Research in Brief

Family Violence: Relevance in family law

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September 2018


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.

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 withFootnote 8.

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.

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.

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 familiesFootnote 20.

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 problemsFootnote 27. Children can suffer from post-traumatic stress disorder (PTSD) and can struggle to develop the skills for life-long trusting relationshipsFootnote 28. They may be at risk for experiencing or perpetuating violence in their own future relationships as adultsFootnote 29.

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 rareFootnote 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 liesFootnote 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 territoryFootnote 37. Child maltreatment may include a range of behaviour such as physical abuse, sexual abuse, neglect, emotional maltreatment, and exposure to intimate partner violenceFootnote 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 workersFootnote 39.

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.