REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS
The presence of family violence can make the issues and choices that separating or divorcing parents face even more complex. The impact on the well-being of children who are direct or indirect victims of family violence is likely to be more severe and more long-term than in situations of separation or divorce in which violence is not present.
Canadians were asked to provide their views on what impact the presence of past or current family violence should have on determining the roles and responsibilities of parents at the time of separation or divorce. Options within the legal system to respond to situations of family violence may include specialized assistance or services provided to families and the victims of family violence, as well as special consideration of issues of family violence in family laws and the Divorce Act.
The views voiced on this topic reflected Canadians' strong concern for ensuring the safety of children in situations of family violence. It seems that most Canadians who took part in the consultations feel that situations of family violence need to be dealt with differently than other situations of separation or divorce. Many similar or complementary suggestions for improving the legislation and services were offered by respondents from the various provinces and territories and representing various interests. However, a number of diverging-and at times opposing-views became apparent concerning the basic foundation and set of values upon which such protection should be based.
Four key questions were asked to solicit views on what effect family violence should have on determining custody and access upon divorce or separation:
- What are the issues facing children in situations of family violence?;
- How well does the family law system promote the safety of children and others in situations involving family violence?;
- What messages would you like to see reflected in the terminology and legislation with respect to family violence?; and
- How could services in your community be improved?
A number of comments were also made with regard to the enforcement of restraining orders. These have not been addressed in the current report as they do not fall within the scope of the family law system.
Issues facing children in situations of family violence were discussed in terms of the nature of the physical and emotional harm inflicted on children and the immediate and long-term effects. There seemed to be general agreement among respondents on this question.
Physical and Emotional Harm
All respondents felt that children facing situations of family violence are commonly at significant risk of losing their physical and emotional safety and security. The loss of physical safety may include a general neglect of the children and their basic physical needs (for example, hygiene and sleep) or direct physical abuse. Emotional and psychological harm may be inflicted in a range of ways. Some people pointed out that children are often "silent victims." While children may not show signs of physical abuse, they quickly perceive the tension and conflict between their parents, and may not know how to cope with the conflict. Many times, children in situations of family violence feel isolated and blame themselves for the situation. They may lose their ability to trust and often live in fear of the next crisis erupting or of losing one or both of their parents. Such emotions may be intensified by situations in which children are forced to choose between parents. Children's inability to predict behaviour in those they love and their immediate environment adds to their feeling of loss of security and lack of sense of belonging.
Impacts on Children
Depending on the nature of the violent situation, exposure to family violence may affect children both immediately and in the long term. The exposure to violence, the sense of uncertainty and the volatility of the situation may result in a range of psychological and behavioural problems. It may affect children's ability to develop cognitive and social skills, and result in poor problem-solving abilities, inability to focus, loss of spontaneity, inability to follow rules and mood swings. Some children react to the harm inflicted upon them by, for example, acting out their anger, or developing eating disorders. Others, suppressing their emotions, turn inward and dissociate. Many children in situations of family violence develop a low sense of self-worth. Social stigma (being picked on at school or being unable to make friends) may exacerbate such feelings. Within the family, children may be deprived of their right and ability to engage in childhood activities because they are worrying about and taking care of siblings or the abused parent.
The effects on children of being exposed to family violence may linger for years, even into adolescence and adult life. Some people suggested that when children know violence as the norm they learn violent expression and behaviour. Children facing family violence may, later in life, become more susceptible to drug or alcohol abuse, develop depression or commit suicide. In the long term, the presence of family violence may also have negative effects on their career, sexual development and beliefs.
Most respondents said that the current legislative system does not adequately meet the needs of children in situations of family violence. However, the reasons for this perception vary. Critiques directed at the current legislative system included the following:
- Current family laws do not provide adequate or sufficiently immediate safety nets for victims of family violence;
- Legal barriers exist that prevent lower income groups from accessing adequate assistance;
- The current legislation makes it difficult to introduce evidence that brings the court's attention to reported and unreported violence within the family;
- The current system does not adequately recognize that both men and women in a relationship may commit violence;
- The "friendly parent" rule (subsection 16(10) of the Divorce Act) allows abusers to continue the abuse of a spouse by preventing them from taking action to protect themselves and their families. When parents being abused attempt to gain sole custody of the children with limited, supervised or no access they are viewed as "unfriendly";
- There appears to be a presumption in case law and the courts that joint custody is in the best interests of the children, but in fact it is not when there is family violence;
- In some provinces and territories, the courts disregard the problem of violence altogether, and particularly the fact that violent situations have consequences for the children; and
- The legal system is intimidating to Aboriginal people: fear of being labelled as "troublemakers" or of being "revictimized" by the courts discourages victims of abuse from reporting incidents of abuse or situations of family violence.
Some respondents took the opposite view. In their opinion, family violence is a very infrequent problem and, therefore, should not direct the entire Divorce Act. Rather, they said that family violence should be addressed outside the family law system.
Some other respondents felt that the Divorce Act is an adequate legal tool to enable the courts to deal with spousal or family violence, and in their view, it is the situation as a whole, including the history of spousal or family relations, that must be considered. They fear that addressing the special issue of spousal or family violence in the Act may push other problems into the background, giving the impression that such violence is the overriding issue. Several participants said that the law currently makes it possible to respond appropriately to violent situations, but that all practitioners, including judges, must be more sensitive to this reality and better educated about it.
Terminology and Legislation: Messages and Specific Issues
Respondents' suggestions for the overriding message that the legislation should reflect with regard to family violence fell into three areas: best interests of children; clear definition of violence; and burden of proof. These broad messages provided, to a great extent, the underlying rationale for the more specific issues that respondents said should be dealt with in the legislation.
Best Interests of Children
A majority of respondents felt that the best interests of children should be the main message conveyed through the Divorce Act and family law. The purpose of the legislation should be to ensure that children have the opportunity for healthy development, free from emotional, physical and psychological harm. It was suggested that the best interests of children must be seen from a long-term perspective, and consider the children's future development. Some stressed that the law should explicitly recognize the harm inflicted upon children who are exposed to family violence. It must also clearly state that family violence and the neglect of children is unacceptable. As such, many people said that family violence should constitute a key determinant in custody and access issues. It was also expressed by some that situations of family violence should be dealt with first before all other types of cases.
Clear Definition of Violence
Respondents stated repeatedly that, if family violence is to play a key role in determining issues of custody and access, a clear, consistent and detailed definition of violence is needed. Many perspectives on the definition and meaning were provided, as well as views on how the terminology should be incorporated into and used through the legislation.
While many respondents said that demonstrated physical violence and the continued threat of physical violence should definitely not be acceptable, they had diverging views on the definitions and potential roles of other forms of violence (such as emotional and psychological violence) in determining custody and access arrangements.
Some respondents said that there is little relationship between the role of a spouse and the role of a parent, so a parent who abuses his or her spouse may still be a good parent to his or her children, or at least be able to provide adequate parenting through access arrangements. Respondents supported a narrow definition of violence and felt that there should be a distinction among violence, abuse and conflict, as well as between domestic and family violence. Respondents argued that abuse and conflict differ from violence, and some said that they are less harmful than physical violence and may be addressed through preventative measures (such as education and support services).
Other respondents argued that spousal abuse should be considered when determining a parent's custody of and access to the children. These respondents said that all forms of abuse or violence are an abuse of power between parents or between parents and their children, and should, as such, be treated equally seriously. They also said that witnessing violence constitutes a direct form of violence. Therefore, legislation should address children who are exposed to violence, rather than children who witness violence, as this would better reflect the reality of family violence and the harm done to children. Some of these respondents also suggested that, while subtle forms of violence between parents or towards children are more difficult to define and assess than, for example, direct physical violence, they should nonetheless be considered just as important.
There was disagreement on whether violence should be considered in the context of past conduct. Some argued that the legislation should only consider chronic situations of violence, in particular, a parent's demonstrated pattern of violent behaviour (as opposed to an isolated occurrence of violence). Others argued for "zero tolerance" of violence with definite consequences for abusers. Other points raised with regard to this issue include the following:
- Proving a history of violence is difficult because many abused women never report incidents of abuse or seek medical attention;
- Attempting to prove violence may, in some cases, endanger women and children more;
- The law needs to recognize the potential for re-offence and for increasingly severe violence (including after separation); and
- Child custody and access situations may present opportunities for new forms of abuse (for example, using court hearings and access arrangements to stalk or harass the victim, or inflicting economic abuse), and this needs to be considered during decisionmaking.
Suggestions for the most effective way to incorporate family violence into the legislation included changing the Criminal Code so that it acknowledges family violence (as a criminal offence), and including family violence in the "best interests" test in the Divorce Act.
However, some respondents stressed the difficulty of incorporating an appropriate definition of violence into a statute.
Burden of Proof
Two opposing viewpoints are apparent on the issue of how to allocate the burden of proof when family violence or abusive behaviour is alleged. Some people said that when allegations of violence are made the onus should fall on the alleged perpetrator to prove his or her innocence. Others said that the accusing spouse should present proof of the violence inflicted.
Points raised by respondents in favour of the first perspective include the following:
- There is already a tremendous onus on victims to provide proof of abuse and false allegations are seldom made in the first place;
- The legislation should assume that an unsubstantiated allegation does not mean a false allegation;
- In accordance with the best interests of children, all allegations should be considered seriously; and
- A gender-based analysis of family violence is appropriate. This would explicitly recognize that victims of abuse are more often women than men and that women are inherently disadvantaged in terms of power and socio-economic status.
Points raised by those in favour of the second perspective include the following:
- The current legislative system is inherently biased against fathers, who are frequently assumed to be the perpetrators of violence;
- There is an ongoing problem of false allegations of violence resulting in innocent parents (often fathers) being denied access to their children;
- The basic principle should be that allegations need to be proven, not assumed;
- A gender-neutral approach to the legislation is appropriate; and
- There should be no legislated presumptions for resolving custody and access issues.
Respondents provided many specific suggestions about how the current legislation could be improved. These primarily concerned allegations of abuse, assessments of violence and the role of the courts.
Allegations of Violence
Most people agreed that allegations of violence need to be investigated thoroughly, and that improvements are needed in the legal system to maintain accurate records and information. Respondents suggested that the legal system must provide mechanisms to adequately deal with allegations of family violence. Suggestions for how to accomplish this reflect the division of perspective on burden of proof (as discussed above). Some people emphasized that false allegations should be considered a criminal offence and that strong penalties should be imposed for allegations that are proven false. These respondents argued that the alienation of one parent from his or her children as a result of false allegations constitutes a form of emotional child abuse. Other people stressed that, when allegations of violence are made, it should be possible for judges to immediately make interim arrangements for the protection of the children until the allegations have been proven true or false. These respondents added that, as it is often very difficult for victims to present proof of abuse, the context in which allegations are made needs to be considered in such investigations.
Assessments of Family Violence
Closely linked to the suggestions on addressing allegations of violence are suggestions for improving the approach to assessments of family situations. Some people expressed concern that, due to inadequate assessments of family situations during separation and divorce, cases of family violence are sometimes not identified. Suggestions made include the following:
- Screening tools need to be developed and used to assess violence in the early stages of the legal process to determine the nature and seriousness of the violence and the degree of risk to the children;
- These assessments would then be used to determine the level of access granted to each parent;
- The unique circumstances of each situation of family violence need to be thoroughly considered in each assessment, which makes it difficult to set out a template for assessing violence;
- "Family profiling" should be introduced into the family law system, by which each family situation would be classified according to the seriousness of its situation (from "high profile" to "low profile"); and
- Issues pertaining to the victim's situation and both parents' ability to fulfil their parenting roles should also be considered.
Role of the Courts
Many respondents said that, in addition to a clear definition of violence, judges need more guidance on how to deal with issues of family violence when making decisions on custody and access. Many called for greater consistency in how court decisions are made. Suggestions put forth include the following:
- Develop guidelines on children's safety (although some people pointed out that this needs to be approached with caution as a certain amount of judicial discretion is necessary);
- In response to the general difficulty of proving abuse, develop indicators of violence (including emotional abuse);
- To acknowledge the negative effects of violence on the spouse, children and the wider community, allow a victim impact statement to be read in family court;
- Develop a detailed framework for considering all qualitative and quantitative factors of family violence;
- Let a panel of judges (or experts, such as child psychologists) determine custody and access issues;
- Consider criminal charges in the overall determination of the best interests of children;
- Coordinate efforts between family law and criminal law, so that information disclosed in criminal court is transferred to family court; and
- Require judges to verify whether conjugal violence is involved.
Some people said that, when considering the best interests of children, the role of courts should be minimized. Alternatives were suggested, including the following:
- When Native people are involved, traditional methods for dealing with family violence should be considered before turning to the courts and elders and traditional knowledge be recognized as an alternative to the courts; and
- Pre-trial conferences should be used to better manage conflict and possibly avoid having to go to court.
Other Determinants of Custody and Access in Situations of Family Violence
Respondents also made the following points regarding legislative responses to situations of family violence:
- The law should recognize that mediation is not a safe alternative when family violence is involved with separation or divorce. Mediation should not replace legal proceedings in cases of family violence;
- Offenders should be required to accept treatment or counselling before access rights are granted (others disagreed with this suggestion, suggesting instead that counselling be voluntary); and
- As long as access is supervised, according to some respondents, children generally benefit from maintaining contact with both parents. Others felt that access to children should generally be denied to abusive parents.
The consultation solicited views on the five options for legislative change in the area of family violence set out in the consultation document. As is presented below, most of the input received concerned options 3, 4 and 5.
Make no change to the current law.
Most respondents called for some change in the legislation and therefore did not support option 1. However, a few people did indicate that they were in favour of making no changes to the current law. Their reasons were as follows:
- Strong legislative and procedural processes are already in place to address concerns of family violence. Violence is a factor that is currently carefully considered in court through the "best interests" test;
- Highlighting family violence could lead to increased false allegations of violence, which, in turn, could lead to inadequate consideration of other factors of significance to the best interests of children;
- Government involvement in resolving issues of family violence should be minimal; and
- It is more important to ensure affordable services (such as counselling and supervised access) than focus on making legislative changes.
Include a general statement in the law that acknowledges that children who are victims of violence or who witness violence are negatively affected, and that family violence poses a serious safety concern for parents and children.
Many respondents favoured this option, most commonly in combination with one or several of the other options. Some felt that this option could not stand alone, as it fails to provide a framework to effect change.
Those who indicated a preference for option 2 alone gave the following reasons:
- Laws against violence already exist in Canada and so repetition in the Divorce Act would be confusing; therefore, it should be sufficient to include only a general statement acknowledging the harm that violence inflicts on children; and
- If the laws were changed so that making false allegations of abuse was easier, conflicts between parents would be significantly intensified, which would eventually be harmful to children.
Make family violence a specific factor that must be considered when looking at children's best interests, and when making parenting decisions.
As described in the sections "Clear Definition of Violence" and "Role of the Courts," above, many people said that family violence should be made an explicit factor for determining custody and access issues. As with option 2, respondents generally preferred option 3 in combination with one or several other options.
Some people who indicated that option 3 should be the principal legislative change, said that violence must be considered immediately so that quick action to remedy the situation can be taken. Respondents said that this option might address existing frustration that spousal abuse history is not taken into account when arranging custody and access. Respondents also said that the courts must conduct proper assessments of the situation before determining custody and access arrangements.
Some people argued that making family violence a specific factor for judges to weigh at their discretion would not likely result in the consistency and predictability required to adequately respond to this issue. Others argued that highlighting family violence in the law might lead to an increase in "parental alienation syndrome" or false allegations of abuse.
Some respondents suggested combining options 2 and 3, stating that option 2 may be more appropriate for responding to sporadic, isolated incidents of abuse (family violence may be a consideration) while option 3 may be better applied in cases of ongoing physical violence (violence must be a consideration).
Establish a rebuttable presumption of limited parental contact and a limited decisionmaking role for a parent who has committed family violence.
Many respondents indicated that this option should be the main legislative change. Others preferred this option in combination with one or several of the others.
Many people were in favour of this option, stating that children's safety should always override parents right to parent. Several qualifying factors were suggested, however, with regard to the appropriate implementation of this option, including the following:
- A rebuttal presumption against custody and for limited parental contact unless the parent can prove that such a limit is not in the children's best interests requires strong direction about the criteria and type of evidence by which courts can vary a custody and access order to prevent further abuse and harassment;
- The standard of proof to trigger the rebuttable presumption should be presentation of credible evidence, as opposed to, for example, proof beyond a reasonable doubt. This is based on the argument that victims of violence are prone to hide or deny their abuse;
- Trained family law court judges must rule on these cases, since they are deciding how much contact a parent might be granted. This should be dealt with case-by-case;
- Cases of restricted access, when the non-custodial parent receives counselling or other assistance, should be re-examined every few months; and
- A violent partner should not have access until there is clear evidence of a change in behaviour.
Those who argued against option 4 generally said the following:
- The wording is too vague and, as such, will make decisions on custody and access more complicated;
- The presumption of limited contact may encourage false allegations by parents wanting custody of their children;
- Perpetrators should not be granted access, but be subject to a rebuttal in due time; and
- It is not in children's best interests to be placed in the custody of a parent who has abused them or the other parent (this should be included as a statutory presumption).
Restrict the impact of the "maximum contact" provision by moving the principle from section 16(10) of the Divorce Act into the section that deals with the "best interests of the child."
Some people were in favour of this option, in particular for situations in which the children are deemed not to be at risk. This argument is based on the assumption that children benefit from continued contact with both parents, including the abusive parent, as long as adequate supervision is ensured. Many people felt that, again, a timely assessment to determine the possible effects of violence would be required if this option were to be implemented.
Those who argued against option 5 suggested that this change would not be acknowledged in the courts. They also felt that this option fails to adequately ensure the safety of children and victims of abuse.
Many respondents suggested that mechanisms for implementing legislative changes need to be put in place.
Family violence must be dealt with expediently. One suggestion was a "fast-track" judicial process for cases in which family violence is a concern.
The legislation needs to ensure adequate follow-up and review processes for decisions made on custody and access when family violence is involved.
Some people said that stricter enforcement mechanisms must be put in place to ensure that decisions on custody and access made to protect victims of violence are adhered to. Suggestions include the following:
- Establish effective enforcement mechanisms to ensure victims' safety outside the courts;
- Improve communication between the police and social services; and
- Apply penalties for false allegations.
Improvements to services that respond to family violence were suggested on three levels:
- the general approach or set of values upon which service provision should be based;
- the structural or organizational provision of services at large;
- ideas for new services and for improving particular services;
Other respondents called for consideration of other measures such as seminars on conjugal violence or on children who have witnessed it, and for support and mentoring services for children who have been victims of, or witnesses to, such violence; and
Respondents stressed the importance of creating protective environments for children.
Respondents expressed views on the overall values that should direct service provision. These values, set out below, partly reflect respondents' views on the message legislation should communicate about family violence.
Structural and Organizational Approach
Many of the suggestions made for improving services concerned the overall structure and organization of service provision, rather than the quality of specific services. The following improvements were suggested.
Specific Services and Improvements to Existing Services
Respondents listed a number of services as important parts of the response to family violence. Respondents acknowledged that some of these services already exist, but felt the public must be more aware of them and have easier access to them. Others suggestions below are for new services. It was also mentioned that faster and safer mechanisms in cases of violence or conflict, including fast-track legal procedures should be considered.
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