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Lawyering in a Family Justice System That Masks Violence

The family justice system masks family violence. There does not seem to be a dominant consideration of safety, including where there is family violence, beyond the best interests of a child analysis giving primary consideration to the child’s safety (see: Divorce Act, RSC 1985, c 3 2nd Supp, s 16(2)). Research shows that lawyers will advise their clients not to raise family violence as an issue, for fear of retribution and because the justice system does not recognize it properly. When women do make claims of family violence, abusers will make counterclaims of alienation (as an excuse for why the child does not want to be with the abuser), and judges will believe them.[1] As a result, survivors are advised to make efforts to be “friendly” and to try joint parenting to ensure they have some contact with their children. They are told not to jeopardize their credibility, that they need to “look reasonable” (Haley Hrymak and Kim Hawkins, Rise Women’s Legal Centre, “Why Can’t Everyone Just Get Along? How BC’s Family Law System Puts Survivors in Danger” (January 2021) at 51.) Survivors may either surrender legal entitlements to prioritize their own or their child’s safety (e.g.: relinquish support for custody), or they may agree to terms that compromise their safety to look reasonable (e.g.: agree to shared parenting or periodic support payments).[2] These dynamics erase family violence.

The lawyer’s role is informed by the law. Lawyers are the conduit between what the law provides and what the client needs access to. While they may be expected to be neutral on the morality of the client’s objective, their impact is anything but. Research by the Rise Women’s Legal Centre found that survivors have mixed experiences with their lawyers, but that more survivors have negative experiences than positive ones. (See: Zara Suleman, Haley Hrymak, and Kim Hawkins, Rise Women’s Legal Centre, “Are we Ready to Change? A Lawyer’s Guide to Keeping Women and Children Safe in BC’s Family Law System” (May 2021) at 8.) When the experience was negative, they cited concerns including “not being taken seriously”, “feeling like their lawyer was not on their side”, and “feeling like their lawyer was not a safe person to go to because they did not understand their experiences” (8). They found a family justice system that fails women and children:

Many women survivors of violence have shared with us that they are not using the family law system to access their rightful legal entitlements or benefits because to do so would put them at further risk of harm. If women feel unsafe to seek their legal rights, the legal system in essence further disempowers women while simultaneously empowering perpetrators of violence against women and children (at 37).

My question is, in a system that masks family violence, what role can lawyers play in unmasking violence? In this post, I consider a recent example of a decision that masks violence. I raise questions about law reform aimed at empowering survivors, and I suggest that good lawyering begins with lawyers believing survivors’ experiences.

A Recent Example: S v A

In S v A, 2021 ONSC 5976 (aff’d WS v PIA, 2021 ONCA 923) the parties had been married for five years, and had two children together. When the parties separated in 2016, their children were aged 33 months and 4 months. There was a history of intimate partner violence (“IPV”) and claims brought by the mother of child abuse. The police were involved, the father was criminally charged but later acquitted (para 65). The mother believed their children were in danger with their father. She was found in contempt for failing to follow an access order (paras 135-145). The father suggested alienation, seeking primary parenting and decision-making, which the mother opposed. The trial was one of the longest parenting trials in the Ontario Superior Court of Justice, lasting for thirty-nine days, over nine weeks, involving over twenty witnesses including access supervisors, reunification counsellors, child protection workers, and a psychologist. Between the trial, and the period leading up to it, the total cost to both parties was $1.7 million dollars (see: S v A, 2022 ONSC 55.) Justice McGee observed that the amount “well exceeds” the parties “personal savings and their equity in a jointly owned home” (para 1, Costs). Primary parenting, including decision-making, was transferred to the father, including an initial 90-day period of non-contact between the mother and their children – except by zoom. This was to be followed by a schedule that would end with shared parenting (para 332). The mother “lost” at trial, and on appeal, and so she was ordered to pay the father $677,610, plus $25,000 for the appeal. She was admonished for her “win at all costs” approach to the litigation (para 14, Costs).

Research shows that women are not believed when they describe a history of violence. There’s a history of discriminatory assumptions in Canadian courts about women’s credibility when they allege IPV. Courts often look for the ideal victim, one that complies with male-defined credibility norms. In S v A, Justice McGee acknowledged that the mother had been emotionally abused by the father during their marriage (paras 16 and 48-50). However, she disbelieved that the mother had been financially controlled because she had her own bank account, and they did not have a joint account (para 44). She also did not believe the mother had been sexually assaulted – the parties only had sex “one time” after their first child was born (para 62). Justice McGee, did observe that the mother’s “fears and sense of victimization [had] never healed” (para 55); but discounted the violence and its impact on the mother and the family, given its “nature” (para 16).

It is a myth that violent husbands can be good fathers, and that women do not want their children to see their father because they are vindictive. Justice McGee was concerned about the children’s well-being, who were both suffering, but attributed their conduct to “parental conflict” not family violence (para 13). Justice McGee emphasized the friendly parent doctrine of the Divorce Act (s 16(3)(i)). The father had improved his parenting skills, and his “abusive conduct during the marriage [had] no impact on his present ability to be a primary caregiver and decision maker for the children, or to cooperate with the mother on parenting issues” (para 16). The father was the “only parent willing to support the children’s relationship with the other parent” (para 15). The mother had “demonstrated no ability to support the boys’ relationship with their father” (para 17). The decision masks the reason for the mother’s inability to cooperate with her abuser and presents her fear for her children’s safety as irrational.

Anti-violence and equality advocates made submissions when Bill C-78 (the proposed reforms to the Divorce Act) was before Parliament, suggesting that the friendly parent provision should be qualified to make it clearly subject to family violence. They said, “requiring that mothers continue to communicate and cooperate with an abusive spouse is not only inappropriate, it is dangerous, and potentially lethal” (2). Given that courts are still relying on myths and stereotypes while prioritizing shared parenting over safety,[3] despite safety being given paramount consideration (s 16(2)), questions are raised about how survivors are expected to navigate a system that masks their experience as a survivor of abuse.

It is not possible to get a clear understanding of the violence or its impact in this decision. Between the cost and duration of the trial, and the pattern of masking family violence, S v A reinforces the logic in lawyers warning survivors that as long as the justice system masks abuse, they should not raise family violence concerns in court in order to present themselves within male-defined credibility norms. This is obviously a highly problematic suggestion that destroys the ability of survivors to access justice.

How Can Lawyers do the Unmasking?

In January, the Centre for Research and Education on Violence Against Women and Children and the Alliance of Canadian Research Centres on Gender-Based Violence issued a report “Survivors’ Views of Family Courts: Findings from the Canadian Domestic Homicide Prevention Initiatives with Vulnerable Populations” (the “Survivor’s Report”), where they provided survivors’ recommendations for developing more robust responses to family violence issues in the justice system. Their recommendations include anti-discrimination and trauma training for judges and lawyers (17). This is to prevent discrimination against survivors, particularly those from marginalized communities, as well as secondary victimization. Judges must assess parties’ credibility, but training would improve that assessment so it is not based on myths and stereotypes. (See our previous Slaw post on the role and responsibilities of judges in relation to family violence by Jennifer Koshan and me here.) On February 7th, Bill C-233 (a private member’s bill) was introduced, to amend the Judges Act, RSC 1985, c J-1, expanding the requirement for judicial education in sexual assault to include IPV and coercive control. Bill C-233 is informally referred to as “Keira’s Law” after the 4-year-old who died while she was in the care of her father; Keira and her father were found dead at the bottom of a cliff in an apparent murder/suicide. In that case, IPV perpetuated against Keira’s Mother was disbelieved due to a lack of evidence, including the fact that she did not report the abuse to health professionals (see: Brown v Kagan, 2018 ONSC 564). Justice Gray found “there was no risk to Keira” (para 184) and prioritized shared parenting over safety – masking the father’s history of violence.

The Survivor’s Report also cited a need to be responsive to harmful conduct made possible by the family justice system. An abuser who needs to regain control following separation may engage in systems abuse by making a claim of parental alienation, threatening to involve child protective services, and “conflicting out” potential legal representatives (20). They recommended that legal professionals “confront these tactics for what they are and develop strict standards for protecting the integrity of family law proceedings and the safety of litigants,” including training law students (21). This recommendation leads me back to my question. In a system that masks family violence, what should lawyers do differently? Lawyers need to be trained in family violence and screen for it, but what else?

  • Should a lawyer who represents a client accused of family violence be prohibited from counterclaiming or implying parental alienation?
  • Should lawyers be prohibited from making arguments based on myths and stereotypes about family violence?
    • Prohibit lawyers from suggesting the violence has been exaggerated?
    • Prohibit lawyers from suggesting that violence during the relationship is not relevant to parenting?
    • Prohibit lawyers from suggesting claims of family violence indicate the survivor is not reasonable?
  • Should lawyers be required to consider and respond to the survivor’s safety concerns in managing their client’s file?
  • Should lawyers be required to connect their clients to community supports who have expertise in family violence?

Some of these questions would require a change in the law, others would require a change in how the legal profession understands lawyers’ competence and conflicts of interests, and others are embedded in a lawyer’s advocacy. In my view the Federation of Law Societies of Canada needs to undertake a comprehensive review of the Model Code of Professional Conduct with a view to making it holistically responsive to family violence concerns. The legal profession regulates itself, and in doing so the provision of services ought to be inclusive of marginalized and stigmatized populations, including survivors of family violence.

There appears to be little stopping lawyers from presenting evidence based on myths and stereotypes about IPV. If a finding of what is in the best interests of a child could not made based on the myth that violent husbands can still be good fathers, by extension lawyers would be ill-advised to make such an argument, either explicitly or implicitly. (See the research of Elaine Craig here.) Understanding what constitutes ethical conduct by a lawyer requires consideration of the laws and professional rules governing their behaviour, in addition to the law of evidence, procedural rules, and the legal entitlements being accessed by the client.[4]

However, being a “good” lawyer is not just about behaving in accordance with what the law enables or requires. Being a good lawyer is often about exercising the moral discretion the law provides. Lawyers can improve survivors’ experiences by taking their claims of violence seriously; by believing them and in their capacity to know what is best for them and their children. Advocates are loyal to their client’s interests – representing survivors of abuse requires that lawyers be on their client’s side and understand their experience. The justice system needs considerable multi-pronged advocacy to be properly responsive to family violence. But no change in the law is required for lawyers to believe women when they say they have been abused.

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[1] See: Elizabeth Sheehy & Susan B. Boyd, “Penalizing Women’s Fear: Intimate Partner Violence and Parental Alienation in Canadian Child Custody Cases” (2020) 42 J Soc Welfare & Fam L 80.

[2] See: Heather Douglas, Women, Intimate Partner Violence and the Law (Oxford: Oxford University, Press 2021) at 170-180.

[3] See also: Susan B. Boyd and Ruben Lindy, “Violence Against Women and the BC Family Law Act: Early Jurisprudence” (2016) 35 CFLQ 101.

[4] See: Alice Woolley, “Is Positivist Legal Ethics an Oxymoron?” (2019) 32 Geo J Leg Ethics 77.

Comments

  1. Beryl Mac Donald

    I was a judge in the Supreme Court of Nova Scotia for 13 years. I am a woman. I practiced law for 31 years before I became a judge. Your comment, ” It is a myth that violent husbands can be good fathers, and that women do not want their children to see their father because they are vindictive.” First you have to decide the husband is violent. You appear to suggest women never lie or become vindictive. I beg to differ. Women are human and are subject to the same emotions and manipulative tendencies as men whether children are involved or not. I experienced that reality in my practice and as a judge.

    I have made many decisions that there was coercive violence in a home and placed children in the non violent partners care. Usually that person was the mother but not always.

    I am old enough to remember being told by social workers that “children never lie about abuse”. That brought us trials some suggesting satanic conspiracies to abduct children. We now know children do lie for a variety of reasons. We also must remember the recovered memory era. Now we refer to the “false memory syndrome” and are careful with this type of evidence.

    Family life leaves us few witnesses other than the parties themselves but to suggest one party (implied but not meant in your article? ) should always be believed is dangerous.

    Education is key but I attended many such opportunities as did my colleagues and I suggest many of them are constantly examining their decisions for bias, myths and stereotypes. Perhaps you have some of your own?

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