Canada’s new Divorce Act, adding an expansive definition of family violence and abuse, will not do enough to reform the systemic culture in family court that routinely ignores family violence, experts say.
The act, delayed by the pandemic but to be fully implemented by March next year, mirrors a B.C. 2013 law that had little effect on provincial court decisions, says Rise Women’s Legal Clinic lawyer Haley Hrymak. Her soon-to-be released research based on interviews with hundreds of lawyers, judges, frontline workers, advocates and survivors of abuse indicates that the family law system is not equipped to recognize family violence and protect against it.
Despite decades of evidence that family violence is common and deadly, the courts reflect a culture that silences women, minimizes the impact of abuse and often emboldens abusers, critics say. Hrymak adds that without education on family violence, family courts have not improved their attitudes and assumptions. There is no requirement under the act for family lawyers or judges to get family violence education.
In Canada, one in five women experiences domestic violence. Every six days a woman is killed by her intimate partner. More than half of the population faces at least one adverse childhood experience such as child abuse, neglect or household dysfunction (such as parental substance use or witnessing family violence).
Yet the legal system still falsely assumes family violence is rare, says Hrymak. Her report outlines systemic trends in judgements in which both physical and non-physical violence are blatantly dismissed because judges and lawyers don’t understand the complex picture of violence.
“Instead, there is really a stopping effect,” says Hrymak. “Like, ‘Why can’t you just get along? Why are you being so difficult? Let’s just do 50/50.’ That’s what’s easy.”
What is best for the child and the safety of the family is silenced or ignored, with shared parenting is erroneously assumed as the ideal, she says.
Yet, research consistently shows that exposure to an abusive parent is harmful for children. Children witnessing domestic violence have high rates of suicide, mental health disorders, poor learning and development and physical health problems. Children who suffer high levels of abuse, neglect and domestic violence die nearly 20 years too soon.
“The judge doesn’t know about the history of abuse or if they do, they say things like, ‘That was in the past’, ‘That was only against the mom’, ‘It doesn’t have any impact on the child,’ ” says Hrymak. “Just a lot of really poor understandings of the realities of harm and risk.”
To succeed in court, survivors of violence are typically advised by their lawyers to keep quiet about abuse and instead to look friendly, reasonable and facilitate their child’s relationship with the other parent, Hrymak says. Bringing up abuse affects a parent’s credibility and can lead to worse outcomes, she says.
Even getting a protection order can hurt your court case, says Margaret Drew, Associate Professor of the University of Massachusetts Law School, which also occurs in Canada, agrees Hrymak. Despite the research showing that violence escalates during a separation, Drew says lawyers often warn clients that a protection order will affect their credibility and be seen only as a vindictive way to “one up” their ex.
Abusers often appear smooth and controlled in court while survivors appear emotional, paranoid and disorganized because of their trauma response, leading judges to favour the abuser when they aren’t educated in how trauma presents, Drew adds.
“The parent that is friendliest to the other parent in terms of visitation gets the custody,” she says, noting that setting what one parent views as boundaries against abuse is not viewed as friendly in court.
“If you start reading family law cases, it is shocking how much men’s violence is minimized and how so often the consequences of violence get relabeled as parental alienation,” says University of Ottawa Law Professor Elizabeth Sheehy. “So, if women are then afraid of their ex-husband, they are blamed as opposed to the men being blamed for causing that fear.”
Psychologist Peter Jaffe, Director of the Centre for Research and Education on Violence Against Women and Children at Western University, argues that parental alienation is not intended to describe actions a protective parent takes. “They have a reasonable basis to be concerned about the children’s safety and welfare in the hands of the other parent.”
Parental Alienation was rejected by the Diagnostic Statistics Manual for psychiatry for lack of scientific evidence. In 2019, a group of 352 experts from 36 countries penned a collective memo to the World Health Organization rejecting the idea of adding parental alienation to the International Classification of Diseases 11th Revision, arguing it is an unscientific and uncredible concept that diverts attention from family violence and the best interest of the child.
And yet more than half of the abuse survivors in Hrymak’s report were accused of it and judges almost always favour alienation over abuse allegations, Drew says.
Money is frequently the deciding factor. Family court usually listens to the player with the most money, says Drew, and the first step to reform is leveling the playing field, with both parties having access to representation and expert witnesses.
“There’s no legal help when they file for divorce in family court and they’re getting crucified,” says psychologist Bob Geffner, the founding president of the international non-profit Family Violence and Sexual Assault Institute and the Institute on Violence, Abuse and Trauma.
Western’s Jaffe says it shouldn’t be left to parents with the most money – too often the perpetrators -– to provide their own “experts” to support their positions. He recommends that family court and related professionals be trained to perform preliminary violence assessments and then consult with qualified mental health professionals with domestic violence training since the misdiagnosis can have fatal consequences.
All forms of violence – like coercive control, psychological abuse, stalking and financial abuse – need to be valued in court to protect against future violence, says Hrymak, and mandatory and expansive family violence education for lawyers, judges, and expert witnesses is needed to ensure that occurs.
She also recommends a specialized court with judges who understand family violence and want to work in family law.
“We live in a misogynistic culture that devalues women’s lives and diminishes women’s suffering and rationalizes men’s violence,” says Sheehy. “As much as we claim as a society to care deeply about children, that’s simply untrue in too many cases involving children.
“What’s apparently valued is the father’s access to the child over what the child wants.”
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Canada needs a new criminal law rendering
it felony child abuse/cruelty for a family court
judicial officer to impose “adversarial” methods
of dispute resolution in any case between
parents of minor children, prior to ordering a
proverbial ton of properly conducted sessions of
family mediation. At the same time,
Canada needs a complementary law mandating
that all family court operatives must—prior to
participating in any case between parents of
minor children—complete a 6 credit family
mediation clinic. No judge will go to jail because
all of them will be properly trained (to aid, rather
than to harm, children), and also because no judge
will want to go to get a felony conviction for child
cruelty; they will all simply refuse to harm children
anymore, and will order ten or more sessions of structured
family mediation, or whatever it takes, rather than
get prosecuted for felony child cruelty just to help
enrich a violent, greed-driven, mentally disturbed
family lawyer thirsting for blood money (and trials).
The most extreme and prevalent forms of child/parent cruelty,
violence and abuse will not end until the use of harmful, “adversarial”
methods of dispute resolution in (all) cases between parents
of minor children is essentially eradicated, and altogether
replaced with (beneficial) “non-adversarial” best practices
in family dispute resolution (structured family mediation).
What did I just read? Did you just ignore ALL of the available data to write this?
The author is an M.D., a psychiatrist and clinical assistant professor at the University of British Columbia Faculty of Medicine, and DOESN’T believe parental alienation is a thing? Just because a handful of groups have advocated against its classification as a disease, doesn’t render the giant body of research showing it’s long-term harm as incorrect. Someone please check this person’s credentials. You could do a quick google search and outperform this assessment.
Here’s some more facts: violence is more common from women than men and while fathers are involved in 38.6% of cases of child maltreatment, mothers are involved in 64%. There is no greater factor in the successful development of a child than the presence of a father. Despite this, fathers are awarded custody less than 10% of the time.
“What’s apparently valued is the father’s access to the child over what the child wants.” That isn’t apparent at all. Have you been to family court? Have you read the statistics. What is valued is the largely popular view that women are eternal victims, hopeless and powerless and require every feasible opportunity to have laws slanted heavily in their favor which they clearly are. But this in no way advances women. This infantilizes women. What a way to send the world back in time. Thanks for your contribution.
It is true that every 6 days a woman is murdered by her partner. That is immensely tragic. Here’s another interesting factoid related to that statistic: the vast amount of domestic violence perpetrated against women happens as divorce approaches and women are far more likely to instigate divorce. So perhaps its more reasonable to listen to what the actual professionals (still reticent to accept the authors credentials) tell us. That perhaps if fathers weren’t facing the prospect of a completely slanted justice system, no chance of fair process, having their children removed from them forcefully then turned against them, while being subject to child support guidelines which in no way resemble anything reasonable or fair and where there is no end in sight for having every dime they earn removed from them. They’re facing the end of their lives in divorce. Maybe if we addressed that problem, we could address the very real concern of family violence. So in that sense, I suppose i agree that the new Divorce Act will do nothing to prevent violence. But neither will bullshit articles of sexist propaganda like this.
Wow. Women often initiated the divorce so they and the children deserve to experience violence and death.
The men’s money might be at risk. The outrage. You must be furious that you may have to help pay for the maintenance of the children you consider property.
Your attitude is disgusting and shows why the divorce act desperately needed amendments.
“Women often initiated the divorce so they and the children deserve to experience violence and death.”
No. I didn’t say that. Or imply that. Or in any way hint in that direction.
My point was that because of the Divorce Act, many of these men feel they are facing the end of their lives. And that worry isn’t without basis. They have no reasonable expectation of a fair court proceeding, they’re likely to lose their children and those monetary losses are not insignificant.
Now I’m not comparing what is right or wrong here. I’m not comparing circumstances in any way. What I’m saying is that those conditions are the likely factors behind the violence. With that in mind, it would be better to address those conditions, instead of exasperating them. If we can solve the root causes, we can make a bigger difference in the fight against family violence.
This is a terrible and one-sided article out to beat down men… Good job Joanna I’d like to know your background… An unbalanced article -it talks a lot about some of the women’s issues and omits the fact that they also can be abusers and equally influential in parental alienation. In fact most divorces are brought by women especially later in lifeBecause of an ill defined feeling of unhappiness and then a hard-working husband who is looking forward to enjoying the fruits of their labor’s in retirement is usually stunned and left financially decimated… And older kids or teenagers of the marriage are left wondering what went on. Which parent do I believe. Trust me we see lots of women go out and find another guy and then feel the grass is greener and decide to move on and force payment to them leaving the ex-husband broke and working and giving to an ex who is re-partnered and still living off the ex-husband’s pay… Retirement party. And don’t talk about what they gave up to stay home… It was a choice to stay home… In fact many articles not to Long ago talked about the “privilege” of staying home with kids. And in this present time staying home is a willful choice… Not a “sacrifice”.
And frankly being with one parent only is never good for the child… The new divorce act it’s not good in that regard… Just because a teenager doesn’t agree with one of the parents doesn’t mean they shouldn’t have to live with that parent and follow their boundaries… Sometimes that particular parent is the only sensible one and it’s OK to not let a child run amok who does not have a well developed prefrontal cortex yet. The fact that a child or teenager would have a preference is going to be used and abused… We all know this already. It’s going to make parents compete for their children and create a more entitled generation with unhealthy dependency and broke parents trying to impress kids that don’t care a lot of the time except for what they can get. Let’s be walkabout what really goes on in divorce nowadays and the financial proxy battle of child custody, and wealth transfer disguised with terms like support and child support. A poorly written law which is poorly interpreted and the typical result of a government getting involved in private lives.
Thank you for this article. You helped me put into words things I have shockingly experienced first hand in family court. It has been more traumatizing to be in family court than my emotionally and psychologically abusive 10 year marriage. When I was brave enough to get out…..it was the lack of validation and affirmation that pushed me into a deeper spiral of trauma……I had to constantly fight against the message I was getting from ALL OF THOSE MEANT TO HELP ME…….that I was overreacting, being difficult, exaggerating. They treated me as a hysterical crazy frantic woman. I had read about this shit in women studies classes…..but it was UNBELIEVABLE to EXPERIENCE such systematic repression of women in the VERY SYSTEM I naively believed would help me and protect my children. Until the system is healed women need to be warned and prepared for this reality. The system will gaslight you!!!!
…..police officers, teachers, social workers, judges and lawyers turned them backs on us time and time again. “My daughter said to me one day, “mommy I can’t trust anyone. No one cares!”
As a mother it is horrifying to come to understand that I had brought children into a relationship that wasnt safe…..but a whole society……never did I believe that such systematic repression of woman and children existed in this day and age. My eyes are wide open. My heart ways heavy and my passion for change pushes on.
Thank you for this work. Ishtar Gabriel psychotherapist Hamilton ontario. Mother of 2 great kids
This article summarizes the failures of Canadian family courts today. Too many women are signing parenting agreements because they’re being told they’ll lose access if they speak up for their children. For this reason, the children are not having a true voice.
Resourceful article. You cleared about some of my query. These days, people face many problems in families that break peace and happiness of their lives and the issues like property settlement, unhappy married life, adoption, abduction, divorce, child support etc. These problems need extra attention to be done legally, so people need to hire family lawyer. If you want more information about divorce law you can visit divorce lawyer in Canada
Thank you for writing an article that truly depicts what many women have to face in family courts. Your last statement is so true: “What’s apparently valued is the father’s access to the child over what the child wants.”
Does it truly depict what women have to face? Women win custody more than 80% of the time. They’re enriched by a child support guideline that clearly transfers wealth. The real statistics tell a story that what women have to face in family court is nearly a guarantee of unfair benefit.
“What’s apparently valued is the father’s access.” Ya…. that isn’t apparent at all. To anyone. Even if that was true, the actual data shows that father’s access is the single greatest factor for the successful development of a child. So despite the false victim narrative, IF father’s access was actually valued, that access would prove to be the best interest of the child.
This is very profound and well researched !! I have heard of too many situations where the victims’ rights (women & children) and I am sure some men ( who have been victimized) have not been valued or respected and have ultimately suffered greatly!! Well done!!