Judicial education is a critical component of improving legal responses to intimate partner violence. Recently, I had the opportunity to speak to family court judges in Ontario, as they attended an education seminar, one day of which was dedicated to the topic of IPV.
I began by sharing the story of a former client. Last week, I shared excerpts from what I said about coercive control and trauma. Here are come of my comments to the judges about the challenges of providing evidence to establish the presence of IPV.
Evidence of abuse that is independent of the survivor’s own story is often pretty thin on the ground. Most abuse takes place in the privacy of the family’s home with no one around other than the kids to see or hear what is going on. Often, there are no visible injuries. Many women don’t share what is going on with anyone.
The shame that many women feel about the abuse, coupled with their fear of the abuser, means they often make up stories to explain away physical injuries, even those that require a trip to the hospital or that draw attention from co-workers, friends or family members. Children can be drawn into this myth-making, too, telling others what their father has told them: “mummy is so clumsy,” “mummy falls all the time” or “mummy is stupid,” further cementing the false notion that the woman is to blame for her injuries.
Coercive control – really, any form of non-physical abuse – often has absolutely no evidence beyond that of the survivor herself; and her evidence may not appear credible because of the impact on her of trauma and fear.
Myths
I can’t talk about evidence without mentioning the many myths and misconceptions about intimate partner violence that continue to influence how women themselves react to the abuse as well as how others hear their stories.
Here are just a few of those myths:
- If she doesn’t leave or if she goes back, that means the abuse isn’t serious. In fact, there are many reasons for women to stay with or return to an abusive partner. Supports such as housing, child care and employment are sorely lacking. Women have many fears associated with leaving the abuser: of being alone, of the abuser’s reaction, of the children being alone with the abuser. Many blame themselves for the abuse or feel a deep sense of shame about it. Despite the abuse, it is not uncommon for a woman to continue to love her partner.
- Physical abuse is worse than emotional abuse or coercive control. It’s not – many women report that coercive control is much harder to move on from than physical abuse.
- The abuse ends when the people separate. It doesn’t; in fact, risk of increased abuse – including lethal violence – escalates considerably, and separation is one of the top risk factors for homicide.
- Women lie about or exaggerate the extent of the abuse to get an advantage in family court. Nope. While it is true that some women make up or exaggerate claims of abuse, false denials by abusers are much more common.
- Men are abused as often as women are. While people of all genders can be and are abused by their partners, with respect to the most serious forms of abuse – coercive control and homicide – women are overwhelmingly the victims and men the perpetrators.
- Men who abuse their partner are still good fathers. Abuse of one parent by the other always has a significant impact on the children.
- All survivors of IPV are the same. In fact, survivors of IPV present in many different ways, some of which make them challenging to support.
- If there are no criminal charges, the abuse either didn’t happen or wasn’t serious.Hopefully, the definition of family violence that now appears in both the Divorce Act and the Children’s Law Reform Act debunks this myth and we aren’t going to hear it raised again in family court cases.
These myths/misconceptions can find their way into the family law case in many ways:
- They can stop a woman from sharing important information with her lawyer because she doesn’t realize it is relevant
- Her lawyer may be dismissive of some of what she tells them because they don’t properly understand IPV
- Her lawyer may encourage ADR when it is not appropriate or safe
- Because of her trauma, she may present to her lawyer – and in the courtroom – as unreasonable
- Myths can make their way into evidence presented by the parties as well as witnesses
- They can affect the attitudes of all legal professionals involved with the family law case
What now?
Most of us who work in the family law system are well-intentioned and want to do the best job we can, whatever our role. The 2021 changes to the Divorce Act and the Children’s Law Reform Act, as well as a number of cases that now stand as precedents, have put the family law system in a better situation than ever before to respond to IPV appropriately. That’s a good thing, because it’s a factor in a significant number of the cases that come before you.
There’s always more to learn, wherever we fit in the family law system. Thank you for inviting me to be part of today’s seminar — I hope we can all continue learning together.