Best Practices for Representing Clients in Family Violence Cases

Part II: Managing the File

Mediation

Mediation is a powerful tool for resolving family law disputes but in family violence cases, it is often inappropriate, in light of the safety issues and the extreme power imbalance, and should be avoided.[37] Mediation is predicated on relatively equal power positions and on both parties genuinely desiring to settle their differences and on a willingness to listen in good faith. Abusive spouses may have little or no interest in listening or reaching an agreement. Inequalities in bargaining power may be difficult or impossible to overcome, even with a mediator. Moreover, abused women report feeling re-victimized by the mediation process.[38]

The main concern with mediation in family violence cases relates to an inability on the part of some mediators to recognize and respond appropriately to family violence issues.[39] A Nova Scotia study of family mediation found that: (1) mediators did not reliably screen out family violence cases or limited the screening to physical abuse; (2) mediation was not terminated even where women reported ongoing harassment, stalking or continuation of family violence to the mediator; (3) some mediators did not appreciate safety risks (including giving the woman's phone number to her spouse after being asked to keep it confidential and leaving the woman alone with her spouse during mediation despite being asked not to do so); (4) mediators did not permit the women to have a lawyer or support person with them during the mediation. Mediators also tend to favour joint custody, regardless of whether abuse is present.[40] A recent American study found that mediators recommended joint custody in ninety-one point four percent of family violence cases.[41]

Notwithstanding these concerns, a 2001 American study concluded that fifty to eighty percent of cases referred to Court-based mediation programs involved family violence.[42] Abused women feel pressure to agree to mediation when it is raised by Court staff, lawyers, and judges.[43] Family lawyers should explain to their clients why mediation is inappropriate and be ready to advocate with judges and Court staff to ensure that abused clients are not re-victimized.

Custody and Access [44]

Men who physically abuse their partners are twice as likely to seek sole custody as men who do not abuse their partners. [45] A custody application can be a very effective tool to reestablish control over an abused spouse whose primary fear is losing her children. A custody application (or even the threat of one) can be used to coerce an abused spouse to return to the relationship or extract concessions in virtually every other area, from access, to valuation of assets, and waiver of rights with respect to the matrimonial home or a pension. Abused women are particularly vulnerable to these tactics because they often view their spouses as all-powerful. They may believe that their spouse can carry out threats with impunity and will not be held accountable by the law, or may fear that their spouse can improperly influence the judicial process.[46]

Abusive spouses are often much more willing than other parents to involve their children in custody and access disputes through inappropriate disclosure of separation-related details and issues, pressure on the children to choose the abusive spouse over the other parent, extravagant promises and bribery for aligning with the abusive spouse and punishments (including threats to drop out of the child's life entirely) if the abusive parent does not get his way. This becomes particularly significant once the child is old enough to have his or her wishes considered by assessors or judges.

Recommended Order: Sole Custody, Specified Access, No Direct Contact Between Parents

The recommended order in cases involving ongoing family violence issues is sole custody to the non-abusing parent (usually the primary caregiver) with specified access to the abusing parent and no direct contact between the parents.[47] Access may or may not be supervised, depending on the level of risk.

Sole Custody

It is unrealistic to expect an abusive spouse to engage in the cooperative decision-making that characterizes joint and shared custody arrangements. In the hands of an abusive spouse, decision-making power can be used as a tool for continued harassment, including "arbitrary or capricious decisions and changing decisions multiple times, insisting on certain decisions, linking one decision to another, and making threats."[48]

Clients leaving abusive relationships should be strongly advised not to agree to joint custody or decision-making arrangements. [49] While such an agreement may temporarily resolve legal proceedings, it has the effect of moving the battleground back to the homefront and perpetuating the conflict until the children are grown.

While the relatively new concept of parallel parenting can be useful in high conflict cases with two competent parents, it is contra-indicated in cases where there is "any clinical or legal finding that one parent poses a physical, sexual or emotional threat to the children, or that there are concerns of violence towards the other parent."[50]

Specified Access

Specified access means that the significant aspects of access are detailed in the agreement or order. Ambiguity or vagueness creates an opportunity for conflict and control by an abusive spouse. Common phrases such as "reasonable access", "every other weekend", "alternate holidays", or "as agreed by the parties", are ineffective and can be dangerous in family violence cases.

It should be apparent on the face of the agreement or order exactly what conduct is prohibited and when each parent is to have the children with him or her, including exact times and places for pickup and drop-off. Provision for automatic make-up access if a child is ill should not be routinely used in family violence cases as it can be employed as a tool for harassment of the abused spouse. If a make-up provision is used, it should include specific alternate dates and times for make-up access. Children should not be left with the discretion to extend access at their wishes as it can lead to them being coerced or manipulated. The disadvantage of specified access is loss of the flexibility with child-care arrangements that most separated parents enjoy.

No Direct Contact between Parents

Access to the child is access to the custodial parent. [51] Any contact between the parents significantly increases the risk of verbal, emotional or physical abuse and provides the abusive spouse with an opportunity for "control, intimidation and violence."[52] One study found that "twenty-five percent of batterers used access as a means of threatening or continuing their abuse of their partner."[53]

The best way to protect an abused client, in addition to a thorough safety plan, is a term in any custody, access or support order requiring that the abusive spouse have no contact with the other spouse. Exceptions for access or discussion regarding children should be crafted with care. Preventing direct contact may prevent physical abuse, but it does nothing to alleviate verbal or emotional abuse, which many women report can be more debilitating than physical abuse.[54] Permitting telephone contact can facilitate access but also carries risk. Some clients report success with contact only by e-mail, which has the advantage of creating a permanent record.

An effective no contact clause should provide for "no contact of any kind, direct or indirect" and then go on to set out any necessary exceptions. Access with children should be structured around a third party designated in writing by the custodial parent (ideally someone acceptable to both parents, but at least someone with whom the abused parent feels safe). All communication and access exchanges should be through the third party as a pre-condition of access. Such orders may also require the abusive spouse to remain a certain distance away from the woman's home or workplace, the children's school, etc. Unless they must remain secret, each prohibited address should be set out in the Order, along with the prescribed distance (e.g. 100m).

Family lawyers need to have a good working knowledge of the support programs available in their area for supervised access, parent education, counseling and therapy. Assess the efficacy and comprehensiveness of whatever resources are available. Determine the cost of any relevant program and take a position as to who should bear the cost. Research whether the Courts have commented positively or negatively about a particular program. When advocating for the Court to order participation in a program it is necessary to call evidence as to the existence of relevant programs, eligibility, the services to be utilized, the cost and any relevant time frames.

Supervised Access

Supervised access is used when there is risk to the child but it is in the child's best interests to continue with access. Orders for fully supervised access are rare (only ten percent of family violence cases in one study),[55] perhaps because supervised access is far from ideal: it is cumbersome, "intrusive, expensive and artificial." [56] Supervised access is best utilized as a temporary means to continue contact while abuse allegations are being investigated or an abusive parent is participating in counseling or treatment.

In lower risk cases, access may be privately supervised by trusted relatives, friends or adult babysitters. In higher risk cases, access should be professionally supervised by a psychologist, social worker, or through a supervised access centre.[57] The abused spouse must have confidence in the access supervisor and should have a reasonable veto power. The abused spouse should never be the access supervisor as it puts her at risk.

While fully supervised access is rare, it is more common for Courts to order access exchanges to be facilitated or supervised. In decreasing order of safety to the abused spouse, the options are: (a) third party access exchanges where the children are picked up and dropped off through a third party so that the parents have no direct contact; (b) access exchanges supervised by a third party; (c) access exchanges by the parents in a public place; and (d) curbside pickup and drop-off, where one parent remains in his or her vehicle and the other at the front door. Curbside pickup/drop-off should only be utilized in low risk situations where the abusive spouse is likely to comply with the provision.

Public access exchanges are not without risk. In December 1999 an Ontario woman was shot and killed in front of her children by her estranged husband during an access exchange in a hotel parking lot. Her request for a police escort had been refused.[58]

No access

Courts terminate access only in the most extreme cases of family violence (fifteen percent of family violence cases in one study) .[59] Typical reasons for terminating access include: (1) if the abuse is directed at the child as well as the spouse; (2) access is not benefiting the child; or (3) the abuse affects the mother's ability to care for the children. Access is seldom denied on the basis of the need to ensure the abused parent's safety or well-being.[60] Given the current state of the law, the vast majority of abused parents will have to find a way to cope with the abusive spouse having ongoing access visits with the children.

Child Protection Services

Exposure to family violence is now considered a child protection issue.[61] Paradoxically, family law proceedings may award unsupervised access to a father who has abused the children's mother, while child protection authorities advise the mother that she may be unsuited to parent her children if she cannot protect them from witnessing abuse.[62]

Generally, child protection services will not intervene (or will take a passive approach) if the abused parent is taking adequate steps to protect the children. It is clear that child protection workers are reluctant to apprehend children on grounds of exposure to family violence. Substantiated cases of exposure to family violence only resulted in a change of residence for the children involved in four percent of cases and half of these (two percent) were informal kinship care placements.[63]

Breaches

Enforcement of family law orders is often problematic. Police may decline to intervene on the basis that the matter is a civil dispute, although this can be countered to some extent by including a peace officers assistance clause in any family law order. Nova Scotia's Court-approved precedent clause reads: "All Sheriffs, Deputy Sheriffs, Constables and Peace Officers shall do all such acts as may be necessary to enforce this Order and for such purposes they, and each of them, are hereby given full power and authority to enter upon any lands and premises whatsoever to enforce the terms of this Order."[64]

Often, the only legal remedies for breaches of family law orders are applications to vary custody or access in light of the change, or contempt of Court applications.[65] Such applications are rare, not because orders are infrequently breached, but because the process does not involve the same kind of police assistance, prompt reaction and timely resolution as is available with breaches of bail conditions or probation orders.

Criminal Charges, Restraining Orders, Peace Bonds and Civil Anti-Family Violence Statutes

If a client's spouse is charged with a violent offence against her, the spouse is generally released on condition that he have no contact with her. Pro-charge, pro-prosecution policies in force across Canada may require the Crown to proceed with the prosecution even if the complainant does not wish to co-operate.

One unintended effect of pro-charge, pro-prosecution policies in many jurisdictions was a significant increase in cases in which both spouses are arrested and charged.[66] When police arrive, both spouses may claim to be the victim; if force was used in self-defence, both may have injuries. A pre-emptive call to police by the batterer may lend credibility to his claim that he was the victim (a tactic known as "s/he who calls the police first, wins"). If an abused spouse calls police and ends up facing charges herself, she is unlikely to involve the authorities the next time she is assaulted. To combat this problem, many jurisdictions have developed primary physical aggressor guidelines directing police officers to consider issues such as self-defence, previous history of family violence, and differences in physical size before laying charges. [67]

If convicted of a spousal assault, the first offence usually results in a sentence of probation, unless the assault was very serious. [68] In a Nova Scotia study, family violence related convictions resulted in jail time in twenty-two percent of cases and conditional sentences in eight percent of cases. [69]

Judicial interim release conditions almost always include a no contact provision, making it unnecessary to apply for a concurrent peace bond or for relief under a provincial anti-family violence statute unless additional relief is sought.

Seven Canadian jurisdictions now have civil domestic violence statutes in force: Alberta, Manitoba, Nova Scotia, Prince Edward Island, Saskatchewan, Northwest Territories and Yukon. Newfoundland and Labrador's legislation came into force on July 1, 2006. Ontario's legislation passed in 2000 but there is no indication of when, or whether, it will come into force. British Columbia, Quebec, New Brunswick and Nunavut do not have civil domestic violence statutes.[70] British Columbia does have a Protection Order Registry. [71]

When relief is sought in the form of a restraining order under a provincial domestic violence statute or a peace bond pursuant to s.810 of the Criminal Code or the common law, it is insufficient for the client to simply state that she was assaulted. Courts require specifics: dates, places, triggering events, the type of assault (kicking, slapping, choking, etc.), exact words spoken or threats uttered (if remembered), injuries suffered and treatment received (if any). Many abused women are exquisitely attuned to their spouse's behavioural patterns and can sense when a violent outburst is imminent, but they may have difficulty obtaining an order without evidence of recent violence.

Peace bonds and restraining orders are regularly denied on the basis of insufficient evidence. Common problem areas include: if the overall level of physical violence is low; if the last assault was months or years in the past; if the woman has been cross-charged with assaulting her spouse; if she states that she does not fear her spouse; [72] and sometimes even if she sends her children on unsupervised access visits with her spouse. The only thing worse than needing a peace bond is needing one and not getting it. Any success in Court will embolden an abusive spouse and could shatter the abused woman's confidence in herself and her faith that the justice system can protect her. Peace bonds and restraining orders should ideally be sought with a lawyer's assistance and after a thorough assessment of the benefits and risks.

If a no contact order is granted criminally or civilly, advise the client not to permit any contact. In particular, she should not initiate contact with her spouse. Voluntary contact by the abused woman does not vitiate the order in law but certainly comes close in practice. She should be advised to report every breach as soon as it occurs, even if there was no violence. Some police officers may be reluctant to lay charges for breaches that do not involve criminal acts, but all breaches increase her risk.

Enforcement can be facilitated by filing a certified copy of the peace bond or restraining order with police and asking that it be entered into the Canadian Police Information Centre (CPIC) in provinces where this is not done automatically. The Order must include specific, detailed information and an expiry date not more than five years in the future.[73] The client should be provided with two certified copies of the Order, one to keep in a safe place in her home, the other to carry with her.

Recanting clients

The cycle of violence is such that it is not uncommon for abused women to report an assault when it occurs, reconcile with her spouse during the "loving contrition" phase, then recant or refuse to testify at her spouse's trial.

Recantations can complicate family law proceedings if they result in an acquittal in a criminal proceeding, particularly if the woman testifies that no violence occurred. An abused spouse who recants will have great difficulty proving the abuse in family proceedings. Corroboration and/or expert evidence regarding the cycle of violence will likely be necessary.

Acquittals

Judges in family law proceedings may be reluctant to accept family violence allegations where a spouse was acquitted in a criminal proceeding, notwithstanding the differing standards of proof (beyond a reasonable doubt versus balance of probabilities) and focus of the inquiry (criminal liability versus best interests of the child). Evidence of an acquittal is not admissible in subsequent civil proceedings to prove that the accused person did not commit the offence and lawyers should be ready to provide authority to this effect.[74]

The Problem of False Allegations

Typically the issue of false allegations focuses on false claims of abuse by women ostensibly attempting to gain an advantage in custody and access proceedings. However, one study of Canadian cases between 1996 and 2000 found that abusive men were more likely than women to make false allegations of spousal or child abuse in custody or access litigation.[75] While false allegations do occur, according to Professor Nicholas Bala, "the vast majority of allegations of spousal abuse are true, and the reality is that perpetrators of abuse are much more likely to deny or minimize abuse than 'victims' are to fabricate. Indeed, the problem of false recantations by genuine victims due to intimidation, pressure or guilt is more common than fabrication."[76]

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