Ontario’s family courts fail the best interests of the child test when violence is involved

Women are at the highest risk of being killed by their partner at the point of separation. And yet, the family court to which many of these women turn does not offer them a guaranteed safe haven; all too often, in fact, it leaves them and their children exposed to ongoing harm. For some women, going to family court can feel a bit like it must feel to go over Niagara Falls: terrifying, with almost no likelihood of a safe landing.

What does the law say?

While Ontario’s law dealing with custody and access requires family court to consider the presence of violence within the family as part of the best interests of the child determination, the language is not strong enough to give this factor appropriate weight when it is lined up with the other factors that make up the best interests of the child test.

The lack of strong legislation is just the beginning of the problems with the family court response to cases involving violence against women, a few of which appear in the list below.

A host of problems

Family court process is premised on “friendly parenting” that does not understand the ongoing negative impact of intimate partner abuse on the woman. It also encourages (some would say pushes) people involved in a family court case to use mediation or other forms of alternative dispute resolution, which is often not appropriate or unsafe where one partner is afraid of the other.

Approximately 50 to 80% of litigants in family court are unrepresented. Problematic as this is for anyone, the lack of legal representation for either or both partners in cases involving family violence raises extremely serious safety issues as well as concerns about whether the unrepresented individual understands her or his legal rights and responsibilities and knows what evidence about the abuse the court needs to hear.

Not having a lawyer becomes even more problematic if the woman’s partner is engaging in legal bullying – actually using the court process itself as a weapon in his ongoing attempts to engage and intimidate her.

Added to these structural shortcomings in family law and court process, many of the players in the family court system appear to believe that children are always better served if both parents are closely involved in their lives; regardless of any history of abuse.

Blame the mother

A woman often receives the informal message that if she is a “good” parent – a parent who puts her children’s best interests first — she will find a way to parent collaboratively post-separation, regardless of any historical or ongoing abuse.

When a woman describes years of abuse in her submissions to the court, the response may well be one of disbelief: “Why did you stay so long if it was that bad?” “Why did you never call the police?” These kinds of responses reflect an absolute lack of knowledge about the dynamics of abuse and the impact of trauma.

Women stay because they are too frightened to leave; because the partner has threatened to take the children if they go; because they have nowhere to go; because they are afraid they won’t be believed when they tell people about the abuse and for at least a dozen other reasons.

Women don’t call the police because they are scared of what their partner will do in retaliation; because they don’t want their partner to go to jail; because they are afraid it will interfere with the family’s status in Canada; because their partner is a police officer or for many other very logical reasons.

Where is common sense?

When she is reluctant to enter into a joint custody regime that would require her to consult with her ex-partner – the man she has left because of his abuse; the man she is in all likelihood still afraid of – a woman is made to feel as though she is setting aside what is best for her children in favour of her concerns for her own safety.

This attitude denies what common sense tells most of us: a woman who is afraid of her co-parent is not going to be able to engage meaningfully in joint decision making and a parent who is afraid is not going to be as good a parent as a parent who is not afraid.

Protective mothering – something that is pretty important for women whose ex-partners are abusive – is too often relabeled as alienating behaviour.

The list goes on, and on, and on.

Who pays the price?

In short, women are not believed when they tell their stories of abuse, from the start of their journey through family court to the end of it.

What happens when women are not believed? Nothing good, for them or for their children. Some women go back to the abuser. Some accept custody and access outcomes that are less than the law offers and that place them and their children at risk for many years to come. Some live in poverty because they do not have the emotional strength to fight for what is their legal right.

And, some – women and children — die.

Next week: can we change this?

One thought on “Ontario’s family courts fail the best interests of the child test when violence is involved

  1. This is exactly what is happening to me. I finally reached a breaking point and left my ex (after he gave me permission to remove the children from the house) knowing if I didn’t I was going to have a break down both physically and emotionally. I thought once I was out the torture would be over. I was sadly very mistaken. My ex continues to harass and threaten me to this day. I have had the local police to my home at which time they out right said he was harassing me. Nothing was done. On another occasion after going to the police station I was told by an older officer that there comes a time when you just have to move on. I am in court where the abuse that I have endured at the hands of my ex (who is an alcoholic with a drug problem) is I assume known to all involved and yet the Judge looks directly at me and says that it doesn’t always work out in our best interests to go to trial and it is always better to try and come to a resolution between the two parents. Essentially the court system further empowers the abuser by doing nothing. It is absolutely unbelievable!

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