Violence Erased: The Supreme Court of Canada on the Family Lawyer’s Role

The Supreme Court of Canada has heard several family law cases involving intimate partner violence (“IPV”) in which they erased the abuse. Pettkus v Becker, [1980] 2 SCR 834 is perhaps the most well-known family law example of the tragic consequences of ignoring a survivor’s experience.[1] Less well-known, are the cases developing the law governing domestic contracts. Beyond the obvious trauma inflicted on survivors whose cases are heard but whose experiences are ignored, is the question of what the implications are for the soundness of the law generated by ignoring IPV. One of the issues discussed in these domestic contract cases is the family lawyer’s role during negotiations, and whether the presence of lawyers can equalize power imbalances. My primary aim in this post is to briefly review those decisions and consider the implications for the family lawyer’s role.

The Supreme Court of Canada on the Family Lawyer’s Role During Negotiations

The importance of independent legal advice (“ILA”) on the terms of a negotiated settlement cannot be overstated. The family law system is built on a policy that emphasizes consensual dispute resolution (“CDR”), private ordering and parties exercising their autonomy. For that system to work, parties need access to lawyers (problem #1), and they need to be able to negotiate with their former spouse (problem #2). In the context of IPV, it is well-known that a CDR environment can be problematic because of the lack of safeguards. An abusive spouse can make threats, hijack the process, impose pressure, and withhold disclosure. Tactics can also be subtle and only perceptible to the survivor. If a survivor is afraid, they may be unable to push back on those tactics. One safeguard is the court’s power to set aside a domestic contract that is unconscionable – requiring litigation. The lawyer is also thought to be a safeguard, but that is where things become unclear. Is the lawyer tasked with ensuring a safe process? A fair process? A balanced outcome? If so, beyond screening, how? The more the negotiated terms align with the law, the less likely a court will interfere later; but that yardstick is a difficult measure when the dynamics of IPV influences what is safe, fair, or necessary.

Unfortunately, turning to the applicable Supreme Court of Canada decisions offers little guidance. The Supreme Court has emphasized the importance of ILA, but they have failed to provide guidance on what that means for lawyers when there is IPV. This may not seem surprising until you realize that all the relevant cases involved female claimants, male payors, wealth, and power imbalances and / or IPV. To be sure, the Court has recognized some of the harms of IPV recently in Michel v Graydon, 2020 SCC 24, Colucci v Colucci, 2021 SCC 24, and Barendregt v Grebliunas, 2022 SCC 22, but not in the domestic contract cases. There is a long history of women’s experiences with violence being erased by Canadian courts, including by recasting the problem as the survivor’s mental instability. It seems that the Supreme Court of Canada has been complicit in that story.

In 1987, the Court heard the Pelech trilogy, decided under the old Divorce Act, RSC 1967-68, c 24. The trilogy was overridden by Miglin v Miglin, [2003] SCC 24, discussed below. Despite that, I have included Pelech because it seems to have started the discussion about the lawyer’s role in the context of negotiated settlements. Pelech v Pelech, [1987] 1 SCR 801, emphasized that when both parties have ILA the terms of their agreement ought to be respected.

In Pelech, the parties were married for fifteen years and had two children. Upon separation, the parties entered into a separation agreement which provided for a lump sum of spousal support in exchange for a support release. However, a further fifteen years later, Mrs. Pelech had depleted that fund and was living on welfare, whereas her ex-husband had become a millionaire. In Pelech v Pelech, [1984] CanLII 629 (BC SC), Mrs. Pelech sought a variation, seeking additional financial support. The issue of IPV was raised by her lawyer, suggesting Mrs. Pelech could not work because of the physical injuries caused by Mr. Pelech’s abuse. The variation decision shows that Mrs. Pelech had wanted a divorce on the ground of physical cruelty, but it was granted because of the husband’s adultery instead. Physical cruelty was found to be “utterly unsubstantiated” and instead, based on “medical evidence”, Mrs. Pelech was found to be “unhappily a psychopath” living in a “troubled domestic situation” (Pelech variation trial, paras 3 & 7). (The divorce decision is unreported.) Mrs. Pelech was portrayed as having a “history of occasional emotional instability” with “unstable emotional” health (Pelech variation trial, paras 7 & 28). By the time Pelech reaches the Supreme Court there is no mention of IPV, only Mrs. Pelech’s “serious psychological” and “physical problems” (Pelech SCC, paras 3 & 5). For the majority, Justice Wilson emphasized the importance of autonomy and the freedom to contract. She held that when parties “have negotiated their own agreement, freely and on the advice of independent legal counsel” then “it should be respected” (Pelech SCC, para 83). The agreement was upheld.

In Miglin, the parties had been married for fourteen years, and they had four children as well as a successful hotel business together. Upon separation they entered into a separation agreement that included a spousal support release. Instead of support, Mrs. Miglin received an income from the hotel (which Mr. Miglin retained) for a limited term. Once the term neared expiry, Mrs. Miglin sought spousal support along with a restraining order (LSM v EJM, [1999] 3 RFL (5^th) 106 (ON Sup Ct J) at para 1). Her income from the hotel had been “less than twenty-five percent of the annual salary” she was receiving from their company prior to separation (LSM, para 27). In addition, Mrs. Miglin had moved to Thornhill and the trial judge found this “move made it clear [Mr. Miglin] was no longer in control” (LSM, para 16). Mrs. Miglin claimed that he had become “aggressive, dominating, and often acted in an outlandish fashion towards her and her children”, including by following the children to school – which he was ordered not to do (LSM, paras 14 & 35). In turn, he claimed that she was “unfit” to have full custody, and he made allegations that her conduct was “bizarre” and that she was “emotionally unstable” with suicidal tendencies (LSM, paras 7-9). The trial judge rejected those claims and observed that Mr. Miglin created an “environment of intense hostility” (LSM, para 9). By the time the case reached the Supreme Court, for the majority, Justices Bastarache and Arbour presented it as though there was equality in bargaining power and mutualized conflict, referring to the “degree of animosity” between the parties (Miglin, para 19). They found “nothing” in the “circumstances surrounding the negotiation” to suggest there were vulnerabilities, and the substance of the agreement did not depart from the “objectives of the Divorce Act” (Miglin, paras 92-94). The separation agreement was upheld.

In Miglin, the Court split over the lawyer’s role. In this case, the Court established the test for determining “whether a court should exercise its statutory discretion to award support under the Divorce Act contrary to the terms of a final agreement”.[2] One of the concerns in that test is the “circumstances of the negotiation”, and “whether one party was vulnerable and the other party took advantage of that vulnerability” (Miglin, para 4). The language suggests that when one party is “emotional”, the clear-thinking of a lawyer who can advise competently will often be enough to overcome that stress (Miglin, para 82). The majority found that lawyers can “often” help overcome “any systemic imbalances between the parties” and can compensate for vulnerabilities – as the lawyers did in this case (Miglin, paras 82, 83 & 93). In other words, lawyers can equalize a power imbalance. There is no mention of IPV or systemic gender inequality.

In contrast, in dissent Justice LeBel emphasized the uniquely disadvantaged position many women are in during family law negotiations, the gender-based inequities, and how difficult it is to predict the future adequately and objectively. The dissent included sections of the trial decision, presenting a more nuanced understanding. They were concerned about the way subtle power imbalances can influence the final terms of agreement, and the way “social and economic factors may constrain individuals’ choices”, such as “fear of losing custody of, or access to, the children” (Miglin, paras 209-215). They recognized that a “legacy of abuse may continue to colour the parties’ interactions as they work out the details of a support agreement” (Miglin, para 212). The dissenting opinion observed that a lawyer may “not always be sufficient to redress these problems” (Miglin, para 218).

The following year in Hartshorne v Hartshorne, 2004 SCC 22 the issue of domestic contracts returned to the Supreme Court, and again the Court split on what they thought ILA can achieve. This time, however, the issue was a marriage contract protecting Mr. Hartshorne’s property (a.k.a.: a pre-nup), signed on the parties’ wedding day. Upon separation, Mrs. Hartshorne wanted the contract set aside. They had lived together for twelve years (were married for nine of those years) and had two children together, one born prior to their wedding. Mr. Hartshorne, a lawyer and partner at his firm, had refused to marry without a marriage contract. Mrs. Hartshorne, an articling student and then junior associate at the same firm, received ILA and her lawyer advised her not to sign the contract (Hartshorne SCC, paras 60-61). During the trial, Hartshorne v Hartshorne, [1999] BCJ No. 2861 (BC SC), Mrs. Hartshorne claimed that her husband was “dominating and controlling” and so she had no choice but to sign (Hartshorne trial, para 43). There is no explicit mention of IPV in this case. Justice Bastarache for the majority held that ILA is “an important means of ensuring an informed decision”, particularly to explain to a client when an agreement is “grossly unfair” (Hartshorne SCC, paras 60-61). In dissent, Justice Deschamps held that ILA does not render an unfair agreement “fair” (Hartshorne SCC, para 89). Only the dissent observed the “power dynamics” in play and Mrs. Hartshorne’s vulnerability (Hartshorne SCC, paras 89-90). The agreement was upheld.

In Rick v Brandsema, 2009 SCC 10, the Court considered ILA again and finally set a separation agreement aside. In this case, the parties were married for twenty-nine years and had five children as well as a dairy farm together. Upon separation they entered into a separation agreement which Ms. Rick wanted set aside because she did not have full financial disclosure, the agreement included a spousal support release, and it gave her an unequal share in the couple’s dairy farm (R(N) v B(B), 2006 BCSC 595). At the trial, Ms. Rick also claimed damages for physical and sexual assault perpetrated by her husband, and argued that the IPV was relevant to understanding why the negotiation of their separation agreement was unconscionable. The trial judge framed the relationship as one involving “marital conflict” accepting that “things turned physical at times, probably frequently” (R(N), paras 4 & 19). Moreover, during the trial, Ms. Rick had a “complete breakdown of her composure” during direct examination, and during cross-examination she “plainly attempted to protect herself when asked questions that triggered her emotions. Her anxiety and apparent hysteria resulted” (R(N), para 25). For the Court, Justice Abella does not mention IPV, only that it was a “long and difficult marriage” and Mr. Brandsema engaged in “informational and psychological exploitation” (Rick, paras 1-2). Ms. Rick is portrayed as “mentally unstable” without discussing the connection between trauma and IPV which is so obvious in the trial decision (Rick, para 2). The Court held that parties “are almost always” vulnerable in family law negotiations, and “absent psychological exploitation or misinformation” their agreement should be “respected” (Rick, para 61). Lawyers can help “attenuate” negotiating abuses; however, it is a “question of fact”; the mere presence of a lawyer does not ensure an agreement is safeguarded (Rick, para 61).

LEAF intervened in Rick, arguing that Courts should respect good faith bargains, but set aside agreements without full financial disclosure or where a power imbalance has been exploited. Instead of assuming that parties approach negotiations on equal footing, they wanted recognition of women’s vulnerabilities. They argued that there are three types of “sex-based systemic disadvantage” for women negotiating separation agreements, namely, “economic, informational, and psychological” (pg. 6). The informational piece refers to the disclosure issues and lack of information women often have about “the financial affairs of the marriage” (pg.7), economic refers to economic disadvantage and the feminization of poverty, and psychological refers to the impact of IPV and the observation that most women are “socialized to prioritize the interests of others” over themselves (pgs. 7-8). LEAF argued that “psychological harm” from IPV “may prevent a spouse from understanding and acting on” legal advice (pg. 16).

Admittedly, these Supreme Court decisions do not contain a full analysis of the lawyer’s role. The comments about lawyers almost seem like afterthoughts. The lawyer’s role was first referred to in order to help shore up the idea that private agreements ought to be respected. Most recently, in Association de médiation familiale du Québec v Bouvier, 2021 SCC 54, which is about the unique context of mediation in Quebec, Justice Kasirer seemed to endorse the idea that in mediation the absence of lawyers is beneficial, and if necessary, a party can “suspend” mediation so they can “consult a lawyer” (paras 56-59). In dissent, Justice Karakatsanis observed that it is “well recognized that lawyers help attenuate power imbalances”; but again, she does not say how (para 154). Thus, the assumptions about what lawyers do or can do carry through to today. None of these decisions discuss screening for IPV or what to do with that information once a lawyer has it. None of them include a discussion of what a lawyer might do to ensure a safe or fair process or an enforceable agreement. There is no discussion of IPV or how the lawyer’s role changes when there is IPV, either when representing the perpetrator or when representing the victim. In these cases, there is a presumption of equality in bargaining power and an assumption that when power is imbalanced a lawyer can often help compensate.

The Stereotype: The Classic Hysterical Woman

If IPV is erased and relabeled a conflict or a power imbalance, and a woman is portrayed as psychologically unstable, what does that mean for the law built on that narrative? If the women’s conduct and abilities are the result of trauma or an undiagnosed traumatic brain injury, which is common in cases of IPV, how is a lawyer going to counteract those vulnerabilities? This is not simply about ensuring legal advice on the terms of the agreement. This is about a process that makes sense for cases involving IPV, and the lawyer’s role in that project.

The pattern of ignoring women’s experiences with violence and reframing them as hysterical is a long-standing dynamic. The classic stereotype of a hysterical female is associated with exaggeration and unreliability. The woman’s claims of a traumatic experience are framed as untrue; she is recast as crazy or hysterical. According to Judith Herman, the “study of psychological trauma has a curious history” with links to what is called “hysteria”.[3] Hysteria was “considered a strange disease with incoherent and incomprehensible symptoms”, most common to women; it was used as a “dramatic medical metaphor for everything that men found mysterious or unmanageable in the opposite sex.”^[4] Tracing hysteria historically, Jonnette Watson Hamilton found that hysteria has been linked with emotional instability associated with the uterus, a disorder caused by weak nerves (often associated with the “nervous woman”), repressed traumatic experiences, and people who overreact, dramatize, or seek attention – a trajectory from the body, to the brain, to the mind, to a personality type.[5] Whichever the historical context, she found the term was linked to gender, race, sexual orientation, and class. It was not until WWI when men suffered the effects of war, that trauma – or shell shock – entered the mainstream. According to the Centre for Research & Education on Violence Against Women & Children modern research on trauma can be traced back to “military labs after WWI”, but today “the most common posttraumatic disorders are not those of war but ‘of women in civilian life’” (pg.3).

It is well understood that IPV causes trauma, post-traumatic stress disorder (“PTSD”) and complex PTSD. The Department of Justice Toolkit for Identifying and Responding to Family Violence for Family Law Legal Advisers tells us that trauma can cause a victim to struggle to take in information, be disorganized, and be unable to “provide meaningful instructions” or “make decisions” (pg.44). Trauma can have an impact on the survivor’s demeanour, and they may have difficulty recalling specific details in a coherent order which may cause people to misinterpret their stories of abuse. Deborah Epstein and Lisa Goodman posited that people believe stories that have an internal truth, but survivors often cannot tell their stories that way. They tell their stories their way; they may be unemotional or their story may be more “impressionistic than linear” (pgs. 407 & 421). Thus, stories of abuse are often met with denial.

Hysteria or mental health issues are relied on by courts to discount women’s experiences, as can be seen in some of the cases above. Watson Hamilton’s study examined the ways hysteria is understood and relied on by courts, often at an unconscious level. She found two different paradigms about hysteria. One, the good, expected, and strong emotional response to a traumatic event – the person who “stands and fights like a man” (pg. 199). In contrast, she also found a second story of irrational hysteria – the woman who is “faking it”, “insane”, or “unfit” as a parent (pg. 200). More recently, Suzanne Zaccour conducted research on the gendered use of mental health labels, such as “crazy” or “hysterical”, in parenting decisions. She found the labels were used to “diminish mothers’ credibility and attack their parental capacity” (pg. 58). The labels were also “strongly” connected to claims of IPV (pg. 73). Zaccour found that often the mother will claim IPV, and the father will claim she is delusional as a response. The stereotype of the hysterical woman was found to distract the court from an analysis of family violence. Thus, allegations of mental illness can shift the focus from the “father’s violence to the mother’s delusionality” (pg. 71).

Stereotypes are also complicated by additional stereotypes about who victims of violence are, as well as the interconnectedness between layers of oppression that impact different women differently. People are routinely subjected to assumptions based on their race, sexual orientation, disability, and socio-economic status. The stereotype of the hysterical woman is just one layer of disadvantage in an interconnected web of disadvantages.

The question is: Can a Lawyer Really Compensate for IPV?

There is a disconnect between the law that has erased women’s experiences of violence and yet suggests lawyers can compensate for the “power imbalances” that follow those experiences of violence. How can a lawyer possibly balance those failings? How can those failings even be comprehensively understood when the violence is erased? There seems to be an assumption that a lawyer has the power to provide the counterweight to a system that eliminates women’s experiences, which is nonsensical when the law and the system itself informs their role. The disconnect also seems to flow from how the lawyer’s role is understood in the law governing lawyers and the professional rules governing their conduct, as compared to family law. The lawyer’s role is to provide access to the law, but the decision making is the client’s alone. The client gets to decide how they want to live, and they get to make bad decisions if they wish. The law governing lawyers in Canada and the Federation of Law Societies Model Code of Professional Conduct (“Model Code”) both conceptualize the lawyer as the client’s fiduciary, tasked with advocating for the client’s legal entitlements and providing legal advice on the client’s rights and obligations pursuant to the law. The law does not provide the lawyer with the power to decide what is best for the client. This framework suggests a return to the Pelech-esque emphasis on private ordering and lawyers as support in that ideal. Thus, there are problems on both sides – legal ethics and family law.

Around the time of Pelech and Miglin, there were concerns about an approach to private ordering that was paternalistic, allowing courts to interfere with agreements to protect vulnerable women. If the idea was to respect autonomy and equality, the thought was that courts should respect the parties’ agreements. Anything less, meant that courts could paternalistically override the recipient’s decision (almost always a woman) to ensure greater financial support was paid by the payor (almost always a man). Instead of protecting women, the concern was that the impact of the courts’ interference would reinforce systemic gender inequality.[6] This is still an important concern, but what the Supreme Court seems to be implying in the domestic contract cases is that the lawyer can often do what a court cannot.

The law ought not ask lawyers to compensate for its failings. Survivors are vulnerable to revictimization. Sarah Katz has shown that trauma has a “physiological impact on the brain” which can impact the victim’s behaviour (pg. 56). Experiencing trauma can cause a response known as “flight, fight or freeze” (pgs. 56-57). The “prefrontal cortex becomes impaired which limits both decision-making and memory” (pg. 57). Memories are stored in the “wrong place” in the brain which means when they are triggered “stress hormones are released”, even long “after the traumatic incident occurs” (pgs. 57-58). This is why when survivors are triggered during family law proceedings, they may react in surprising ways – as though there is a threat to their life or well-being. According to the Centre for Research & Education on Violence Against Women & Children, revictimization can be triggered by legal professionals who react to survivors in ways that are harmful, such as by minimizing their experience. If a lawyer were to paternalistically decide what is best for the client, that behaviour could cause revictimization. A lawyer taking control, in the same way their former spouse did, could echo the original IPV. (See also my previous column on “Lawyering in a Family Justice System that Masks Violence”.)

In the end, I struggle to reconcile this disconnect because the Supreme Court of Canada has rendered women’s experiences invisible, and the Model Code is silent about IPV. The Court has the opportunity to revisit the issue of ILA (and Miglin) in Anderson v Anderson, 2021 SKCA 117, leave to appeal to SCC granted, [2022] CanLII 26231 (SCC). For now, the law that applies to all lawyers also applies to lawyers where there is IPV, which is nonsensical given that the same norms do not apply. Trauma-informed lawyering is a meaningful step, but it has limitations in an oppressive system that reinforces gender inequality. I am left with questions and uncertainty about the lawyer’s role in the context of domestic contracts because family law has been built on a narrative that silences women and their experiences with violence.

*This research was supported by a Vanier Canada Graduate Scholarship from the Social Sciences and Humanities Research Council. Thank you to Shelley Kierstead, Jennifer Koshan, Amy Salyzyn, and Jonnette Watson Hamilton for their thoughtful feedback on a previous draft.

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[1] Rosa Becker was a survivor of IPV. After 19 years of living with Mr. Pettkus, she left him but that meant leaving their bee-keeping business and property which he held title to. The Supreme Court of Canada awarded her a constructive trust interest in both, but after years of trying unsuccessfully to realize the award she committed suicide, leaving a note that her death was a protest against the legal system that failed to help her.

[2] Carol Rogerson, “Spousal Support Agreements and the Legacy of Miglin” (2012) 31:1 CFLQ 13 at 22.

[3] Judith Herman, Trauma and Recovery (New York: Perseus Books Group, 2015) at 7.

[4] Herman, ibid at 10.

[5] Jonnette Watson Hamilton, “The Use of Metaphor and Narrative to Construct Gendered Hysteria in the Courts” (2002) 1 JL & Equal 155 at 160-167. (The author is currently working on updating this research by contrasting it with the subsequent twenty years’ worth of cases dealing with hysteria.)

[6] See generally: Martha J. Bailey, “Pelech, Caron and Richardson” (1989-1990) 3:2 Can J Women & L 615.