Family violence: At last, better protections for children

Anyone with experience working in family law understands how difficult it can be to resolve disputes where there is a history of family violence.  Not knowing about the violence can make it even more challenging. It is why we should welcome proposed changes to the federal Divorce Act in Bill C-78 — in particular, the new provisions explicitly recognizing family violence as a factor in determining the best interests of children.

In truth, the proposed amendments hardly change the substance of the law. The revisions merely codify existing court practices. And yet, there is more to the government’s efforts than cosmetic changes to the legislation. There is a genuine effort here to give the courts and practitioners tools to address family violence.

First, with so many unrepresented litigants unable to afford legal counsel, we cannot have the Divorce Act, as it is currently written, remain silent on how violence should inform how we determine the best interests of the child. Clarifying that explicitly in the legislation is the least we can do to help people understand the law.

It helps that the proposed amendments define family violence expansively, which reflects the advocacy efforts of the social services community to draw attention to behaviours that go beyond physical abuse. The definition captures  “… any conduct that is violent, threatening or a pattern of coercive and controlling behaviour, or that causes a family member to fear for their safety.” It is careful to include  “direct or indirect exposure” of children to that kind of conduct and proposes a non-exhaustive list of examples of violent conduct — from physical, psychological and financial abuse to harming animals.

Courts would have to consider family violence and its impact on the ability and willingness of the violent family member to care for and meet the needs of the child. They’d also have to look at whether parties are capable of cooperating on issues affecting the child where there is a history of family violence and a pattern of coercive and controlling behaviour. The proposed definition captures not only violence that happens in the presence of the child, but also the kind that is potentially relevant to the child’s best interests.

The second significant development is an effort by the federal government to promote the sharing of information concerning domestic violence between divorce courts and other courts that may have had relevant proceedings. These include criminal courts and courts addressing child protection and civil protection matters, who often render orders that are inconsistent with one another. Provincial authorities will have to be involved, but mechanisms are being put in place to help.

One of the proposed amendments to the Divorce Act would impose duties on the court to consider any other relevant proceedings elsewhere when granting parenting orders and support orders, and to use the resources at its disposal to do so. This will differ from province to province.

Also promising, the federal government is also renewing its efforts to expand the availability of unified family courts (UFCs) across the country. A properly functioning UFC system would go a long way in helping litigants who often feel victimized every time a different court asks them to retell their story when dealing with a different aspect of the family crisis.

Existing UFCs take various forms depending on the location of the court, but the common principle is the elimination jurisdictional overlap between provincial and superior trial courts. Instead, a single court of complete jurisdiction addresses the needs of families. Ideally, one court would manage all aspects of that family’s contact with the justice system related to the divorce. Again, the specifics of how UFCs take shape will be dependent upon coordination efforts with each province and their cooperation. As a result, implementation of UFCs has been slow, especially in those provinces where they do not currently exist.

Finally, the government is working on a new screening tool that should be made available to lawyers, as early as next year, to help them identify possible victims of family violence. Practitioners are often exposed to behavioural and cognitive dysfunctions that may seem bizarre and illogical, but that are nevertheless common among victims of abusive relationships. The trouble is people don’t always disclose whether there is a history of violence in their family. Lacking training, lawyers will sometimes “fire” their clients, dismissing them as “difficult,” when in fact there is an underlying reason for their unpredictability, self-sabotage, and refusal to follow advice. These clients need to be directed towards appropriate support services. But in failing to recognize those needs, the lawyers are often only exacerbating their situation.

Most efforts to develop family violence screening tools to assist non-expert professionals have been directed toward the medical profession as a point of first contact. But lawyers are often in a similar position, and comparatively little work has been done to develop practical, easy-to-use tools that could help them identify victims leaving a violent relationship.

Justice Canada has recognized this gap and is working with domestic violence service agencies across Canada to test a draft screening tool.

Ultimately the proposed changes to the Divorce Act, the UFC project and better screening tools will improve the capacity of both the courts and counsel to identify and more properly address violence in the family law context. But while there is reason for optimism, there is a cautionary tale as well.  In developing its policies, the government has been informed by social science data, collected over many years. But as the recent closure of the Canadian Research Institute for Law and the Family illustrates, we are seeing a worrisome decline in funds being allocated for this purpose. What’s more, many tenured family law professors are retiring across the country without anyone to take their place.  We have a long way to go before we can assert that our family justice system is working as it should.  We’ll never get there without a stable base of funding for family law research institutions.