Hey there, time traveller!
This article was published 28/5/2018 (637 days ago), so information in it may no longer be current.
As Ottawa moves to require judges to consider domestic-violence allegations in family law cases — which Manitoba has had on the books for years — some women still feel their concerns about abusive exes aren’t taken seriously when it comes to what’s best for their kids.
The federal Justice Department announced its plan to modernize Canada’s family law system last week. It introduced legislative changes to divorce, child support and custody processes. The changes, set out in Bill C-78, are meant to focus on the best interests of children in each case. The government has promised to make sure judges take domestic-violence allegations into account before making family court orders under the federal Divorce Act. In Manitoba, under the province’s Family Maintenance Act, courts have been required since 2010 to consider the effect of domestic violence on children before making decisions about custody.
A Winnipeg family violence specialist says although it’s the law, it doesn’t mean it’s happening in practice.
Kim Storeshaw of NorWest Co-Op Community Health works with women who are seeking legal support for domestic violence. She says the most common concern she hears from them is that justice officials are unwilling to listen to domestic-violence complaints as part of a custody battle.
"What I hear so often is that domestic violence isn’t even brought up by lawyers in the court, and the judges don’t really want to hear about the domestic violence when there are custody issues," she said.
Storeshaw estimated the issue accounts for the majority of calls she receives from women across the province. In an interview, she pulled out a file folder containing about 40 pages of documented phone calls she’s received since the beginning of May.
"What the women are saying, and I’m summarizing a lot of different stories, is that whatever lawyer they retain does not seem to want to bring in (to family court) the history of domestic violence in the relationship, because they see it as the best interest of the child (is) that they should be able to access both parents. And I get that. And yes, children need a father. However, when you’re looking at domestic violence, you’re not looking at a situation where it’s the woman’s fault. You’re looking at a situation where, if he’s abusive and he’s violent, he’s going to be that way with anyone. It’s not just with her. It’s going to be the next partner and the next partner," Storeshaw said. "What the clients are saying is, ‘Why isn’t my experience and my child’s experience being validated? My child witnessed the domestic violence. I was holding my child when he punched me in the face. Why isn’t this being brought up in court?’"
Judicial officials may be more likely to deny protection orders to domestic-violence victims who are already involved in family court disputes because courts in Manitoba have ruled those allegations should be dealt with in the same family court process, not by seeking a separate court order to prevent contact between the parties, said Lawrence Pinsky, a family lawyer in Winnipeg.
"It’s important that people understand the role of the court and the role of the lawyers and the place that these issues have to be raised. So, nobody should be saying where there’s domestic violence that impacts on the child in some way, or any family member who cares for the child, that that should be ignored or not dealt with or swept under the rug. Absolutely not," he said. He said he hasn’t heard that lawyers are refusing to raise domestic-violence allegations in front of a family court judge.
"If people aren’t raising it when you have this section (of the legislation) that specifically contemplates it, it may be, if that’s happening, that it’s something that isn’t considered to impact on the child. But in serious cases of domestic violence, it seems to me these issues would be raised. I can’t see why they wouldn’t be raised."
Pinsky said Manitoba has, for the most part, been progressive when it comes to family law and paying attention to the best interests of the child. Historically, there was a "strain of thought" that just because one parent was abusive to their spouse, it didn’t mean they weren’t a good parent to their child.
"I don’t think that’s an accurate reflection of the social sciences in the area," Pinsky said. "I don’t think it’s an accurate reflection of what a lot of judges think in the family division.
"Social science is clear that it’s important for children to have a close, healthy attachment with both their parents, where it’s possible. It has to be healthy. So, if you have one person who’s violent — to the child, to the other parent in front of the child, or at the high end of the violence regardless — it’s difficult to see how a judge would just ignore that. I think we’re fortunate in having a really good bench here (of family division judges)."
As chairman of the Canadian Bar Association’s family law section, Pinsky pushed for an overhaul to family law. He said the proposed federal changes address most of the bar association’s priorities, including moving away from a win-lose mentality in child custody battles and focusing on parental responsibility and decision-making.
Although Manitoba already has a requirement to consider family violence, other federal law changes will be a "step forward," including modernized rules regarding a divorced parent’s ability to relocate with children and more guidance on child support when parents have shared custody.
The amendments, which passed first reading on May 22, represent the first time in 20 years Canada’s family laws have been overhauled.
email@example.com Twitter: @thatkatiemay
Katie May reports on courts, crime and justice for the Free Press.