An Estimation of the Economic Impact of Spousal Violence in Canada, 2009
3. Justice System Costs (cont'd)
3.2 Civil Justice System
Although the civil justice system may be relevant to spousal violence matters in several respects, such as torts and damages, this report covers the estimated costs for civil protection orders; court and legal aid costs related to divorce; and child protection costs.
3.2.1 Civil protection orders
To date, six provinces and three territories have proclaimed legislation that provides for court ordered civil remedies to protect persons subjected to family violence. The legislation allows for court applications for civil protection orders to provide for immediate or longer-term safety measures to protect victims from further violence. Such orders can, for example, impose no contact/communication conditions or provide for temporary exclusive occupation of the home or seizure of weapons.
According to the GSS, there were 3,843 female victims and 1,140 male victims who obtained a restraining order or protection order from a civil court in 2009 due to spousal violence. The cost of issuing a civil protection order varies significantly among the provincial and territorial jurisdictions. Based on information provided by provinces, the average cost of issuing a civil protection order in Canada in 2009 is estimated at $400. Note that due to lack of data, this figure does not include any legal fees that individuals may incur in obtaining or defending against these orders. This issuing cost only accounts for the wages of justice personnel who have some responsibility in issuing protection orders (justices of the peace, provincial court judges, superior court judges, clerks, and court recorders) and the time spent by each of the personnel on the issuing process.
Not every civil protection order application will be granted. Provincial data suggests that the number of application for civil protection order was about 1.28 times the number of order issued. Therefore, it is possible to estimate the number of orders applied for but not granted, for which resources were still used to review and to evaluate the applications. For the estimated 1,404 applications which were denied, it is assumed that the average cost of reviewing was lower at $200.
The total costs of issuing of civil protection orders as a result of spousal violence in 2009 are therefore estimated at $2,272,200.
|Civil protection orders costs – SV against females||$1,752,400|
|Civil protection orders costs – SV against males||$519,800|
|Total Civil Justice System Costs, Civil Protection Orders||$2,272,200|
3.2.2 Divorce and separation
A divorce is the legal dissolution of a legal marriage. In Canada, divorce cases are governed by the legislation contained in the federal Divorce Act. Under the Divorce Act, marital breakdown is the only ground for divorce and it can be established in one of three ways: i) living separate and apart for at least one year (separation), ii) adultery, and iii) mental or physical cruelty. The vast majority (95%) of divorces in Canada are based on the grounds that the couple has been separated for at least one year.Footnote 24 While the federal Divorce Act generally applies when divorcing parents need to settle child custody, access, and support issues, provincial and territorial laws apply regarding child custody, access and support when unmarried parents separate or when married parents separate and do not pursue a divorce. Provincial and territorial laws also apply to some issues in divorce proceedings, for example property issues.
In order to obtain a divorce, one or both parties of the marriage must file an application for divorce. In Canada, all divorces must be granted by a superior court. In most cases, the parties can work out arrangements with respect to custody, access, support, and property either on their own or with the help of a lawyer or mediator. This agreement can be turned into a written separation agreement or incorporated into a court order. In these cases, the divorce will proceed through court as uncontested. If the divorcing couple cannot agree on one or more issues related to the divorce, then the divorce will proceed as contested.
This section attempts to estimate the costs of legal actions (in the civil justice system) that are associated with the breakdown of a relationship due to spousal violence, either by way of divorce or separation. Note that since legal aid is only provided in a small proportion of divorces, the costs of legal assistance via private lawyers are therefore a private burden, and will be presented in the Victim Costs section.
The first step of this estimation is to determine the proportion of separations and divorces caused primarily by spousal violence, but in Canada, little is known. Across other countries, there is no single agreed-upon value as countries boast various cultural, economic, and legal differences. Even ascertaining a single agreed-upon value within a country is itself difficult due to the lack of national data sources and the inherent differences in how separations and divorces are measured by different data sources.
As there is little Canadian evidence, data and studies from culturally and legally similar countries (such as the US and the UK) are consulted to estimate the proportion of divorces caused by spousal violence in Canada. Work on this topic has been ongoing since the 1960s. Levinger (1966), using a sample of 600 divorcing couples, finds that 37% of divorces were caused by spousal violence in the US. Other US findings range from 19% of divorces caused by spousal violence (Kurz 1996) to 57% of women citing violence as a major factor in divorce (Ellis and Stuckless 1996). A Canadian study from the mid-1990s shows that 19% of divorced or separated women had been abused while their relationship was intact (Johnson and Sacco 1995). The research cited thus far may be outdated as the social and cultural stigmas attached to divorce and to acknowledging violence within relationships may have changed over time. These studies are, however, instructive and thus, are taken into consideration for the cost estimate.
Findings on the proportion of divorces caused by spousal violence crucially depend on the source of data or the type of survey. The proportion suggested by self-reported surveys is considerably higher than the proportion obtained from court case reviews or lawyer-reported surveys. For example, Walby (2004) uses questions related to interpersonal violence from the self-reported 2001 British Crime Survey to estimate that 29% of divorces in the UK were caused by spousal violence; and a 2008 telephone survey of more than 1,500 people in the US suggests that 36% of respondents divorced because of physical or verbal abuse.Footnote 25 Reviewing court divorce files from 1996 in Virginia, Brinig and Allen (2000) find that cruelty is cited as a cause in only 6% of divorce filings. UK organization Grant Thornton has conducted an annual matrimonial survey since 2003 in which family lawyers are canvassed, and from 2006 to 2009, the lawyer-reported survey found that, on average, emotional or physical abuse was the top reason for divorce in 10.3% of cases.Footnote 26 The results of self-reported surveys, court data, and lawyer-reported surveys are all considered here. Averaging Walby's (2004) finding of 29% and the finding of Grant Thornton's recent annual survey (10.3%), it is calculated that 19.7% of divorces are caused primarily by spousal violence.
Divorces initiated each year are recorded in the Central Registry of Divorce Proceedings (CRDP),which was established within the Department of Justice by the Divorce Act of 1968. It is estimated that in 2009 approximately 81,284 divorce applications were received by the CRDP.Footnote 27 Note that this number does not reflect the number of granted divorces in 2009, but rather the number of cases where proceedings were initiated. Using the proportion estimated above (19.7%), it is estimated that 16,013 of these initiated divorces were primarily caused by spousal violence in 2009.
Legal fees vary considerably between the two broad types of divorces – contested and uncontested. According to Kelly (2010), the majority of divorce cases (81%) handled through civil courts (in seven jurisdictions) in 2009/10 were uncontested, where both parties agreed to the divorce and any related issues, such as support and child custody and access arrangements. It follows then that 19% were contested. Applying these proportions, it is estimated that 3,042 divorce cases caused by spousal violence were contested and 12,971 were uncontested.Footnote 28 As the 2009 CRDP data suggests that for contested divorces, 94.7% of divorce applicants and 78.6% of respondents had legal representation, and for uncontested divorces, 63.6% of divorce applicants and 26.8% of respondents had legal representationFootnote 29, it is estimated that there were 5,274 legal representatives involved in the 3,042 contested divorces and 11,726 legal representatives involved in the 12,971 uncontested divorces where spousal violence was the primary cause.
According to the Canadian Lawyer's 2009 Legal Fees Survey (Harris 2009), the average legal fees in 2009 for contested divorces and uncontested divorces were $12,562 and $1,342, respectively. Multiplying the number of legal representatives by the average legal fees of each divorce type results in an estimated total of $81,987,747 in legal fees. Note that these legal costs were incurred by both legal aid and private lawyers.Footnote 30 Due to the limited data regarding the percentage of parties who received legal aid for divorce, the estimation for the legal aid costs must be based on certain assumptions, outlined below.
In 2009, total legal aid expenditures on family law issues were $182,994,500.Footnote 31 It is assumed that each type of family court case used the legal aid expenditures by its corresponding proportion of case volume. According to Kelly (2011), divorce cases accounted for about 35.4% of family court case volume in 2009/10, while 34.9% of family court case volume that year involved other forms of family breakdown which are dealt with under provincial or territorial legislation. Other family breakdown refers to cases that addressed issues of custody, access, support or division of property outside of a divorce proceeding such as cases of separation or those deciding arrangements for a child born outside a union. As it is not possible to break down into these two types, it is assumed that separation cases accounted for slightly less than 35% of the total family justice cases, at 30%. Therefore, by multiplying the total legal aid expenditures on family court cases by the respective percentages of 35.4% and 30%, we obtain that $64,780,053 legal aid expenditures for divorce and $60,388,185 legal aid expenditures for separation.
In order to determine the portion of the above divorce and non-divorce legal costs that are the result of spousal violence, the figures are multiplied by 19.7%, which, as noted above, is the proportion assigned to the number of divorces caused primarily by spousal violence (this proportion will also be applied to non-divorce cases). As a result, legal aid costs associated with divorce due to spousal violence are estimated at $12,761,670 and legal aid costs associated with other family breakdowns due to spousal violence are estimated at $10,814,975.
Assuming the costs for private legal services for divorce are equal to the costs of legal aid services for divorce, the difference between the total legal fees for divorce ($81,987,747), as derived above, and the estimated legal aid costs for divorce ($12,761,670) can be attributed to private legal assistance, and should be presented in the section on Victim Costs. Legal assistance provided by private lawyers for separation issues will be partially examined in the section of Victim Costs.
Civil court expenditures are another cost component associated with divorce. While the parties to an uncontested divorce do not have to appear in court before a judge in most provinces and territories, a court cost will still be incurred as court officials, including the judge, will have to review the documents submitted in order to grant the divorce order. However, the number of hours required by a judge and court clerks to review documents is unknown. Therefore, civil court costs are only estimated for contested divorces, thus resulting in a conservative estimate.
For this portion of the estimate, cases with trials are not differentiated from those without trials, as in Canada divorce cases rarely reach the trial stage. For example, in 2010/11, only 1% of divorce cases in six jurisdictions (Nova Scotia, Alberta, British Columbia, Yukon, Northwest Territories and Nunavut) went to trial (Kelly 2012). The data and procedure used to estimate the average cost of a criminal court case in Section 3 is applied here for civil court cases, with theexception that the increased complexity of court cases (a multiplier of 1.23) is not accounted for. With the average civil case cost estimated at $1,149 in 2009, the total civil court costs for the 3,042 contested divorce cases are therefore estimated at $3,495,798.
The provinces and territories offer a number of family justice services as part of the family justice system. Public money is spent on these programs and services that are accessible by families experiencing spousal violence. These services are provided by different branches and levels of government. For example, under the Supporting Families Initiative, the federal government provides $16 million per year to support the provision of programs and services for families undergoing separation and divorce. Specific programs and services supported by the federal government include: Mandatory Information Programs/Parent Education Sessions, Family Law Information Centres, Supervised Access Centres, the Family Court Support Worker Program (Ontario) and Mediation. The provinces and territories provide in-kind funding in addition to spending a significant amount on the provision of these services. A current estimate of the provincial contribution would be approximately $54.5 million for 2009. However, this figure would underestimate provincial and territorial spending as there are programs and services fully funded by the provinces and territories without federal contributions, for which data are not available.
Therefore, the total estimated government (provincial/territorial and federal) contribution to family justice services is $70,403,282 for 2009. All of these funds are related to divorce and separation and, after multiplying the total by 19.7% (the proportion of divorces and separations primarily caused by spousal violence), the estimated cost of spousal violence-related family justice services in 2009 is estimated at $13,869,446.
It should also be noted that there are programs and services available in areas other than the civil justice system. These expenditures are covered elsewhere in the report, for example in the Shelters and Transition Homes section and in the Other Government Expenditures section.
Given that there is no indication of the gender of the applicants in divorces caused by spousal violence, the gender breakdown of divorce applicants will be imputed using the gender proportions of police-reported spousal violence as found by the UCR2 – 81% female and 19% male. Summing all of the costs, the total financial impact (borne by the civil justice system) for divorces and separations that were primarily caused by spousal violence is estimated at $40,941,889.
|Divorce and separation costs – SV against females||$33,162,930|
|Divorce and separation costs – SV against males||$7,778,959|
|Total Civil Justice System Costs, Divorce and Separation||$40,941,889|
3.2.3 Child protection systems
Child protection systems are based on provincial and territorial child protection laws. These laws provide for state intervention where parents or legal guardians are unable or unwilling to meet the child's physical, emotional and psychological needs. The child protection services (sometimes called child welfare or children's aid) in each jurisdiction are responsible for investigating allegations of child abuse and neglect, coordinating foster care services, and arranging for adoptions. Most provincial and territorial child protection Acts expressly refer to emotional harm as grounds for protection, and some jurisdictions (Ontario and Manitoba) include the risk of emotional harm in their definition. Most Acts also include exposure to family violence (witnessing, hearing or seeing the aftermath of violence in the home) as a ground for protection.Footnote 32 Children exposed to violence may be removed from their homes and placed in foster care, extended family care, or a group home. Children who are not removed from home can receive continuous visits, supervision and assessment from child protection officials. In this section, the types of out-of-home care are grouped into two main categories depending on the funding requirements from the systems: 1. Foster care and formal kinship care (placement with alternate or person of sufficient interest placement), and 2. Informal arrangements with extended family members.
Data on child protection systems in Canada are limited. For example, the number of children involved in the system and each child's length of stay are not collected nationally. Many provinces that provide snapshots of their child protection systems are unable to continually track children and determine which children who become involved with the system actually end up in care and their length of stay. In addition, differences in legislation and investigation practices across provinces and territories, as well as changes over time, have also posed challenges in estimating the national annual incidence of reported maltreatment in Canada. In the many cases involving multi-faceted family issues, only the primary reason for involvement of the child protection system is recorded. For example, a parent's addiction may be noted as the reason for a child's involvement in a child protection system, but other issues, including exposure to spousal violence,may also be present in the situation. As a result, spousal violence may be much more prevalent as a reason for child protection involvement than is recorded.
The report, The Canadian Incidence Study of Reported Child Abuse and Neglect-2008 (CIS-2008),which is published by the Public Health Agency of Canada (2010), is the third nation-wide study to examine the incidence of reported child maltreatment and the characteristics of the children and families investigated by child protection agencies. This study covers all provinces and territories in Canada. While the study reports on short-term outcomes of child protection investigations, including substantiation status, initial placements in out-of-home care, and court applications, the study does not track longer-term service events that occurred beyond the initial investigation.
According to this study, there were an estimated of 235,842 child maltreatment-related investigations conducted in Canada in 2008.Footnote 33 Among the 85,440 (36.2%) cases which were substantiated, about 34% (29,259) identified exposure to intimate partner violence as the primary category of maltreatment. However, there were no placements in a large proportion of substantiated cases. For example, in 2008, approximately 22.9% of all substantiated investigations resulted in a change of residence for the child, where half of these children moved to foster care or kinship care and half moved to an informal arrangement with a relative. The CIS-2008 report does not provide the breakdown of placement rates by the primary maltreatment type (physical abuse, sexual abuse, neglect, emotional maltreatment, and exposure to intimate partner violence). As the placement rates vary considerably among the different primary categories of maltreatment, using the overall rate of 22.9% might overestimate the out-of-home placements due to exposure to spousal violence. Fortunately, the 2003 version of the CIS report does show the placement rates specific to each type of maltreatment, and the rate for exposure to intimate partner violence can be adjusted and applied to the data in the 2008 report.
According to The Canadian Incidence Study of Reported Child Abuse and Neglect-2003 (CIS-2003) (Trocmé et al. 2005), approximately 16.9% of substantiated investigations in Canada resulted in a change of residence.Footnote 34 As the primary category of maltreatment, neglect had the highest rate (28.0%) resulting in change of residence, followed by emotional maltreatment (18.9%), physical abuse (16.2%), sexual abuse (9.9%), and exposure to intimate partner violence (5.9%). As the 2003 aggregate out-of-home rate (16.9%) is much lower than the 2008 rate (22.9%), we need to adjust the 2003 specific rates to obtain the corresponding rates for different primary categories of maltreatment in 2008. In this way, it is estimated that about 6.6% (1,932) of substantiated investigations of exposure to intimate partner violence resulted in a change of residence in Canada. The CIS-2003 report also indicates that among those out-of-home placementsresulting from exposure to spousal violence, 41.1% went to informal kinship care whereas 49.2% went to foster care or formal kinship care. About 9.8% went to group homes, but due to a lack of data on the daily cost of maintaining a child in a group home, it is decided to redistribute the number of children placed in group homes into among the other two placement types, based on their respective proportions. Following this, we estimate that in Canada, 1,053 children were placed in foster care or formal kinship care, and 879 children were moved to an informal arrangement with a relative.
While many countries such as the US and Australia have comprehensive information regarding the length of stay for children in care, the Canadian data are very limited in this area. The only information found is from Newfoundland and Labrador, which indicates that the provincial average length of stay was roughly 2 years in 2008 (Fowler 2008). Specifically, 18% of children spent between 1 and 6 months, 29% spent between 2 and 5 years, and 18% spent between 5 and 10 years. As a comparison, the National Foster Care Coalition in the US reported in 2008 that children remained in the foster care system for 27.2 months on average,Footnote 35 while the Child Welfare Information Gateway (2011) reported that the median length of stay in foster care for children exiting the system in 2009 was 13.7 months, or 420 days. The Australian statistics show that children in extended family-kinship care are generally in care for a longer period than children in foster care. For example, the Boston Consulting Group (2009) prepared a report for the Government of New South Wales showing that children spent 4.2 years in kinship care whereas children stayed in foster care for 1.9 years. As the Canadian data from Newfoundland and Labrador does not break down the length of stay by types of care, we will apply the average of 2 years (730 days) to both foster care and informal arrangements with an extended family member.
The daily cost of caring for a child in an out-of-home placement can range from $10 to $100 and differs dramatically across jurisdictions and by type of care. For example, data from provincial sources show that kinship care costs less than foster care. While data are available from a few Canadian provinces, they are not sufficient to calculate a national average cost for foster care or formal kinship care. As such, a middle range value of $60 per day is used for this estimation. At the length of stay of 730 days, it follows that the total costs of providing foster care and formal kinship care to children exposed to spousal violence is estimated at $46,121,400.
For children who were not removed from home or for those who were moved to an informal arrangement with a relative, child protection workers will normally continue to conduct regular visits to ensure the safety of the children, to assess the family's engagement in the services provided, and to help the family establish appropriate child care routines. Due to lack of data, it is assumed that each worker meets with the family once every two weeks and spends 3 hours per visit up to 2 years. The 3 hours cover conversation time, preparation time, travel time, and paper work time. Therefore, 52 visits in 2 years amount to 156 hours of work per child. Based on data from several provinces, it is estimated that the average annual salary for child protection worker in 2009 was $51,608, equivalent to $26.37 per hour.Footnote 36 Following this, the total costs associated with regular family visits and assessments for children with no placement or children with an informal agreement with a relative are estimated at $116,032,512.
In addition to out-of-home placements, there are also investigation costs. An evaluation study conducted in Saskatchewan suggests that the average cost per child handled was about $539.43 in 1998 (Prairie Research Associates 1998).Footnote 37 While this figure might be outdated, no recent or national information can be found regarding child maltreatment investigation costs. Adjusting this figure for inflation, we obtain $675 as the investigation cost per case in 2009. By applying the cost per investigation to the number of substantiated investigations of exposure to spousal violence (29,259), the total costs of investigation for cases of child exposure to spousal violence in 2009 are estimated at $19,749,825,
In sum, the total economic impact of spousal violence in 2009 on child protection services is estimated at $181,903,737. See Appendix A for detailed calculations and sources. Given that there is no indication of the gender of the victim of spousal violence in child protection cases, the gender breakdown will be imputed using the gender proportions of police-reported spousal violence as found by the UCR2 – 81% female and 19% male.
|Child protection systems costs – SV against females||$147,342,027|
|Child protection systems costs – SV against males||$34,561,710|
|Total Civil Justice System Costs, Child Protection Systems||$181,903,737|
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