The Intersection of Child Protection and Family Law Systems in Cases of Domestic Violence

Both the child protection and the family law systems are intended to promote the best interests of children, and both can profoundly affect the relationships between children and their parents or caregivers. Over the past two decades, both systems have also accorded more weight in the assessment of best interests to how exposure to domestic violence can harm or place children at risk. However, these systems have evolved differently, are governed by different statutes, and are administered in different ways. Child protection proceedings purport to have primarily a protective function and invariably involve a public agency, while family law proceedings, under the Divorce Act and similar provincial and territorial statutes, typically involve disputes between private litigants. In this article, I compare the impact of the two systems in cases involving allegations of domestic violence, highlighting the challenges within each, the differences between them in their identification and response to domestic violence, as well as the problematic ways in which the systems interact and generate contradictory pressures for survivors, most often mothers. While I reference research findings in other jurisdictions, my inquiry is focused on Saskatchewan, a jurisdiction with relatively high rates of children in state care and the highest rate of domestic violence of all provinces. I draw on multiple sources that include extensive in-person interviews with legal professionals, government employees and service providers. I argue that the tensions and contradictions experienced by those affected by domestic violence could be mitigated by the provision of adequate and appropriate preventative and legal supports in both systems along with information and procedural protocols, more uniform understandings of domestic violence and adequate training for all court and Ministry personnel in the dynamics of domestic violence, the impact of systemic inequalities and the specific issues arising at the intersection of both systems

Assisted Conception and Equality of Familial Status in Parentage Law

This article provides an in-depth analysis of outcomes in parentage disputes involving assisted conception across Canada. Throughout this article, I draw on equality of status, familial security and equity in terms of gender and sexual orientation as norms or values that should underlie and guide the legal regulation of parenthood in the context of reproductive technologies. Throughout, I also compare and contrast the sources of and the implications for children and parents of resistance in law towards the abolition of illegitimacy and the regulation of assisted conception

Collaborative Family Law and Gender Inequalities: Balancing Risks and Opportunities

Collaborative Law (CL) is a unique settlement process increasingly used by family lawyers. In this article, the authors examine the potential of CL to alleviate the impact of gendered differences in bargaining power between family clients. Proponents suggest that the more extensive involvement of lawyers in the CL process can prove more effective in dealing with vulnerable clients than either litigation or family mediation in their current forms. Drawing on the available literature on CL, their own empirical research, and the extensive literature on gender imbalances in mediation, the authors examine the likely impact of both the background norms and unique structural features of CL on the experience of female clients. They argue that CL\u27s potential impact will depend largely on how sensitive lawyers are to the existence of gendered power imbalances, on whether they screen effectively, provide timely and specific legal advice, and work at more effective communication with their clients. Serious concerns are raised regarding the use of the standard clause disqualifying lawyers from acting in subsequent litigation. These concerns heighten the importance of adequate screening into the process

A Comparison of Gender-Based Violence Laws in Canada: A Report for the National Action Plan on Gender-Based Violence Working Group on Responsive Legal and Justice Systems

This report undertakes a comparison of laws related to gender-based violence across Canada with a view to identifying promising practices. We use the definition of gender-based violence from the United Nations as our frame, analyzing laws relating to “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” While the UN definition includes both intimate partner violence and sexual violence, our focus is largely on violence in the context of intimate relationships (including intimate partner sexual violence). We are guided by a broad conception of access to procedural and substantive justice that encompasses equal protection of the law, equal access to legal rights and remedies, and safety for women and children

The Costs of Justice in Domestic Violence Cases : Mapping Canadian Law and Policy

Domestic violence cases in Canada present unique access to justice challenges due to complex power dynamics, structural inequality, and the fact that victims, offenders, and children must often navigate multiple legal systems to resolve the many issues in this context. The complexity of these cases has both personal and systemic impacts. Different legal systems – for example, criminal, family, child protection, social welfare, and immigration – have differing objectives and personnel with varying levels of expertise in domestic violence. Conflicting decisions by different courts and tribunals with overlapping jurisdiction may impair the safety of victims and children, and may require multiple court appearances to resolve. Victims may face contradictory messages about how seriously adjudicators will treat domestic violence, and offenders can use the existence of different systems to perpetuate abuse. These issues are gendered, as women are the primary victims of domestic violence, and the concerns may be heightened among marginalized women. The issues may also differ across Canadian provinces and territories and on First Nations reserves, given the application of different laws, policies, and dispute resolution models. This chapter explores how the access to justice crisis in Canada manifests itself in domestic violence cases. It reviews the literature on access to justice and domestic violence, adopting a broad definition of access to justice to inform the analysis. It then documents and compares the legal and policy provisions and systems affecting litigants in domestic violence cases across Canadian jurisdictions, highlighting legal reforms as well as the systemic barriers in seeking justice that victims, offenders, and children confront. A hypothetical case study is then used to explore how the complex interaction of multiple laws, policies, and dispute resolution processes may impact victims of domestic violence. This comparative mapping analysis is a first step towards identifying the systemic reforms necessary to enhance access to justice in domestic violence cases

Submission to Justice Canada on the Criminalization of Coercive Control

Justice Canada has been holding an engagement process on the issue of whether an offence of coercive control should be added to the Criminal Code. This offence has been proposed in a series of private members bills, most recently, Bill C-332. This submission argues that it is imperative that actors in all legal domains acquire a nuanced and contextual understanding of coercive control derived from an intersectional analysis that attends to how multiple systems of oppression interact to shape the tactics of coercion and control. However, we do not support the criminalization of coercive control, either as a standalone offence or within a broader offence of domestic abuse / violence. We argue that it is the former approach – the acquisition of deep and contextualized knowledge – and not criminalization that holds promise in enhancing safety for women and children. In Part B, we provide a brief overview of coercive control. This overview highlights some areas of contestation, with a view to illuminating the many challenges of translating the theory of coercive control into a criminal prohibition as well as the complex intersectional understanding of coercive control that legal system actors need to acquire. In Part C, we examine lessons learned from past and current criminalization initiatives. Here we address the differential impacts of criminalization, and based on the expertise of co-author Harris, we focus on the experiences of Black women. These lessons, we argue, underscore not only the lack of efficacy of criminalization in enhancing safety, but its infliction of harm on survivors of violence, particularly those who are marginalized. In Part D, we consider what can be learned from recent Divorce Act reforms regarding the translation of coercive control into the legal realm in the context of parenting disputes. Our preliminary case law review reinforces concerns about the difficulty courts have in seeing coercive control and its possible weaponization against survivors (see a list of cases we discuss in Appendix A). In Part E, we explore lessons learned through the ongoing research of co-authors Mosher, Koshan, and Wiegers on intersecting legal domains, including the family law, child protection, civil protection order, and immigration systems, as well as the ways in which these intersecting systems can be manipulated by abusers. In Part F we summarize the reasons why we do not support the creation of a new criminal offence and explain why Bill C-332 is particularly problematic (see also a summary of the Bill at Appendix B). We offer concluding suggestions as to what should be done to address coercive control and gender-based violence

Introduction: Domestic Violence and Access to Justice within the Family Law and Intersecting Legal Systems

The articles in this collection explore the access to justice issues that arise for survivors of domestic violence in their encounters with Canada’s family law system. While family law and family dispute resolution processes are the central focus of the articles, three contributions also address family law\u27s intersections with other legal domains (civil restraining orders, child welfare, and immigration). Common across the contributions is a desire to carefully interrogate the potential of law and legal processes to enhance—or conversely to undermine—the safety and well-being of survivors and their children

Introduction: Domestic Violence and Access to Justice within the Family Law and Intersecting Legal Systems

The articles in this collection explore the access to justice issues that arise for survivors of domestic violence in their encounters with Canada’s family law system. While family law and family dispute resolution processes are the central focus of the articles, three contributions also address family law\u27s intersections with other legal domains (civil restraining orders, child welfare, and immigration). Common across the contributions is a desire to carefully interrogate the potential of law and legal processes to enhance—or conversely to undermine—the safety and well-being of survivors and their children

The Intersection of Child Protection and Family Law Systems in Cases of Domestic Violence

Both the child protection and the family law systems are intended to promote the best interests of children, and both can profoundly affect the relationships between children and their parents or caregivers. Over the past two decades, both systems have also accorded more weight in the assessment of best interests to how exposure to domestic violence can harm or place children at risk. However, these systems have evolved differently, are governed by different statutes, and are administered in different ways. Child protection proceedings purport to have primarily a protective function and invariably involve a public agency, while family law proceedings, under the Divorce Act and similar provincial and territorial statutes, typically involve disputes between private litigants. In this article, I compare the impact of the two systems in cases involving allegations of domestic violence, highlighting the challenges within each, the differences between them in their identification and response to domestic violence, as well as the problematic ways in which the systems interact and generate contradictory pressures for survivors, most often mothers. While I reference research findings in other jurisdictions, my inquiry is focused on Saskatchewan, a jurisdiction with relatively high rates of children in state care and the highest rate of domestic violence of all provinces. I draw on multiple sources that include extensive in-person interviews with legal professionals, government employees and service providers. I argue that the tensions and contradictions experienced by those affected by domestic violence could be mitigated by the provision of adequate and appropriate preventative and legal supports in both systems along with information and procedural protocols, more uniform understandings of domestic violence and adequate training for all court and Ministry personnel in the dynamics of domestic violence, the impact of systemic inequalities and the specific issues arising at the intersection of both systems

Assisted Conception and Equality of Familial Status in Parentage Law

This article provides an in-depth analysis of outcomes in parentage disputes involving assisted conception across Canada. Throughout this article, I draw on equality of status, familial security and equity in terms of gender and sexual orientation as norms or values that should underlie and guide the legal regulation of parenthood in the context of reproductive technologies. Throughout, I also compare and contrast the sources of and the implications for children and parents of resistance in law towards the abolition of illegitimacy and the regulation of assisted conception