A lot of changes are needed to make the family law/court system work for survivors of family violence and their children. One of the first is for the system to stop treating violence within families as though it is a gender-neutral phenomenon.
Lundy Bancroft, a former counsellor for abusive men who now works with women who have been abused and as an advocate for systemic change, wrote in a recent blog:
“[In family courts across the continent], mothers and children have no rights at all . . . . Loving mothers are having their children torn away from them when they haven’t even been accused of doing anything or where the only accusation is that they’ve tried to protect their children from an abusive father – exactly what the child needs them to do – and therefore are declared guilty of ‘parental alienation.’”
While Bancroft is writing from his experience in the United States, what he says applies to the Canadian family court system as well. This is confirmed in an article written earlier this year by Flannery Dean for Chatelaine magazine, in which she notes:
“Across Canada, family court … is a system that has long struggled to deal with cases that involve allegations of violence, especially when determining custody and access. That’s in part due to a culture rife with sexist stereotypes that won’t acknowledge the high rates of domestic violence in divorcing couples or the gender-based reality of that abuse. The result is that the high conflict label has been too broadly applied, often lumping merely bitter splits in with truly dangerous ones. Too often its use threatens the safety of women and children coping with violence, power imbalances and patterns of coercive control.”
Naming it for what it is
Recently, I spoke at a two-day family violence program put on by the Law Society of Ontario (LSO). It was aimed at family law lawyers but others, including judges and paralegals, also attended. This was the most substantive program on family violence offered by the LSO, and came about after years of advocacy by Luke’s Place and other violence against women organizations.
The timing was good: revisions to the Divorce Act and the Children’s Law Reform Act that increase the focus on family violence when courts make decisions about post-separation parenting arrangements came into effect earlier this year, meaning lawyers and others in the family court system need to become fully informed about family violence. As well, Justice Canada is expected to release its long-awaited HELP Toolkit later this year, which will assist family law practitioners to inquire about family violence with all new clients and then integrate any relevant information into their work with the client.
There were many good speakers, including Dr. Peter Jaffe of Western University’s Centre for Research and Education on Violence Against Women and Children, Jennifer Kagan, whose four-year-old daughter Keira was killed by her father during an access visit in February 2020, practicing lawyers, judges and community-based violence against women advocates. All the presenters spoke knowledgeably and passionately about family violence and the need for the family law/court system and the players in it to increase their ability to respond appropriately to ensure that survivors, most of whom are women, and their children can move on to lives free from violence and the threat of violence.
And yet, by the end of the two-day program, I felt discouraged. Why? Because the most frequent comments and questions were focused on why we were not talking more about violence against men in the family.
I cannot tell you how tired I am of being asked these kinds of questions and of being told I am biased against men.
Most of us had fully acknowledged that men can be victims of abuse by their partners and that abuse can take place in same-sex as well as heterosexual relationships. But, we also talked about the reality: most of the victims of the most serious forms of abuse are women. This is well established in research conducted in both Canada and the United States. For example, between 2010 and 2019, there were 815 domestic homicides across this country. Nine percent of the victims were children and 79% were women. Men were the perpetrators of 86% of all domestic homicides. Women are more likely than men to need medical attention after an incident of intimate partner abuse. They are also much more likely to be victims of coercive controlling abuse and to live in fear because of their partner’s treatment of them.
It’s time to move on
Anyone who is abused by their intimate partner deserves to be believed and to have access to whatever supports and services they need, including a family court outcome that will keep them as safe as possible. However, the family court system cannot continue to act as though the abuse that happens in families is a gender-neutral phenomenon, as likely to happen to a man as to a woman.
It must stop accepting at face value claims by abusers that their former partner is engaging in parental alienation when all she is doing is trying to protect her children.
It must begin to accept that violence against women in the family is not a rare exception but, rather, a common reality.
It must listen with an open mind to women who raise the issue of the violence to which they have been subjected rather than assuming they are not telling the truth and then punishing both them and their children with outcomes that do not keep them safe.
That shouldn’t too much to ask, does it?