When Tina Turner belted out “What’s love got to do with it?” in 1984, she had left her relationship with the abusive Ike Turner behind her. However, reports of their divorce indicate she also left behind much of her financial security to gain her independence from him.
In my work, I see women on a regular basis who, like Tina, have decided not to pursue their legal rights. It’s just too risky to antagonize the abuser by making legal claims for property or money: risky in terms of both the woman’s and the children’s psychological and physical safety. Many women walk away from their financial rights as set out in the law in favour of trying to get a reasonable custody and access order and in the hope that their former partner will leave them alone.
Sadly, these hopes often don’t materialize, and the woman ends up with a lousy financial and property outcome coupled with an order for joint custody that forces her into ongoing contact with her former partner, leaving both her and her children exposed to the abuser’s continuing harassment and intimidation.
The law: a tool or a weapon?
When I started law school, I was neither young nor naïve, but I did have a basic belief that law could function as a powerful tool for justice. In the 30 or so years since, I have seen the many ways a determined abuser can turn law from a tool into a weapon as well as the ways in which the law itself makes it possible and easy for him to do so. Nonetheless, I retain a shred of optimism that good laws can lead to, if not justice, perhaps decent outcomes in cases of violence against women.
With the recent announcement of Ontario’s Gender-Based Violence Strategy and the federal government’s Bill C-75, which proposes major changes to Canada’s criminal law, I found that shred of optimism growing into something a little more substantial.
What if, I thought, we could actually make laws responsive to violence against women?
I will write more about Bill C-75 in a few days – at more than 300 pages, it deserves a posting of its own. For now, I want to comment on what good law in the area of custody and access would look like and what it would take for good law to have a meaningful impact.
B.C. leads the way
In Ontario, the law governing custody and access, the Children’s Law Reform Act, was amended in 2006 to add a requirement that judges consider violence or abuse when determining what is in the best interests of the children. This was an important step to having allegations of family violence taken seriously by the courts; however, in the 12 years that have followed, we have not seen the improvements to custody and access orders that we had hoped for.
The provision, found in section 24(4) of the Act, is too general. And, without adequate education for judges about the dynamics of family violence, interpretation is inconsistent.
British Columbia’s Family Law Act (FLA), while only a few years old, stands as what may be a best or at least promising practice in terms of meaningful law reform in the area of custody and access.
First, the FLA has eliminated the terms custody and access. In British Columbia, the law talks about parental responsibilities, parenting arrangements and parenting time. This language is less adversarial, which may lead to fewer pitched battles for custody by abusive partners who claim to want custody primarily as a means to maintain power and control in the family.
Legislation with some teeth
Second, the identification of family violence as a factor to be considered in applying the best interests of the child test, is set out in considerable detail.
Section 37 of the FLA requires judges to consider, among other factors:
- The impact of family violence on the children’s safety, security and well-being, regardless of who the primary target of that violence is
- Whether the person who is responsible for the family violence is impaired in their ability to care for the children
- Whether or not the two parents can cooperate for the purposes of parenting without risk of safety to the parent or children
Judges are given nine factors to consider when they assess family violence in their determination of what parenting arrangements would be in the best interests of the children, one of which is the presence of coercive control (Section 38).
And, section 62 stipulates circumstances in which a parent can deny parenting time to the other parent, including when there is a reasonable belief that the child might suffer family violence if the parenting time were to take place.
Still early days
B.C.’s Family Law Act has not been in force for long enough to assess whether these new provisions will work as they are intended to. Already, there is some indication that not all judges are interpreting the family violence provisions in a meaningful way, which speaks – yet again – to the need for judicial education on family violence and violence against women.
That said, the law itself creates the framework within which other improvements can be made, and that is an important step in the right direction.
Maybe, after all, law does have something to do with it.