Research in Brief

Family Violence: Relevance in family law

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September 2018

Introduction

This report offers an examination of data on violence within families, highlighting how it may be a relevant factor to consider in a family law dispute. In a family law context, violence, abuse and neglect within families can have wide ranging, long-term effects. Family and criminal courts may offer contrary rulings that confuse and frustrate matters and may put family members at risk. And ultimately, there are costs – both financial and human.

Family violence is common

Family violence is more common than many people may realize. The language and terms have changed over the years, partially to reflect society’s growing awareness of the seriousness of the violence. Family violence may also be called domestic violence, spousal violence, conjugal violence, or intimate partner violence (IPV), and may also include elder abuse and child abuse. Abuse within families can cover a spectrum of behaviour that includes emotional abuse, controlling behaviour, stalking, physical violence, sexual assault and homicide.

• In 2015, police reported over 86,000 people in Canada experienced family violence, representing over a quarter of all people subjected to a violent crime^{Footnote 1}.
• In the 2014 General Social Survey (GSS) on victimization, 4% of Canadians living in the provinces with a current or former spouse or common-law partner (approximately 760,000 people) reported having been physically or sexually abused by their spouse during the preceding five years^{Footnote 2}.
• A 2017 study found that 12% of residents of the territories reported being subjected to spousal violence by a current or former spouse or common-law partner in the previous five years^{Footnote 3}.
• About 284,000 women (one in fifty Canadian women aged 15 and older) experienced stalking by an intimate partner in the five years previous to the 2014 GSS^{Footnote 4}.
• Family violence is highly gendered. About 74% of people who report being stalked by an intimate partner - a current or former spouse or common-law or dating partner - are women^{Footnote 5}.
• According to the 2014 GSS, 35% of survivors of spousal violence reported being pushed, grabbed, shoved or slapped. About 25% reported having been sexually assaulted, beaten, choked, or threatened with a gun or a knife. A similar proportion (24%) reported having been kicked, bit, hit, or hit with something^{Footnote 6}.
• Women reported being subjected to the most severe types of spousal violence more often than men^{Footnote 7}.

Violence often occurs after separation

There is growing understanding that it is not always easy to leave an abusive situation. In fact, the most dangerous time for a victim/survivor of violence is immediately after separation. In some cases, violence begins or intensifies after separation. From 2007 to 2011, a woman’s risk of being killed by a spouse she was separated from was nearly six times higher than the risk faced by a woman from a spouse she was living with^{Footnote 8}.

• 13% of people who were separated reported experiencing spousal violence by a former spouse in the previous five years, compared to 2% of people who reported spousal violence in their current relationship^{Footnote 9}.
• Of people who reported being subjected to spousal violence after separation, 16% of survivors reported that the violence started once they were living apart^{Footnote 10}.
• Almost half of survivors (49%) indicated that violence increased in severity after the breakup of the relationship^{Footnote 11}.
• More than 90% of offences involving criminal harassment and harassing or indecent phone calls were committed after a separation^{Footnote 12}.

People rarely report violence to the police

People sometimes question why survivors of violence don’t report assaults to the police. The reasons are varied – from fear that no-one will take them seriously, to concern that reporting will result in embarrassment or cause violence to escalate. Survivors may consider the violence to be a private matter that is not something for the police to deal with. In some cases, they may want to protect the perpetrator’s reputation, or they may want to avoid repercussions within their communities. Data show that it is more common for survivors not to report than to report.

• Only one in five (19%) persons reported their experience of spousal violence to the police while one in ten (10%) reported that the police became aware of the violence in some other way^{Footnote 13}. The majority (70%) of people who experienced spousal violence never alerted the police about the abuse^{Footnote 14}.
• The police were not informed of the violence in 76% of cases where the violence was directed at a man and in 64% of cases where the violence was directed at a woman^{Footnote 15}.

Effect of obtaining protective orders or laying criminal charges

Where there is a risk of violence, individuals may request protective orders, such as a restraining order, for their own personal safety. If they are targeted by violence that is also a criminal offence, they may also request that criminal charges be laid. Data show that these options are not widely used, and that they may not always have the desired effect.

• Only 22% of cases of stalking by an intimate partner that were reported to the police resulted in charges being laid^{Footnote 16}.
• According to the 2014 GSS, 19% of women reported they obtained a restraining order against their current or former spouse, a rate four times higher than the number of men (5%) who reported obtaining such an order^{Footnote 17}.
• In 37% of intimate partner stalking cases reported to police, restraining or protective orders were obtained^{Footnote 18}. Almost half of the time, these orders were violated (47%); about 78% of people who experienced such violations, reported the breach to police^{Footnote 19}.

Violence is relevant to the family justice system

Some forms of family violence may be criminal in nature, while others do not constitute a criminal offence. It is important to note that family violence may be raised in a family law dispute, whether or not the family violence was reported to police or child protection authorities. There is often inadequate sharing of information among different courts so judges may not be aware that people facing criminal charges in one court are also arguing for custody in another. Decisions from different courts may contradict each other and confuse or frustrate families^{Footnote 20}.

• The Canadian Research Institute for Law and the Family (CRILF) conducted a review of data collected in 2011 and 2012 related to 328 court files of ‘complex’ divorce cases in Alberta where the divorcing couples had at least one child. Family violence was mentioned in 14.6% of the files examined^{Footnote 21}.
• In a 2013 Department of Justice report, a review of court files where the court made a final determination on custody issues between 2000 and 2005, revealed that family violence was mentioned in 8% of divorce cases^{Footnote 22}.
• In a 2016 Canadian survey of family law lawyers and judges, lawyers reported that family violence was an issue in 21.7% of their cases, while judges reported it was an issue in 25.3% of their cases^{Footnote 23}.
• Studies from the United Kingdom (UK) suggest that data collected from self-reported surveys show higher rates of violence in divorce cases than what is indicated by data obtained from court case reviews or lawyer-reported surveys^{Footnote 24}.
• The 2016 survey results noted that 93.9% of judges and 68.8% of lawyers reported that in family law cases involving violence, parties in family court were occasionally or often dealing with criminal offences at the same time^{Footnote 25}.
• Survey respondents indicated that the most common family law court responses to family violence was by making a civil order restraining harassment or regulating contact between the parents (lawyers = 54.7%; judges = 71.0%), denying custody to the abusive parent (lawyers = 38.7% judges = 50.0%), and ordering access supervision (lawyers = 36.2%; judges = 54.6%) or exchange supervision (lawyers = 30.4%; judges = 48.5%,  and making use of counselling services (lawyers = 37.3%; judges = 23.3%)^{Footnote 26}.

Children are often exposed to violence

Violence can have a profound effect on children. Children who witness violence or are victims of abuse are at risk for long-term physical and mental health problems^{Footnote 27}. Children can suffer from post-traumatic stress disorder (PTSD) and can struggle to develop the skills for life-long trusting relationships^{Footnote 28}. They may be at risk for experiencing or perpetuating violence in their own future relationships as adults^{Footnote 29}.

• 51% of parents who reported experiencing spousal violence also reported that their children may have heard or seen assaults on them^{Footnote 30}. Child protective services were alerted in 31% of situations where a child witnessed the spousal violence^{Footnote 31}.
• About 72% of individuals with children who experienced violence after separation indicated that a child had seen or heard the violence^{Footnote 32}.
• The 2008 Canadian Incidence Study of Reported Child Abuse and Neglect (CIS) studied incidents of child maltreatment involving children 15 years and younger as investigated by child welfare systems. The categories of child abuse identified most frequently as the primary child welfare concern were exposure to IPV and child neglect, each representing 34% of all substantiated investigations^{Footnote 33}.
• A subsequent report comparing results from the CIS to substantiated investigations of abuse and neglect of First Nations children noted that for every 1,000 substantiated child maltreatment investigations involving First Nations children, there were 19.9 investigations in which the primary maltreatment category was exposure to IPV, almost 5 times the rate for non-aboriginal children (4.2 per 1,000)^{Footnote 34}.

False allegations of abuse

There is no definitive research on the rate of intentionally false reporting of family violence in the context of a family law dispute, although intentionally false allegations are generally understood to be rare^{Footnote 35}. With respect to child abuse, it is important to distinguish between a false allegation that is deliberately made to gain an advantage in a custody or parenting dispute and an unfounded allegation that is based on a misunderstanding but driven by concern for the child. Studies have shown that most false claims are the result of honest mistakes, parental anxiety and misinterpretations of children’s statements, rather than intentional lies^{Footnote 36}. Research on reports of child maltreatment to child welfare authorities provide some data, as there are mandatory “duty to report” provisions in child protection legislation in every province and territory^{Footnote 37}. Child maltreatment may include a range of behaviour such as physical abuse, sexual abuse, neglect, emotional maltreatment, and exposure to intimate partner violence^{Footnote 38}. The Canadian Incidence Study of Reported Child Abuse and Neglect (CIS) tracks intentionally false allegations of neglect and abuse reported to child welfare agencies, based on investigations by child welfare workers^{Footnote 39}.

• Of all reports of child maltreatment where there was also a child custody dispute between the parents, 10% were determined by child welfare investigators to be intentionally false^{Footnote 40}.
• These intentionally false reports could have been made by custodial or non-custodial parents, or by other family members, neighbours, professionals (such as teachers) or anonymous sources^{Footnote 41}.
• In contrast, in 60% of cases where there was also an ongoing custody dispute, the report of maltreatment was either substantiated or suspected by child welfare investigators^{Footnote 42}. In a further 18% of these cases, the report of maltreatment was considered unfounded, but investigators determined there was no malicious intent by the person who made the report^{Footnote 43}. A further 12% of these cases were deemed unfounded, but it was not known if the report was malicious or not^{Footnote 44}.

There are substantial personal and societal costs of family violence

There is no doubt that family violence imposes a huge personal cost on people who experience it and witness it. Such costs may be passed down from generation to generation. Governments should also be concerned that family violence is costly; it imposes huge financial burdens on the people involved, the community, and court systems.

• In a 2012 study of the economic impact of spousal violence^{Footnote 45}, it was estimated that the justice system bore 7.3% ($545.2 million) of the economic impact of spousal violence where $320.1 million was borne by the criminal justice system and $225.1 million by the civil justice system.
• Of civil justice system costs, it was estimated that $181,903,737 (80.8%) was attributed to child protection systems, $40,941,889 (18.2%) to separations and divorces, and $2,272,200 (1.0%) to civil protection orders^{Footnote 46}, ^{Footnote 47}.