Family court reform in Ontario

It is well established that intimate partner abuse does not end at the point of separation. In fact, significant evidence exists to demonstrate that the risk of abuse and lethality heightens with separation. Violence at this time often includes a wide spectrum of abusive behaviours, including physical assault, threats of physical violence, controlling behaviours and/or psychological abuse that are used by the abuser to make a woman reconcile or punish her for leaving.

Legal bullying is a particularly insidious form of post-separation violence. This is when the abuser uses the family law and the family court process as tools in his ongoing quest to continue to control and abuse his former partner.

Many abused women turn to family law and family court for assistance and support in making post-separation parenting arrangements as well as to resolve issues such as spousal and child support and property division and to get a restraining order.

To say that family law and family court are not always helpful for such women is an understatement of monumental proportion.

Indeed, at times both the laws and the process seem designed to foil the attempts of women and their children to escape the abuse and move on to lives free from violence.

The challenges and barriers faced by women are numerous. To list just a few:
 Some women go into serious debt to pay for a lawyer
 A lack of legal aid – some parts of the country provide no legal aid for family law matters and, even where it is available, it is minimally funded -- means many women proceed through family court unrepresented
 Unrepresented women must deal with a complex court process, involving seemingly endless and confusing forms, rules that are often hard for lawyers and close to impossible for lay people to understand
 While there are lawyers who understand the unique issues that accompany violence against women cases, there are too many – whether they represent abusers or survivors – who do not
 Most family law, in particular custody and access law, assumes a relatively equal balance of power between the parents, which makes it difficult for women with abusive partners to get orders that will keep them safe
 The court process is premised on the same assumption, which means that abusers use and manipulate the system to maintain control and power over their former partner

Women who are further marginalized by reason of race, culture, religion or newcomer status, including women who do not have legal immigration status in Canada, face even more hurdles in their attempts to ensure the safety of themselves and their children.

Luke’s Place Support and Resource Centre for Women and Children, located in Oshawa, Ontario, provides a unique service to abused women dealing with family court. Legal Support Workers (LSWs) walk with women through their court case for as long as the women need and want them, providing legal information, support, referrals and advocacy. Where a woman has a lawyer, the LSW can accompany her to appointments as well as to court. Recently, Luke’s Place opened a Pro Bono Legal Advice Clinic, at which local lawyers donate time to provide women with free legal advice and assistance.

Luke’s Place also conducts research on the experiences of abused women dealing with family court. The first study, entitled “Through the Looking Glass” looked at women in Durham Region and was published in 2007. A second study looked at women’s experiences in 8 diverse communities across Ontario.

This research solidly supports the contention that family court is a hostile environment for women who leave abusive partners, and the short and long term results of this are, at a minimum, toxic and, at worst, fatal for them and their children.

Recent years have seen positive changes to some aspects of family law in parts of the country. Ontario, for instance, has embedded a mandatory consideration of violence in the best interests of the child test in the Children’s Law Reform Act, has outlawed the use of religious laws in the arbitration of family law disputes and has improved its restraining order legislation. However, not all parts of the country have seen such positive changes, and there have been none at all to the federal Divorce Act.

I don’t want to downplay the importance of these legislative changes, but it is important to also look at the problems with family court process. Good laws are not particularly helpful if women have to deal with a process that does not understand the realities of the violence they have experienced and, often, continue to experience.

On December 17, 2009, Ontario’s Attorney General Chris Bentley announced his plan to “strengthen and improve access to justice by making the family courts easier to use, more focused and more affordable.”

There are a number of elements to this undertaking:
 Parties will be required to attend an initial information session before they can begin a court proceeding. This session will provide information about the family law process, the steps that need to be taken, alternatives to litigation and the impact of separation on children
 An intake process will allow cases involving violence against women to be identified and fast-tracked to get in front of a judge, while other cases will be screened and moved towards non-court processes
 Access to legal advice and alternatives to litigation will be increased at the early stages of a case
 Those cases that remain in the litigation stream will receive faster, focused attention from the court

There are a number of positive possibilities that arise from these “four pillars” as Mr. Bentley calls them. However, there are also a number of serious concerns with respect to the possible impact on women leaving abusive relationships. And, Mr. Bentley has made it very clear on a number of occasions that these reforms are to be developed and implemented with no new money.

Violence against women advocates met in December to prepare an initial brief for the Attorney General. Since then, we have had one meeting with Ministry staff to discuss our thoughts and concerns.

Further meetings are planned in the near future but, as reported in the Toronto Star on January 11th, a Cabinet shuffle seems imminent, which could well have an impact on this process.

To read our brief, please click here.