The answer to this question is both simple and complicated: Only when the law, court processes and those who implement and oversee the interpretation and administration of the law acknowledge the prevalence of violence against women within the family will women and their children who leave abuse have meaningful access to justice.
It is relatively simple to come up with some ideas about what needs to change, and the list below is a start at that. It’s more complicated to get those ideas implemented. Without a culture-wide understanding that misogyny is alive and well in this country and that women, even in Canada, have not achieved substantive equality, none of these needed changes will happen.
Fixing the law is a good place to start. The test on which all decisions about custody and access are based – the best interests of the child test — needs to explicitly include mandatory consideration of family violence and abuse. Any references to maximum contact, such as that contained in section 16(10) of the Divorce Act, must identify family violence as an exception to automatic maximum contact. Access denial must be permitted where the primary parent has concerns for the well-being of the children because of family violence. The safety of the primary parent needs to be seen as a factor when considering the best interests of children. British Columbia’s Family Law Act, which is still too new to evaluate, offers some good possibilities for other jurisdictions to consider.
Some American jurisdictions have a rebuttable presumption against custody to a parent who has been abusive to the other parent. That’s an interesting idea to explore.
Perhaps it is time to revisit the issue of whether to remove the terms custody and access entirely and replace them with less loaded, win/lost language. But this time let’s come at the discussion from a feminist perspective rather than from the fathers’ rights perspective that has tainted so many previous attempts to reform Canada’s Divorce Act.
Changing the law is just the beginning, because if those who implement it don’t understand the dynamics of violence against women, the best laws in the world will have no impact on court outcomes.
Education and training for those involved in the process — judges, lawyers, court staff, mediators, parenting coordinators, child protection agencies and the Office of the Children’s Lawyer – is critical.
The National Judicial Institute has developed a rich 4-day seminar for both family and criminal judges on managing domestic violence cases. Unfortunately, though, participation in such seminars is voluntary.
We need to advocate for mandatory judicial education on domestic violence to match the mandatory education for judges on sexual violence that is slowly taking hold. Or, better yet, let’s call for mandatory judicial education on violence against women rather than continuing to treat domestic and sexual violence as separate and unconnected.
Legal Aid Ontario has undertaken an organization-wide domestic violence awareness training initiative for its staff. Over the past three years, 2,000 LAO staff across the province – including several hundred family law lawyers – received a full day in-person training session. Importantly, LAO is committed to ensuring the learning continues, so there will be sessions each year for new employees and lawyers.
But education can start earlier than this. Law schools should have mandatory curriculum on violence against women so all students graduate with a base level of knowledge and awareness. The Law Commission of Ontario has developed just such a curriculum, which can be built on and adapted as law schools see fit.
Everyone needs education on violence against women
A number of provincial family mediation associations offer domestic violence training to mediators. The Office of the Children’s Lawyer and child protection agencies are working to increase awareness on the part of those doing work for them.
All of these models can be adapted and expanded to ensure they use an intersectional feminist framework and include survivor voices and perspectives. They need to apply a differential analysis of intimate partner abuse and examine the prevalence of post-separation abuse.
An important step would be making all violence against women training mandatory, whether it is for lawyers, judges, parenting coordinators or anyone else involved in the family court system.
It’s about the process, too
Lack of legal representation, a focus on mediation and other forms of alternative dispute resolution, the length of proceedings, legal bullying: all of these have a negative impact on survivors of violence within the family.
Implementing a rigorous triage system at the front end of all family law cases, administered by violence against women experts, would mean these cases could be identified and fast tracked.
Increasing financial support for the Family Court Support Worker program would ensure important emotional and practical support as well as increased safety for survivors of family violence, which would help women engage more effectively with their family law case.
Legal representation for both parties in cases involving violence would improve outcomes enormously.
Using the tools already available to shut down legal bullying would speed up proceedings and reduce the harassment and intimidation that many women feel when their ex-partner uses the court process itself to stalk them.
Creating a win/win
While some of these changes require financial investment, virtually all of them would result in significant cost savings. Cases involving family violence would move through the family court process more quickly and smoothly and parties would be less likely to have to return to court over and over.
Most importantly, survivors of family violence would encounter a family court process that both understands and meets their needs and emerge from that process with custody and access orders that keep mothers and children safe and that reflect what is truly in the children’s best interests.