Justice Mandhane of Ontario’s Superior Court of Justice has written many family court decisions that reflect her depth of understanding about family violence. She is perhaps best known for her decision in Ahluwalia v Ahluwalia, in which she established a family law tort of family violence. While her decision was overturned at the Ontario Court of Appeal, that decision was appealed to the Supreme Court of Canada, where arguments were heard earlier this year. We await the SCC’s decision.
In a recent case, Justice Mandhane demonstrates her deep and nuanced understanding of family violence in the context of making an order for parenting arrangements for two young children. Even more interestingly, she explores the idea of using restorative justice principles in family court.
Parenting arrangements & family violence
First, Justice Mandhane makes a finding of family violence:
“On a balance of probabilities, I find that the Father engaged in a five-year pattern of psychological, sexual, physical and financial abuse, coupled with controlling behaviors.”
The father argued that, because he was not convicted in criminal court, there was no factual basis on which to make a finding of family violence, but, importantly, Justice Mandhane does not agree:
“The criminal charges are not determinative of whether family violence occurred within the meaning of the Divorce Act.. . . In short, the fact that an accused might have been acquitted of charges related to specific incidents in a marriage, is not dispositive as to whether family violence occurred. “
Justice Mandhane thoroughly canvasses the issue of family violence in the context of the best interests of the child test to make her decision that the mother should have decision-making authority in all areas except extracurricular activities, where the father would make the decisions. She ties increased parenting time for the father to his completion of programming for fathers who have been engaged in family violence and sets some parameters around the parents communication with one another.
And, she does all of this within an intentional framework of restorative justice.
Dignity, trust and peace
While there has been increasing talk about bringing a restorative justice (RJ) approach to criminal responses to gender-based violence (including recommendations from both the CKW inquest and the Nova Scotia Mass Casualty Commission), there has been little discussion about finding a place for RJ in family law cases.
Happily, in her decision in this case, Justice Mandhane talks about why there should be such a place:
“This is what the epidemic of IPV looks like through the distorted lens of the adversarial justice system, and this case made me question deeply my role as a judge. Criminal courts hold perpetrators accountable; child welfare courts protect children from harm; and civil courts award damages to victims; but what is the role of family courts when making parenting orders? In my view, our role must be restorative, rather than punitive, preventative or even reparative.
“ . . . A restorative approach means restoring dignity, trust, emotional resilience and peace to the family relationship . . . . [and] acknowledges the complex family dynamics that underpin violent relationships, encourages each party to take responsibility for their role, builds each parent’s capacity to meet their ongoing parenting role within the family and reduces conflict so that the parents can focus on their children’s current and future needs.”
She argues for courts to use RJ because of the “widespread and insidious nature of IPV, and its ubiquity within family unions,” says that it is “an antidote to stereotypical reasoning about the nature of IPV” and will require judges to “delve deeply into the dynamics and patterns that underpinned the violent relationship,” while understanding that “IPV exists on a spectrum:”
“This depth of analysis forces courts to move beyond an episodic approach and the binary victim-perpetrator dichotomy to isolate the broader family and social dynamics at play. . . [to find] a pathway towards transformative justice, or social change through a deeper understanding of how violence manifests itself in intimate partner relationships and families.”
As Justice Mandhane points out:
“There is very little written about restorative justice in family law, let alone an agreed-upon definition. Fundamentally, restorative justice is about mutual responsibility and interdependence within relationships. The starting premise is that individuals are responsible for how their actions impact others and the larger whole of which they are a part (ie. their family, the community, and our society). Restorative justice assesses actions not only based on their impact on individuals but also based on their impact on social units as a whole. Each individual is responsible for the well-being of the whole because the parts of the whole are interdependent; harm to one is harm to all, and good for one is good for all. . . . I would define restorative justice in family law as an approach to justice that aims to restore family relationships to the extent necessary to meet the children’s best interests in the aftermath of family violence.”
This decision is visionary, and for that we owe a debt of gratitude to Justice Mandhane. Let’s hope that we will now see principles of RJ introduced regularly in family court proceedings. This can only lead to improved outcomes for everyone in cases involving family violence.