Family law takes a step forward in Ontario
The death of four-year-old Keira Kagan in an apparent murder/suicide by her father earlier this year shone a light on long-standing problems with Ontario’s family laws in cases involving family violence.
Last week’s passage of Bill 207, which significantly changes how post-separation parenting decisions will be made, is a step in the right direction for survivors of family violence. In particular, they will benefit from the extensive and inclusive definition of family violence, which will now appear directly in tests of a child’s best interests.
The new definition in the Children’s Law Reform Act (CLRA) uses the language of coercive and controlling behaviour and includes sexual, psychological and financial abuse, as well as threats of or actual harm to animals among the behaviours considered to be family violence. It also makes explicit that conduct need not constitute a criminal offence for it to be considered in a family law proceeding.
These are important changes. For too long, women have struggled to have family courts acknowledge non-physical abuse as relevant when making decisions about children. Though less visible, coercive controlling abuse is in fact more insidious and dangerous, especially after separation.
It may be more difficult for an abuser to continue physically assaulting his partner post-separation, but it is very easy for him to continue to terrify her through stalking, tech abuse and legal bullying. He may send her threatening text messages, post embarrassing and private information or images of her online, or use the children to spy on her — all of which can lead to serious trauma, and make it difficult for her to engage effectively in the family law process.
Unfortunately, it has not been uncommon for courts to respond dismissively to these and other kinds of non-physical abuse, especially to any abuse that does not constitute a criminal offence. The revisions to the CLRA should make it more difficult for this to happen in the future.
However, those of us who work with survivors of family violence are concerned that some of the changes may be problematic for women subjected to ongoing coercive controlling abuse.
Vagueness is a gift to an abuser, and the language about decision-making is an example of just that. The lack of clarity about how parents are to make decisions about their children creates an opportunity for an abusive partner to manipulate the legislation’s intent so as to intimidate and control the child’s other parent by interfering in their decision-making.
Women with abusive partners will be challenged by the best interests factor that looks at the willingness of each parent to communicate and co-operate with the other.
This is not realistic for a woman whose every encounter with her former partner is emotionally dangerous. Nor is it realistic, as another factor sets out, for her to support the child’s relationship with the other parent.
As Ontario moves toward implementation of the revised CLRA, two additional measures would further enhance the safety and well-being of women and children fleeing abuse.
Family law practitioners should be mandated to screen for family violence at the beginning of every case. Without this, a lawyer may not be aware of important abuse issues, which means they may not take steps to assist their client access appropriate services. Safety issues may go unaddressed, and more generally, the lawyer’s advice may not speak to what the client most needs.
Interpreting the best interests factors appropriately and giving due weight to the consideration of family violence requires a high level of education about the nuanced reality of violence within families.
All those involved in the family law system should be required to participate in family violence education in order to ensure they can interpret the new legislation appropriately and use screening tools effectively.
The family court system has much to answer for in the deaths of Keira and too many other children who, like her, have lost their lives due to a parent’s violence. Bill 207 won’t fix all the problems, but it heads us in the right direction, which is something to celebrate in the world of family violence and family law.