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Family Violence in Family Law Court

Updated: Oct 5, 2023

Family violence is defined as any violent or threatening behaviour by a family member toward another family member, that is part of a pattern of coercive and controlling behaviour, or that causes the other family members to fear for their own safety or for the safety of someone else. In the case of children, this includes direct and indirect exposure to that conduct.

The term family violence is considered an umbrella synonym for domestic violence or intimate partner violence, which is committed by one of the people in an intimate relationship against the other person, and can take place in relationships or between former spouses or partners. Family violence also involves violence against children (including adult children), parents, or the elderly. It can assume multiple forms, examples include, physical, sexual, emotional, psychological, cultural, financial and coercive control.

Experiencing and witnessing violence is a leading cause of complex trauma and has been associated with poor physical and mental health, substance abuse, eating disorders, and poverty. When violence is perpetrated within relationships of care, its negative effects are compounded by issues of identity formation. Trauma creates feelings of intense fear, helplessness, confusion, and a loss of control which can have harmful and enduring effects on "a person's sense of safety, sense of self, and ability to regulate emotions and navigate relationships" (CMHA, 2021)

Family violence research has identified a collection of perceptions and behaviours that are characteristics of those who exert abusive control over partner and children. In addition to coercive control, these include: entitlement; lack of empathy; belief of superiority; possessiveness; manipulation; denial; minimization; victim blaming; and externalization. The controlling behaviour can include depletion of the resources needed by the primary care parent to engage effectively in negotiation and litigation processes. Once resources are depleted, abused women are isolated from sources of help. The result amounts to legal system entrapment, where abused women are forced to respond to repetitive legal claims without access to adequate litigation resources.

Many family violence victims seek support through family court proceedings in order to find safety for themselves and their children but continue to encounter many barriers along the way. Many of the parties are self-represented, in need of protection, and commonly dealing with multiple legal matters at once. Add in the many interventions of social services agencies that work to address mental health, substance abuse, and trauma-related issue. These overlapping processes create delays and confusion, further exhausting the emotional and financial resources of the families involved.

Within the family court proceedings, the victims are expected to be able to function as if they had not experience trauma while perpetrators have the advantage of being able to craft their narratives from a properly cognitively function brain. The credibility of witnesses is generally gaged around the capacity to recall detail, to form a consistent and chronological narrative, and to maintain an appropriate level of emotion in the recounting of events. Victims who change their narrative, remember things later, have a lack of affect in their presentation or, on the other hand express rage or laughter, are all vulnerable to being discredited. Perpetrators often use the family court process as a tool for exercising continuing coercive control. Such actions cause ongoing harm to victims and their children and waste the time and resources of the family justice system. However, it is not always clear when legal abuse is occurring and understanding how these behaviours are an aspect of family violence is not yet widespread among family justice professionals.

In addition to the legal abuse by the perpetrator, a troubling connection has emerged between intimate partner violence and "parental alienation" claims. (More information regarding parental alienation will be discussed in a future blog post) The concept of parental alienation has been fraught with controversy since its first introduction by child psychiatrist Richard Gardner in 1985, generating rigorous debate. Particular concern has emerged over the concept's use in legal proceedings across North America, especially Canada, where claims of parental alienation have demonstrated a high potential for misuse and misunderstanding in family court cases involving family violence. This impact is particularly salient in family court proceedings involving family violence, where claims of parental alienation have become a common defense invoked by perpetrators. In such cases, perpetrators often make false counter-allegations of parental alienation after being accused of family family, in an effort to divert attention away from their actions and shift the burden of proof to the victim. Additionally, if victims are concerned for the welfare of the child(ren) with an abusive parent, attempts to protect their child have been mistaken for parental alienation by judges.

There is an increasing concern that focus on parental alienation in family violence cases will distract from other important factors in the family assessment process. When assessing a case, all factors ought to be considered, including: parenting history; nature of ongoing conflict; nature of litigation; child abuse and domestic violence/coercive control; trauma symptoms for children and parents affected by abuse; the misuse of alienation to undermine the protective parent and disinformation to confuse the court; and alienation.

Increased levels of awareness and education are needed to assist all services providers in the detection, assessment and response to family violence. Changes to the Divorce Act in March 2021, have assisted in the way of amendments to expanded definition of family violence, detailed criteria for making a decision in the best interests of a child, and several key factors for courts to consider when adjudicating cases of family violence.

In connection with family violence, keeping in mind that alienation claims and evidence filtering processes limit evidence of family violence presented to judges, recent cases are beginning to emerge that do report evidence of family violence, and show a willingness among some Canadian courts to shield children from coercive control and abusive parenting. Unfortunately this is still not a widespread occurrence and even in cases reporting family violence evidence, we are still seeing order that sentence abused women and children to continuing control.

While there are glimmers of hope for some abused women and children in Canadian family law, very few are being able to gain access to that hope. In order to present evidence to Canadian family courts that might be receptive to offering women and children freedom from their abusers, victims must overcome layers of gender-related obstruction that stand in the way of access to justice. These include coercive, controlling litigation tactics; lack of access to economic resources; medical and psychological harm from family violence; lack of access to specialized experts and government funded lawyers; institutional complexities associated with multiple legal systems; and family law practices that sentence victims to continuing control.

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