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.”