Best Practices for Representing Clients in Family Violence Cases

Endnotes

  • [1]  Cynthia L. Chewter, B.A.(Hons.), LL.B. Ms. Chewter is a member of the Nova Scotia Barristers' Society with extensive experience representing women leaving abusive relationships. She has published and spoken on family violence issues and teaches Family Law at Dalhousie University's Faculty of Law.

  • [2]  This paper is adapted from Cynthia L. Chewter, "Violence Against Women and Children: Some Legal Issues" (2003) 20 Can. J. Fam. L. 99.

  • [3]  Statistics Canada (2005), Family Violence in Canada: A Statistical Profile 2005, at 14.

  • [4]  Ibid.

  • [5]  Ibid., at 16

  • [6]  The focus of this article is on violence against women in heterosexual relationships. However, spousal violence affects both genders and all socio-demographic groups: supra, note 3, at 17.

  • [7]  Lenore Walker, The Battered Woman (New York: Harper & Row, 1979) cited in Carole Curtis' excellent article, "Representing the Assaulted Woman in Family Law Cases: A Practical Approach" Toronto , 1999.

  • [8]  A sample screening tool is available on-line at the American Bar Association website. The mediation screening tool used by the Nova Scotia Supreme Court (Family Division) is included as Appendix "A" in Cynthia L. Chewter, supra, note 2.

  • [9]  Neil Websdale, "Lethality Assessment Tools: A Critical Analysis" (Minnesota : Center Against Violence and Abuse, February 2000). Some of the reasons for this reluctance include concerns about systemic discrimination, distrust of authority figures, and cultural pressure to maintain the sanctity of the family to outsiders.

  • [10]  Manitoba Association of Women and the Law, "The Client in Crisis: A Guide to Risk Assessment" (Winnipeg: Manitoba Association of Women and the Law, 1999). This is an excellent guide for lawyers representing women leaving abusive relationships.

  • [11]  Carole Curtis, supra , note 7 at p. 30.

  • [12]  This may be because it is not safe for her. Before leaving messages that could be traced back to a law office or sending correspondence on letterhead, lawyers should ensure it is safe to do so.

  • [13]  For a list of common indicators of emotional abuse and neglect, visit the National Clearinghouse on Family Violence website.

  • [14]  Nathalie Des Rosiers and Louise Langevin, Representing Victims of Sexual and Spousal Abuse (2002, Chapter 2, at 1) Quicklaw database RVSS.

  • [15]  Supr a, note 9.

  • [16]  Final Report of the Ad Hoc Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse Policies and Legislation (Ottawa: Department of Justice, April 2003) available on-line. A sample risk assessment tool by Barbara J. Hart, Esq. called "Assessing Whether Batterers will Kill" is re-printed with permission as Appendix "B" in Cynthia L. Chewter, supra, note 2 at 172. A newer tool called B-SAFER was created by P. Randall Kropp and Stephen D. Hart and is discussed in their paper "The Development of the Brief Spousal Assault Form for the Evaluation of Risk (B-SAFER): A Tool for Criminal Justice Professionals" available on-line. Other tools in use include SARA (Spousal Assault Risk Assessment) developed by Kropp, Hart, Webster and Eaves, 1994 and 2000; and ODARA (Ontario Domestic Abuse Risk Assessment) developed by Hilton, Harris, Rice, Lang, Cormier and Lines, 2004.

  • [17]  Supra, note 3, at 48-49.

  • [18]  J. Campbell et al., "Medical Lethality Assessment and Safety Planning in Family Violence Cases" (2003) 5 Clinics in Family Practice 101.

  • [19]  Supra, note 9.

  • [20]  Supra, note 3, at 50.

  • [21]  Ibid.

  • [22]  Ibid.

  • [23]  Ibid., at 51.

  • [24]  Ibid., at 35.

  • [25]  J.E. Baileyet al. , "Risk Factors for Violence and Death of Women in the Home" (1997) 157 Arch. Int. Medi. 777 at 782 cited in J. Campbell et al., supra, note 18.

  • [26]  Supra, note 3, at 49.

  • [27]  Supra, note 9.

  • [28]  Melanie Rosnes, "The Invisibility of Male Violence in Canadian Child Custody and Access Decision-Making" (1997) 14 C.J.Fam.L. 31.

  • [29]   Ibid., at 62.

  • [30]  Ibid., at 33.

  • [31]  The information can be found on-line.

  • [32]  The main safety-planning page can be found on-line.

  • [33]  Dawn Russell and Diana Ginn, Framework for Action Against Family Violence: 2001 Review ( Nova Scotia : Department of Justice, 2001). Victim's Support Services at 6 on-line.

  • [34]  The Ontario Bar Association's Personal Security Handbook 2005 provides advice to lawyers on risk assessment and home and office security. The fee is $25.00 (free for CBA members) and can be ordered or downloaded. The American Bar Association's domestic violence screening tool also addresses safety for lawyers and support staff. It is available on-line.

  • [35]  Supra, note 33, Summary of Findings at 4. The statistics are based on data collected in 1997, after Nova Scotia instituted a pro-charge, pro-prosecution policy for family violence.

  • [36]  For more information on representing difficult clients generally: see Carole Curtis, "Dealing with the Difficult Client" (2003) available on-line.

  • [37]  See S. Grace Kerr & Peter G. Jaffe, "The Need for Differentiated Clinical Approaches for Child Custody Disputes with Findings of Family Violence and Legal Aspects of Family Violence and Custody/Access Issues" (Paper presented at the Federation of Law Societies of Canada's National Family Law Program, 1998 at p. 23); Transition House Association of Nova Scotia, Abused Women in Family Mediation: a Nova Scotia Snapshot, 2000 at 7 reported an eighty-four percent failure rate for mediation in family violence cases.

  • [38]  Ibid., at 7.

  • [39]  Family Mediation Canada's Practice, Certification and Training Standards do address family violence. The Standards provide at section 2.14: "2.14 Ensure that agreements reached in cases involving past patterns of abuse in the family give first priority to the safety of all family members, and second priority to the psychological health of primary caregivers and their children. Maximum contact is a factor only when consistent with the first and second priorities set out above." The Standards are available on-line.

  • [40]  Supra, note 37, at 13-15; see also Family Mediation in Canada: Implications for Women's Equality (Ottawa: Status of Women Canada, 1998).

  • [41]  Nancy E. Johnson et al., "Child Custody Mediation in Cases of Family Violence: Empirical Evidence of a Failure to Protect," (2005) 11 Violence Against Women 1022 at 1035 cited on the American Bar Association website. See also Peter Jaffe, Claire Crooks and Nick Bala, Making Appropriate Parenting Arrangements in Family Violence Cases: Applying the Literature to Identify Promising Practices, Department of Justice Canada, 2006 at 28-29. A copy of the paper is available online.

  • [42]  A. Zylstra, "Mediation and Family Violence: A Practical Screening Method for Mediators and Mediation Program Administrators" (2001) 2 J. Disp. Resol. 253.

  • [43]  Supra, note 40, at 16.

  • [44]  The custody and access recommendations in this paper are directed at cases in which there is an ongoing risk of one or more types of abuse, including verbal and emotional abuse. Eruptions of physical violence often represent the tip of a very large iceberg. There may be years of controlling behaviour, verbal abuse and emotional abuse beneath the surface. Care must be taken to craft custody and access provisions that address all of the relevant types of abuse in a relationship, even if the level of physical violence in a relationship was low, or if the last physical assault was years before. It is also important not to adopt a one size fits all approach to family violence cases. Dr. Peter Jaffe, Dr. Claire Crooks and Professor Nick Bala point out in Making Appropriate Parenting Arrangements in Family Violence Cases: Applying the Literature to Identify Promising Practices, Department of Justice Canada, 2006 at vii-viii: "First, the context of the violence is an important factor. For example, violence that was more severe, accompanied by a pattern of power and control, engendered fear, and was part of an ongoing pattern indicates the need for more restrictive access than historical, minor, isolated incidents of violence that were out of character for the perpetrator... there needs to be a distinction between minor, isolated acts and acts that occur as part of a pattern of abuse which engenders fear and poses a risk of future harm for family members." At page 11 of their paper, the authors define isolated acts as cases in which "the use of violence is highly uncharacteristic and not used in the relationship to exert power or control. The violent incident may occur in a highly stressful situation and the perpetrator normally recognizes the behaviour as inappropriate." A copy of the paper is available online.

  • [45]  American Psychological Association, Violence and the Family: Report on the American Psychological Association Presidential Task Force on Violence in the Family (Washington: American Psychological Association, 2003).

  • [46]  Supra, note 11, at 43.

  • [47]  Mothers received sole custody in three-quarters of the cases in one study, while the single most common access order (in about forty percent) of the cases was for unsupervised, specified access. Martha Shaffer and Sheila Holmes, "The Impact of Wife Abuse on Custody and Access Decisions" (paper presented to the National Family Law Program, 2000).

  • [48]  Lye, Diane (1999), "What the experts say: Scholarly Research on post-Divorce Parenting and Child Well-Being", Washington State Parenting Act Study, Report to the Washington State Gender and Justice Commission and Domestic Relations Commissions, p. 1 – 25. Available online.

  • [49]  Supra, note 7, at p. 54; Nicholas Bala and Sara Edwards, "Legal Responses to Family Abuse" (1999) at 28 on-line.

  • [50]  Supra, note 44, at 35.

  • [51]  Supra, note 28.

  • [52]  Supra, note 37, at 24.

  • [53]  Ibid., at 3.

  • [54]  Statistics Canada , Violence Against Women Survey, 1993 (Ottawa: Statistics Canada, 1993 at p. 3) cited in Health Canada , "What is Emotional Abuse?" on-line.

  • [55]  Supra, note 47.

  • [56]  Nicholas Bala, et al. Spousal Violence in Custody and Access Disputes: Recommendations for Reform (Ottawa: Status of Women Canada, 1998).

  • [57]  Any access supervisor may be called upon to testify about his or her observations. The dynamic of access supervision is such that the supervisor will spend a significant amount of time with the allegedly abusive parent and little or no time with the other parent. This can result in an initially neutral access supervisor developing a bond with the parent he or she is supervising.

  • [58]  Mark Gollum, "Slain Mother of Two Denied Police Escort During Child Exchange" National Post (December 7, 1999) cited in Martha Shaffer and Sheila Holmes, supra, note 47, at 18.

  • [59]  Supra, note 47.

  • [60]  Linda Neilson, "Spousal Abuse, Children and the Courts: The Case for Social rather than Legal Change" (1997) 12 C.J.L.S. 101 at 134-138.

  • [61]  The child protection statutes of eight provinces or territories (Alberta, Saskatchewan, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Northwest Territories, Nunavut) specifically cite exposure to family violence as a factor that can result in a child being in need of protection. Most mention physical or emotional harm. The statutes in four provinces (Yukon, Ontario, British Columbia and Manitoba) do not specifically cite family violence but do include physical or emotional harm generally. Quebec's legislation speaks of "risk of moral or physical danger" to a child.

  • [62]  Pamela Cross, "Children's Safety: Contradiction in the System" on-line.

  • [63]  Centre of Excellence for Child Welfare Information Sheet: Children's Exposure to Domestic Violence in Canada (2005) on-line; click on Publications.

  • [64]  A precedent Nova Scotia Corollary Relief Judgment is available online.

  • [65]  Some jurisdictions have additional remedies available. For example, sections 38 – 45 of Alberta 's Family Law Act protect the rights of non-custodial parents by giving the Court authority to order compensatory time, to require security, reimbursement of expenses incurred, payment of fines or incarceration where access is denied.

  • [66]  Margaret E. Martin, "From Criminal Justice to Transformative Justice: The Challenges of Social Control for Battered Women" (1999) 2 Contemp. Just. Rev. at 423.

  • [67]  Final Report of the Ad Hoc Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse Policies and Legislation (Ottawa: April 2003 at p.30) on-line.

  • [68]  Nicholas Bala and Sara Edwards, "Legal Responses to Family Abuse" (1999).

  • [69]  Supra, note 33, at 5.

  • [70]  Alberta: Protection Against Family Violence Act (June 1, 1999); Manitoba: The Domestic Violence and Stalking Act (In force September 30, 1999; formerly The Domestic Violence and Stalking Prevention, Protection and Compensation Act); Nova Scotia: Domestic Violence Intervention Act (April 1, 2003); Prince Edward Island: Victims of Family Violence Act (December 16, 1996); Saskatchewan: Victims of Domestic Violence Act (February 1, 1995); Northwest Territories: Protection Against Family Violence Act (April 1, 2005); Yukon Territory: Family Violence Prevention Act (December 11, 1997); amended 2005, (Fall 2005 sitting); and Newfoundland and Labrador: Family Violence Protection Act.

  • [71]  For more information about the registry.

  • [72]  Abused women may deny feeling fear of their spouses in circumstances where others would be fearful. If an abused client expresses that she does not fear her spouse, the lawyer should explore this with her prior to the hearing.

  • [73]  Supra, note 7, at p.51.

  • [74]  See, for example Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992) at 1045; Rizzov. Hanover Insurance Co. (1993), 103 D.L.R. (4 th ) 577 (Ont.C.A.); leave to appeal to S.C.C. dismissed.

  • [75]  Supra, note 47.

  • [76]  Supra, note 68, at 5.

  • [77]  This analogy was first raised by S. Grace Kerr and Peter G. Jaffe, supra, note 37, at 23.

  • [78]  One assessment strategy for getting past the veneer of reasonableness involves interviewing allegedly abusive spouses on several occasions and challenging their perspective on the basis of information the assessor has gathered. See supra, note 44, at 21.

  • [79]  Supra, note 33, at 6.

  • [80]  Supra, note 37, at 10.

  • [81]  Supra, note 7.

  • [82]  For more information visit the Ontario Women's Justice Network.

  • [83]  Supra, note 60, at 130.

  • [84]  Ibid., at 134-138.

  • [85]  Supra, note 3, at 16.

  • [86]  Supra, note 3, at 31.

  • [87]  Supra, note 3, at 32.

  • [88]  Peter Jaffe, "Children of Family Violence: Special Challenges in Custody and Visitation Dispute Resolution" in Nancy K. Lemon, Family Violence and Children: Resolving Custody and Visitation Disputes (San Francisco: Family Violence Prevention Fund, 1995 at p. 24).

  • [89]  Lundy Bancroft and Jay G. Silverman, The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics (Thousand Oaks, California: Sage Series on Violence Against Women, 2002).

  • [90]  As cited in Martha Shaffer and Sheila Holmes, supra , note 47.

  • [91]  Nicholas Bala, et.al. , Spousal Violence in Custody and Access Disputes: Recommendations for Reform (Ottawa: Status of Women Canada, 1998 at 11).

  • [92]  Edelson (1997) as cited in Martha Shaffer and Sheila Holmes, supra, note 47, at 3.

  • [93]  Supra, note 47.

  • [94]  Nico Trocmé, Barbara Fallon et al., Canadian Incidence Study of Reported Child Abuse and Neglect – 2003: Major Findings, Minister of Public Works and Government Services Canada, 2005, at 2.

  • [95]  Supra, note 88, at 21.

  • [96]  The Peel Committee Against Woman Abuse, Breaking the Cycle of Violence: Children Exposed to Woman Abuse ( Mississauga : The Peel Committee Against Woman Abuse, 2000) citing Jaffe and Poisson, 1999 on-line: Ontario Women's Justice Network.

  • [97]  Supra, note 37, at 2-3. See also Jaffe, Wolfe and Wilson (1990) cited in The Peel Committee Against Woman Abuse, Breaking the Cycle of Violence: Children Exposed to Woman Abuse (Mississauga : The Peel Committee Against Woman Abuse, 2000) citing Jaffe and Poisson, 1999 on-line: Ontario Women's Justice Network.

  • [98]  Ibid.; supra, note 7, at p. 62.

  • [99]  Supra, note 47.

  • [100]  Matheson v. Sabourin, [1994] O.J. No. 991 (Prov.Ct.) at para.18, cited in Bala, "Spousal Abuse and Children of Divorce: A Differentiated Approach" (1996) Can.J.Fam.L. 215 at 268.

  • [101]  Patrick Parkinson, "Custody, Access and Family Violence" (1995) 9 Aust. J. Fam. L. 41 at 50, cited in Martha Shaffer and Sheila Holmes, supra, note 47.

  • [102]  See subsection 24(4) Children's Law Reform Act (R.S.O. 1990, c. C.12) and paragraph 18(2)(b)(vi) Family Law Act ( S.A. 2003, c. F-4.5).

  • [103]  Supra, note 83, at 128.

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