent relationship with her own violence, and exercised dominant control in the last violent exchange, the domination, control and timing of the onset of the pattern of violence in this relationship resided with the male partner. Unless such patterns and effects over time are considered, primary-aggressor determinations, based on analysis of the last incidents, can produce erroneous conclusions about responsibility. People targeted repeatedly by domestic violence can and do become violent as a result. The phenomenon of 'victim' resistance violence is explained in more detail in part 5.4.2 below.
In addition, some perpetrators are highly manipulative. They learn how to set up targeted partners to engage in violent action. Pertinent behaviours include: altering behaviour at separation or while being monitored (for example while being monitored by supervised access agencies), provoking a violent reaction from the targeted partner or former partner and then calling the police, making spurious complaints to social service and investigation agencies, and engaging in litigation tactics to deflect responsibility and mislead.
The result is the well documented phenomenon of criminal convictions of those who have engaged in resistance violence (see part 5.4.2 below for further discussion).
5.4 Types of Domestic Violence of Less Concern, Family Law/Child Protection Context
While all types of domestic violence should be treated seriously, some types of intimate-partner violence that result in a criminal conviction are of less concern in a family law and child protection context.
Empirical research enables us to identify three primary categories or types of domestic violence: 1) minor, isolated violence - described below at part 5.4.1; 2) victim-resistance violence - described below at part 5.4.2; and 3) coercive (controlling, patterned) violence - described below at part 5.4.3. These categories are purposely less controversial and less complex than those proposed by some domestic violence commentators. The reasons for not endorsing other categories at this time are outlined in the footnote.Footnote 38
Distinguishing among the three basic types of domestic violence has fundamental importance to decision-making in a family law and child protection context in connection with issues associated with parenting and family safety and to understanding differences in cross-legal-sector understandings.Footnote 39
5.4.1 Minor, Isolated Domestic Violence
Minor isolated and non-repetitive domestic violence is common in the non-litigating, general population. This form of violence is not associated with an on-going pattern of physical or sexual violence or with a pattern of psychological coercion and control. Most intimate partners who report this form of domestic violence do not categorize their intimate partnership as abusive. The term refers to minor violence that is not repetitive, that is not characteristic of the person or the relationship, provided that it does not cause harm or lingering fear, and provided that it is not associated with a pattern of emotional abuse, domination, coercion or control. Violence that occurs only at the time of separation is often included in this category. An example of this type of violence is mutual shoving and pushing during a heated conflict, provided that the behaviour is not repeated, is not part of a pattern, and does not reflect or produce one partner's control over the other. Minor, isolated violence - the type of violence that predominates in large scale population studies - differs in quality and effect from coercive domestic violence outlined at part 5.4.3 below.
Caution: One should keep in mind two critical related issues: 1) the earlier caution that patterns of domestic violence are often well established before a single incident is reported and 2) that minor isolated violence is apt to be under represented while coercive, control violence is apt to be over represented in civil (family and child protection) litigation.Footnote 40 Consequently, before one can safely conclude that any act of violence is isolated and minor, detailed scrutiny of accurate and complete information is critical.
5.4.2 Resistance Violence
Resistance violence: Numerous empirical studies document the phenomenon of intimate partners, who have been targeted repeatedly by domestic violence, responding with violence. When this happens it can be very difficult to distinguish the dominant, primary aggressor from the targeted-adult. This is particularly the case in a legal system context, when manipulative perpetrators make use of litigation tactics to create confusion among police, assessors and lawyers.Footnote 41 Resistance violence, as the term is used here, can include:
- Violence used to respond to a perception of imminent threat (This form of resistance violence is often - though not always, depending on the circumstances of the case - recognized as a defence in criminal law cases wherein courts take into account the effects of domestic violence on the reasonableness of perceptions of necessity or the reasonableness of the perceived need to engage in self-defence.)
- Violence that is a response to psychological harm from having been subjected to domestic violence in the past (for example, violence that is caused by heightened states of emotional arousal associated with Post-Traumatic Stress Disorder, violence that is associated with the inability to withstand growing tension in the relationship - the desire to provoke anticipated violence in order to get it 'over with')
- Violence that is associated with resisting the continuance of violence, coercion and control in the relationship (for example the use of violence to 'stand up' to the dominant aggressor in the relationship)
- Violence that is associated with attempting to escape the relationship, for example, at separation
Note, however, that if resistance violence becomes repetitive and part of a coercive, controlling pattern, the necessary interventions may resemble those needed for coercive domestic violence. For an explanation refer to the footnote.Footnote 42
Resistance violence can include initiating violence, including serious physical violence, particularly at separation. Many forms of 'victim' resistance violence will fall outside Criminal Code definitions of self-defence.Footnote 43
5.4.3 Coercive, Controlling Domestic Violence
Unlike minor isolated and resistance violence, "Coercive domestic violence" (also called coercive intimate partner violence) is normallyFootnote 44 a cumulative, patterned process that occurs when an adult intimate or former intimate partner attempts by emotional/psychological, physical, economic or sexual means to coerce, dominate, monitor, intimidate or otherwise control the other. The two concepts 'cumulative' and 'pattern' are central to understanding. The terms refer to the fact that each incident of violence adds to the harm produced by the earlier incidents of violence in an ever, increasing, multiple, and accumulating way. Each additional incident reopens, adds to and magnifies earlier harm. Although primarily a gendered phenomenon targeting women,Footnote 45 coercive domestic violence can be directed against intimate-partners of any gender, in same-sex relationships as well as in opposite-sex relationships. It can only be understood and properly interpreted by examining patterns over time in social and interpersonal context. For discussion of empirical connections between coercive domestic violence and child abuse, see 5.9.
Coercive domestic violence can involve a pattern of emotional, financial or psychological monitoring, domination, degradation, intimidation, coercion, or control without physical or sexual violence. Violent, coercive, isolating and controlling behaviours directed at the targeted family member sometimes alternate with similar behaviours against others who support the targeted person, serving to isolate family members from sources of support, extending the effects of domination and control. Many (a number of researchers assert most) adult relationships characterized by coercive domestic violence also involve sexual abuse.Footnote 46
Violent action is but one dimension of domestic violence; psychological or physical coercive control, surveillance, and emotional/psychological abuse are others. Domestic violence in intimate partnerships has a complex, reciprocal dynamic not found in violence between strangers. It is distinct from stranger violence in that separation, the time during which legal systems are commonly involved, is known to be a time of heightened danger for women. Indeed risk is enhanced by the perpetrator's knowledge of the targeted person's lifestyle and potential sources of support. Moreover, domestic violence differs from other forms of violence in its pattern: it is periodic yet operates in a cumulative fashion. The violence is not necessarily or even usually a daily or even a regular occurrence. Violence and abuse operate together in an interactive manner such that violence is used only when the other forms of abuse, coercive control and intimidation do not suffice. Periods of apparent calm and harmony between episodes of abuse and violence are to be expected. These periods do not negate, however, the danger, the harm, or the cumulative and compounding impact of new incidents which reopen and compound the effects of earlier behaviours. Coercive domestic violence is understandable only as a cumulative pattern in social context and in the context of the evolving power and control dynamics of an intimate relationship over time. Indeed Canadian courts recognize this complexity.
Thus Wilson J., writing for the majority of the Supreme Court of Canada in R. v. Lavallée,  1 S.C.R. 852 (CanLII) recognized the following as central elements of domestic violence in a criminal law context: the imbalance of power
“wherein the maltreated person perceives himself or herself to be subjugated or dominated by the other”; the dependency and lowered self-esteem of the less powerful person; the periodic, intermittent nature of the associated abuse; the clear power differential between battered women and batterers that combine with the intermittent nature of physical and psychological abuse to produce cumulative consequences.
Those who grapple with domestic violence rely on lawyers and courts to interpret coping strategies and behaviours in accordance with the realities of social life associated with domestic violence, including: vulnerabilities associated with gender and culture, socio-economic status, sexual orientation, disability, legal position such as immigration status, degree of access to support networks and to social, economic, and legal resources. For example, in R. v. Lavallée,  1 S.C.R. 852, Wilson J. took judicial notice of the influence on perception and action, in a domestic violence context, of vulnerabilities produced by gender disparity in Canadian society.
5.5 Post-Traumatic Stress Induced Domestic Violence
If the client engaging in domestic violence has been subjected to or exposed to severe or patterned violence in the home, in the community, or in war, consider the possibility of PTS induced violence. Refer the client for a professional assessment. These cases require special analysis, risk assessment, and therapeutic intervention. The client, along with any children in the home, should be assessed for trauma-related harm and treated. Special interventions may be needed to enable the family to heal.Footnote 47 In these cases, it is important for criminal, family and child protection lawyers to integrate referrals for PTSD assessment and intervention into criminal sentences, child protection interventions, and family law custody and access parenting plans.
Although mental illness is not normally a cause of domestic violence, PTSD may be an exception. Certainly researchers are documenting a strong link between the disorder and domestic violence, particularly among returning combat veterans as well as among women who have been targeted by severe or patterned violence in the home.Footnote 48 Indeed, although more research on the issue is needed, it seems likely that stress-induced violence may explain the phenomenon of women subjected to severe or repetitive patterns of domestic violence becoming violent themselves. Given that the condition is said to be treatable in the majority of cases, specialized therapeutic intervention (in addition to domestic violence intervention) will often be warranted.
5.6 Concluding Comments on the Need to Distinguish Types of Domestic Violence
While no one condones violence in any of its forms, it is important to recognize, realistically, the complexities associated with domestic violence. Until we can distinguish accurately, across legal systems, acts of violence that are a reflection of harm caused by domestic violence from coercive, controlling domestic violence, we shall continue to do families, men, women and children a disservice.
In a criminal context, determinations of responsibility for violence are made on the basis of analysis of responsibility for the criminal act or acts of violence. Yet when assessments of domestic violence are limited to analysis of singular or recent incidents, acts of resistance violence can appear to be mutual violence or even coercive violence, when the same violence, more thoroughly assessed in social context and in the context of the pattern of power and control over the course of relationship, is clearly a form of resistance violence.
This is problematic since it results in a failure to distinguish between a dominant aggressor and a victim; it has potential to criminalize people for attempting to escape violent relationships; and it has potential to cause serious confusion and procedural difficulties in a family law and child protection context. Current research indicates that the failure to distinguish dominant aggressor from resistance violence is still a problem, even in specialized domestic violence courts.Footnote 49 Moreover, coercive domestic violence has central importance in family law and child protection contexts because, unlike minor, isolated violence and many forms of resistance violence, it is the form of domestic violence that is linked empirically with child abuse and with negative parenting. For further discussion of this issue, see part 5.10 below.
5.7 Questions That can Help to Distinguish Coercive from Resistance Violence
Expert assessment is advisable, particularly when intimate partners claim to have been subjected to violence by each other. Nonetheless the answers to a number of questions can help lawyers, police officers, and service providers distinguish the violence of 'victims' from the violence of dominant aggressors:
- What has been the pattern of abuse and violence in the family throughout the relationship?
- Was the act of violence committed by the person who holds the balance of power in the family? Who is in control of financial decisions? Who has dominated the relationship?
- Which person initiated abuse and violence at the outset; which party tried (at first) to appease or respond to the demands of the other? Which party's violence and abuse occurred only after the establishment of a pattern of past abuse, violence, domination and control by the other?
- Is there evidence of coercion and control in the relationship (such as setting up or softening the other to ensure compliance with demands, surveillance or enforcement of demands)? What is the pattern, if any, of either party intimidating the other by instilling fear or by destroying self-esteem through patterned degradation?
- Which party controlled decision making, for example dictated: choice of friends; decisions about clothing and appearance; decisions about the type and frequency of sexual expression; or choice of food, purchases, and social activities?
- Who, if anyone, manipulated others (children, relatives, associates, and friends) to turn against the other partner?
- Which party was in charge of rule-making and enforcement?
- Which party sought to socially isolate the other?
- Which party exhibited self-entitlement and expected the other to satisfy them (for example, to engage in sex or provide favourite meals on demand, or subservience and control of the family's economic resources)?
- Which family member has engaged in the most severe acts of abuse and violence in the relationship?
- Which family member has been the most affected by the pattern of abuse and violence in the relationship?
- Which family member was harmed, frightened or intimidated by the abuse or violence? Which family member fears the other?
- Which party's violence or abuse produced lingering fear or caused psychological, physical or sexual distress or harm in the other?
- Which family member, if any, has been violent in other contexts (e.g., violent with strangers or friends, violent with other intimate partners or family members)?
- Was the violence part of a pattern of abuse, violence, domination and control, on the one hand, or was it a response to being targeted by abuse, violence, domination and control in the past ("resistance violence") on the other?
When both parties are abusive and violent, the targeted person's violence will not usually be associated with a prior history of being abusive and violent or with efforts to terrorize, to subordinate, to dominate or to control others.
It is particularly important, when assessing responsibility for the pattern of domestic violence, to assess for coercion and control. See Hon. Jerry Bowles, Hon. Kaye Christian et al. (2008) A Judicial Guide to Child Safety in Custody Cases (National Council of Juvenile and Family Court Judges) online at: http://www.ncjfcj.org/resource-library/publications/judicial-guide-child-safety-custody-cases, Card 2 for a checklist of emotional, financial, physical, and sexual control patterns and a reminder to collect information on pattern, dynamics and relationship history. For an informed judicial analysis of this issue in a family law context, see: T.H. v. R.H., 2011 ONSC 6411.
In addition to coercion and control, one should pay particular attention to client fear. Fear has been verified repeatedly in evaluation research as one of the most dependable predictors of continuing risk of physical violence. (Note, however, that absence of fear is not a reliable indicator of safety.)Footnote 50
5.8 Special Forms of Domestic Violence: Culture, Technology, and Animals
Many forms of coercive domestic violence are specific to cultural context. Examples include the withholding or destruction of mobility or communication devices from those who are disabled, the destruction of immigration papers or withdrawal of sponsorship or threatened deportation of intimate partners involved in the immigration process, the social isolation and exclusion of those who are elderly or disabled, distinct forms of gender-related violence associated with collectivist family and community structures, threats to expose sexual orientation, and the misappropriation of control over financial resources from the elderly. Ideally, lawyers and service providers should consult with cultural experts in each community to ensure inclusion of questions to elicit information about domestic violence pertinent to the cultural makeup of each community.
Stalking and monitoring using modern technology (computers, cell and smart telephones, geo positioning equipment attached to vehicles, audio enhancement tools and tracking systems) are a growing concern. Indeed stalking via modern technologies is now such a regular occurrence as to be characteristic of many coercive domestic violence cases.Footnote 51
Cruelty to animals is also associated with coercive, controlling domestic violence. Animal cruelty is used in some cases to terrorize intimate partners, to coerce a return to the relationship, or to punish, control, or silence children.Footnote 52
While lawyers in a family law context should be attentive to gathering information on such issues, because these forms of coercive domestic violence are pertinent to accurate assessment of pattern, nature and severity, remain aware that information will not always be collected in a criminal context since not all of such behaviours are criminal in nature. In addition, not all police officers have specialized training in the collection of various forms of evidence pertinent to a coercive domestic violence context.
Implications for family lawyers:
Check for particular forms of domestic violence specific to each client's culture
Ask questions about abuse and/or cruelty to pets and livestock, obtaining if possible veterinary records
Consider the need to have an expert check for monitoring devices on the family car and on other sources of transportation
Ask questions about both parties' familiarity with and use of modern technologies; provide information on how to avoid being monitored/stalked via modern technology. Clients targeted by domestic violence should be advised to replace cell and smart phones as well as computers. If a client insists on retaining an existing cell or smart phone or computer, he or she should be instructed on methods to prevent harassment and stalking (e.g. keeping the phone turned off except when in secure surroundings;Footnote 53 obtaining a new email address; using a friend or colleague's computer until the computer or phone has been checked for 'malware', tracking and monitoring devices; installing anti-spyware and anti-virus programs.
Clients can also be taught how to collect and convey detailed records of incidents of suspected digital stalking or digital harassment.Footnote 54 The 2013 Domestic Violence Handbook for Police and Crown Prosecutors in Alberta includes helpful suggestions.
If monitoring/stalking/harassment devices or evidence are found, consult the client about turning the information over to police in connection with the possible laying of criminal charges for criminal harassment (section 264) or a privacy offence (Part VI) of the Criminal Code, RSC 1985, c C-46) and/or, when applicable, violation of an existing no-contact order. Consider also the potential for a civil action based on invasion of privacy.
Consider providing information and resources to help clients protect themselves from digital harassment and stalking, and to enable collection of evidence. Resources are identified in the footnote.Footnote 55 See particularly: Jennifer Perry (2012) Digital stalking: A guide to technology risks for victims (Bristol: Network for Surviving Stalking and Women's Aid Federation of England) on line at http://www.domesticviolence.co.uk/wp-content/uploads/2012/05/Digital_stalking_A_guide_to_technology_risks_for_victims_2012.pdf
Additional remedies are now available to 'victims' of digital harassment in Nova Scotia pursuant to the Cyber-Safety Act, S,N.S. 2013, c 2
Note the need:
- To retain evidence of digital stalking for presentation in the family law and or child protection proceeding (as well as in the criminal proceeding), and
- To consider any evidence of monitoring or stalking in connection with assessment of risk and danger (see parts 6 and 7 below) and provisions enabling contact with children
Caution is warranted, however, in connection with a client gathering information from another party's cell phone or computer. Two Supreme Court of Canada decisions, R. v. Cole, 2012 SCC 53 and R. v. TELUS Communications Co., 2013 SCC 16, and a Court of Appeal decision in Québec, Droit de la famille – 131908, 2013 QCCA 1206, identify privacy interests associated with cell phone 'texting', emails, and the contents of computers. Cell phone 'texting' is identified as private communication requiring police wiretap authorization for interception in R. v. TELUS Communications Co. While the two Supreme Court of Canada decisions focus on police powers in a criminal context, and privacy rights are apt to be less onerous in a family context, the rulings may have other implications. For example, if a person, who is not a party to the communication, intercepts another person's texting messages without colour of right or permission, the interception could be found to be illegal. In addition, taken together, the cases suggest the need for a nuanced analysis and admission process to weigh privacy interests in cell phone and computer records against the right to introduce relevant evidence in family and child protection cases. For example the Cour D'Appel (Québec) endorses a balancing of rights to information and duties relating to disclosure, in a family law Divorce Act case, against privacy interests in emails and sets out a process to resolve these issues in Droit de la famille – 131908, 2013 QCCA 1206.
5.9 Implications of Differences in Criminal and Family Law Understandings of Domestic Violence
When lawyers and other professionals in the criminal law system on the one hand, and domestic violence experts, lawyers and other professionals in the family law system on the other, talk of 'domestic violence' they are not always talking about the same thing. Many legal definitions of 'domestic violence' do not reflect social and cultural realities of patterned coercive domestic violence as outlined here. The Criminal Code of Canada prohibits particular types of action. Some of those prohibited actions (for example, assault) can be associated with a pattern of coercive domestic violence. Yet definitions that focus on incidents or distinct actions are problematic because they can produce erroneous conclusions about responsibility and level of risk. More particularly, the definitions can result in the criminalization of those who engage in resistance violence as well as in the criminalization of men and women who engage in minor, isolated acts of violence at separation.Footnote 56 The practical result (from a domestic violence evidence-informed family law perspective) is a criminal system that overreacts to minor, isolated acts of violence and to resistance violence, on the one hand, and that (as a result of the focus on incidents rather than patterns) under reacts to the pattern and severity of coercive domestic violence, on the other.
These over and under reactions can have serious implications in a family law and child protection context, particularly when an accused, who engaged in resistance violence, has been the primary caregiver of the children. In such cases, routine criminal provisions such as no contact and exclusion from the marital home will have serious implications for children and for family courts seeking to provide for children's best interests. For an illustration and judicial comments on this issue, see Shaw v. Shaw, 62 RFL (6th) 110, 2008 ONCJ 130.
5.10 Connecting the Focus on Pattern and Type of Violence to Children
In criminal cases, acts of domestic violence matter only to the extent such acts are prohibited and defined in the Criminal Code. In family law cases, lawyers, assessors, service providers and judges have more latitude. In part, this is because the evidence of violence serves a different purpose. Punishment has little relevance. Instead the goals are safety (family and procedural) and the best interests of the child. While any violence between intimate partners is serious and relevant to assessing safety, violence that occurs as part of a pattern of domination, coercion and control is: more dangerous, more persistent and more likely to be associated with negative or even abusive parenting.
Violence that is a response to past domestic violence in the family, on the other hand, will often stop once assistance is provided, and safety and security are assured.
Detailed contextual analysis does not exclude men who are victims of coercive, controlling domestic violence. It does help us, however, distinguish those who require protection from those who claim to have been subjected to violence or abuse in order to excuse or rationalize their own violence.
Moreover, in a family law context, complete information is needed to ensure that parenting issues affecting the safety and well-being of children are taken into account and to ensure due process in connection with mediation and settlement. Coercive forms of domestic violence are linked empirically both with negative parenting practicesFootnote 57 and with direct forms of child abuse. Indeed research reports from western legal jurisdictions are reporting appreciable overlap between engaging in domestic violence and engaging in child abuse. The most commonly cited statistic is that between 30% and 70% of children exposed to domestic violence are also subjected to child abuse. The variation across studies depends in large part on whether or not research evaluations include emotional and psychological as well as physical and sexual child abuse.Footnote 58
Children need not directly witness domestic violence in the home to be adversely affected. The operative factor, identified by medical child development experts, is the level and effects of stress in the home.Footnote 59 Failure to respond appropriately can have life long and even generational implications.
In addition to correlations with child abuse, researchers are documenting negative parenting patterns among parents who engage in coercive domestic violence. Not surprisingly, in addition to high correlations between physical domestic violence and physical child abuse, these negative parenting patterns tend to mirror the particulars of the psychological, coercive elements of the domestic violence. Detailed discussion of this issue lies beyond the scope of this report, yet some examples include:
- the likelihood of high levels of perpetrator coercion and control of children in cases involving high levels of coercion and control of intimate partners
- the likelihood of the use of excessive physical, disciplinary force against children in cases involving patterns of physical violence against intimate partners
- the likelihood of contact with children being used to monitor the whereabouts and activities of the other parent in cases involving stalking, monitoring, and coercive control of intimate partners
- the likelihood of sexual denigration of children in cases involving sexual denigration of intimate partners
- the likelihood of the use of contact with the children to undermine or to psychologically denigrate the child and/or the child's relationship with the other parent in cases where denigration patters are associated with the coercive domestic violence
While not all parents who engage in coercive domestic violence will engage in the negative parenting patterns identified here and in empirical research, the failure to check for and to respond to their presence in parent-child access provisions can seriously undermine a child's well-being. Family lawyers may wish to consult Lundy Bancroft, Jay Silverman and Daniel Ritchie (2012) The Batterer as Parent Addressing the Impact of Domestic Violence on Family Dynamics (2nd edition, Shaw) for additional information.
Nonetheless the risks of contact for children, it goes without saying, must be balanced with consideration of the protections against harm offered by secure, child-parent attachments.Footnote 60 Children may have strong emotional attachments with the violating parent, despite the domestic violence. Strong attachments with both the targeted parent and with the perpetrating parent can, in some cases, enhance the child's resilience to harm from exposure to violence (provided that the relationship does not cause continuing stress, does not undermine the child's relationship with the non-abusing parent, does not undermine therapeutic assistance to the child, and can be made positive and safe). Consequently, domestic violence experts seldom recommend severing children from contact with violating parents entirely unless such contact:
- offers no benefit to the child
- is resisted by the child (subject to considerations associated with parental manipulation, a complex issue, beyond the scope of this report)
- is not and cannot be made emotionally and physically safe for both the custodial parent and the child.
If the relationship with the violator offers positive benefits, the goal is to make contact safe. The following child-centered principles and priorities are proposed for domestic violence custody and access cases:
- Priority 1: Provide safety and protection for children.
- Priority 2: Protect safety and well-being for the victim parent.
- Priority 3: Respect the right of adult victims to direct their own lives.
- Priority 4: Hold perpetrators accountable for abusive behaviour.
- Priority 5: Allow children access to both parents.
While the preferred option is attainment of all five priorities in this model, priority five (maximizing contact) is conditional on satisfaction of priorities 1 through 4.Footnote 61 See also Justice E. Murray's analysis of these issues in Naylor v. Malcolm, 2011 ONCJ 629 (CanLII).
With these priorities in mind, the custody and access order recommended by domestic violence experts in coercive domestic violence cases most often is the granting of sole physical and legal custody to the targeted parent with supervised access granted to the domestic violator, until safety and the benefits of unsupervised access can be assessed and assured. As a general rule, domestic violence experts recommend against awarding custody (including shared, joint or parallel custody) to parents who engage in coercive domestic violence. In the absence of coercion, pattern and control, however, for example in cases of minor, isolated minor violence or resistance only violence, the choice of custody and access remedy - from full and joint custody to specified access - will depend on case particulars, including the level of parental conflict and the level of stress contact creates for the child.
Note, however, that these results are not necessarily assured in practice in family law cases, partly as a result of documented settlement patterns in these cases. For further discussion of settlement issues, see part 8.6 below.
5.11 Connecting Family Law's Focus on Pattern and Type of Domestic Violence to Procedural Justice
Coercive domestic violence can have a profound effect on a person's ability to participate equitably in settlement processes. More particularly, domestic violence can cause long-term heightened apprehension, lingering fear, as well as long-term psychological harm resulting in a loss of self-esteem, a reduced ability to respond assertively or to withstand settlement pressure, as well as a number of psychological conditions that can only be diagnosed by a mental health professional. Medical health and psychology experts tell us that trauma-induced harm does not end simply because the trauma ends; trauma-induced harm must be remedied therapeutically in safe, supportive surroundings.Footnote 62 In addition to the continuing effects of harm, a related concern, documented in empirical research, is the tendency of coercive domestic violence to create heightened vulnerability to settlement suggestion.Footnote 63
Consequently, in addition to child safety and welfare, the pattern and type of domestic violence matters when assessing procedural matters such as the suitability of settlement processes. See part 8.6 for additional discussion of settlement issues.Footnote 64
5.12 Reconciling Definitions Across Systems
Many Canadian and foreign jurisdictions are responding to definitional problems at the intersection of criminal and family law by adopting a number of policies and practises namely: ensuring that police officers and Crown prosecutors receive specialized domestic violence training; discouraging dual charging; and replacing primary aggressor with dominant aggressor charging policies. While the distinct evidence requirements of the separate legal systems make it difficult, if not impossible, to implement common definitions and risk assessments across legal systems, these types of initiatives can help to move our legal systems toward a common conceptual framework.
Dominant aggressor charging policies take into account patterns of coercion and control associated with the abuse and violence throughout the relationship (factors such as those identified at parts 5.3 through 5.7 above). Such policies can help police and Crown distinguish perpetrator from targeted adult behaviour. Primary aggressor policies, on the other hand, tend to focus on responsibility for singular or the most recent incidents of domestic violence. As we have seen, the result can be criminalization of resistance violence.
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