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Family Courts: No justice for victims of spousal abuse

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Like every major life change divorce can be a stressful experience, and even when both parties enter into a separation with the best intentions, it's difficult to keep a grip on decency amidst a frenzy of emotional and financial insecurity; in cases where spousal abuse was prevalent during marriage, it quickly gets out of control once the parties start litigating in family courts, fact that could have, and will have, a tremendous negative impact on the entire family, especially on the children who are caught in the crossfire.

The divorce rate in Canada is on the rise, and so are the conflicts, resolutions, and the fine lines between truth and make-believe that are often crossed in family courts.

When parents can’t settle their differences and can’t successfully make joint decisions, family courts intervene and make those decisions for them, however, such decisions often turn out harmful or deadly to these families.

Numerous studies have been done on the way Canadian family courts – and not only – handle their cases. Most, point to the fact that family court system is not equipped to adjudicate criminal matters such as spousal abuse, and these cases are handled in a way which proves that separation or divorce alone does not solve the problem of a victim of spousal abuse.

A more frightening fact in the vast majority of these cases, is that the help-seeking behavior of the victim is often turned against them, and without any valid evidence their cry for help is considered by family courts as nothing more than angry and malicious accusations directed at an ex-spouse.

Family courts do not mandate legal representation, therefore, the only litigants with attorneys are those who can afford them (usually the abuser); this fact throws the litigating process on an unfair and unbalanced slippery slope, because the victim is forced to compete against an experienced attorney who knows every corner of the law.

A core assumption in family courts is that divorce and custody disputes are simple disagreements and unresolved remnants from the marriage, and when victims of spousal abuse present their claims in family court without having it backed up by a criminal case, they risk having their cases diminished to being superficial anger, because there are few safeguards built into the system to protect against unlawful or criminal dynamics that dominate family disputes.

For example, certain categories of abuse, such as assault, sexual assault and criminal harassment (stalking) are crimes under the Criminal Code of Canada. In recent years, a series of amendments have been made to the Criminal Code to strengthen the laws related to spousal abuse. But if a criminal case hasn’t been launched against the abuser, family court will rarely investigate such claims.

On March of 2013, Family Relations Act was replaced by Family Law Act. The new Act is supposed to make the best interests of the child the only consideration when decisions affecting the child are made. Among other things, the Act expands the best interests of the child test to include: the impact of family violence on the child’s safety, and civil, or criminal proceedings relevant to the child’s safety and well-being, yet it doesn’t say anything about other forms of abuse that are not covered under the Criminal Code, but which are equally, if not more damaging to a child.

Abuse has many shapes and forms, and those forms that are not covered under the Criminal Code, carry no more authority than hearsay in family courts and because of that, an unprepared victim can be as vulnerable in the courtroom as he/she was in the home during marriage.

• Physical abuse, is where the perpetrator is inflicting physical injury.
• Sexual abuse, is where the perpetrator is coercing any sexual contact without consent.
• Psychological abuse, is where the perpetrator is instilling fear and isolates the victim from friends, family, school, and/or work.
• Emotional abuse, is where the perpetrator is undermining victim sense of worth.
• Economic abuse, is where the perpetrator is making the victim financially dependent.
• Criminal harassment (stalking) may include threatening a person or their loved ones, damaging their possessions, or harming their pets.
• Spiritual abuse includes using a person's religious or spiritual beliefs to manipulate, dominate or control them.
• Legal abuse is the latest form of abuse, where the perpetrator uses the legal system to harass and dominate the victim.

The moment a victim steps into family court and brings up spousal abuse, the court's attention shifts away from investigating on the alleged abuse and instead focuses on the "uncooperative party"; that literally opens a door for the abuser not only to fight back against the victim's accusations, but to put forth his/her own set of accusations – often false accusations – against the victim.

The abusers are in reality nothing more than violent criminals with narcissistic personalities, and they seize the opportunity with a vengeance; they use the court system to continue to abuse their victim by bombarding and overwhelming them with court motion after court motion, launching back attacks, often with false evidence to back them up, and quickly, they turn the family court system into a very sophisticated weapon against the victim.

The victim then, not only has the burden of proving his/her own family case, but must also defend themselves against the flurry of false accusations, and precisely because the family court is not equipped to deal with such dynamics, it is often successfully turned against the victim.

In cases where an order is given in the victim’s favor, the abuser is almost always violating that order and the police seem to have very little respect for family court orders; when victims call police to report violations, their all too common response is that that is a family court matter, in which case the abuser once again is given the opportunity to invent a new set of denials and counter accusations, with the same risks to the victim.

Almost all cases of high conflict, or spousal abuse, are turned over to parenting coordinators, psychologists, or child protective services. That is when the abuser is in a better position than ever because they are outside the rule of law, and their manipulative personality becomes an asset in turning those professionals against the victim, doing so with impunity.

Although the psychologists, mediators, evaluators, parenting coordinators, and social workers to whom the case is assigned should have specific training and ongoing education in spousal abuse matters, they are non-judicial personnel. Their decision making and recommendations are not bound by any rules of law. They make their recommendations to the court as they personally see fit, and their recommendations carry significant weight in judicial decisions that set the course of a child’s life.

While unlimited access to both parents is ideal so the children feel that they have two parents that are involved, shared custody and an/or equal amount of time with the children post-divorce, is not what is best for the child in cases of spousal and/or child abuse, because the abuser is able to continue to dominate and control the life of their former spouse at the expense of the children.

When joint custody or poor access arrangements are established, victims who go into family court attempting to get the abuser out of their lives, end up under family court orders that bind them to their abuser in ways that are oppressive, and which create safety issues as the victim is forced to deal with more controlling tactics and other forms of abuse.

The irony is that the same system that provides only minimal protection for victims of abuse, has the power to take devastating actions against them. Strong scientific evidence points to a number of these cases involving the forceful separation of children from their parents, where false allegations and manipulations of the legal system were used against the victims.

Another terrifying fact is that some lawyers encourage hostile and abusive behaviour during litigations. Although there are many fine and outstanding family lawyers who sincerely try their best to resolve a family’s differences, unfortunately, there are a number of lawyers who use unnecessary inflammatory and exaggerated language, which helps to keep emotions high. They strategically launch procedural roadblocks and personal attacks on witnesses to protect a hostile abusive client and to help conceal that client’s behaviour. These lawyers also encourage their clients to make perjured statements to the court. The attitude is to win for the client, no matter what the cost is to the children or the families.

In spite the fact that the majority of laws, programs and services target emergency intervention, the abused spouses recount ongoing abuse that significantly shaped their safety following separation and their ability to remain free from abusive relationships.

As long as family courts fails to recognize all forms of abusive behaviour, and fail to see that the cumulative effects of any repeated and ongoing forms of abuse is every bit as serious as physical abuse, the system will remain a flawed and risky venue for victims of abuse.

Though these things don't always happen and some victims come out with court decisions that are in their favor, the process remains a risky, arbitrary, roll of the dice as way too many spousal abuse victims become hopelessly entrapped in family courts, sometimes for years, and in many cases, the abuser succeeds in turning the family court against the victim. Some victims end up losing custody of their children based on no more than the lies and manipulations, and some lose their lives.

According to statistics Canada, women continue to be more likely than men to be victims of spousal homicide. In 2009, the rate of spousal homicide against women was about three times higher than that for men.

Between 2000 and 2009, there were 738 spousal homicides, representing 16% of all solved homicides and nearly half (47%) of all family-related homicides.
Female victims of spousal homicide were more likely than male victims to be killed by a partner from whom they were separated (26% versus 11%).
(19%) of the women who reported violence by a previous male partner stated that the violence increased in severity at the time of separation.
Among women with a former husband or male cohabiting partner who had been violent during the relationship, 49% were assaulted by their ex-partners after separation.

A final irony is that this is a wide-spread issue and it's often the most dangerous and manipulative abusers who are the most successful at turning the family court process against the victim, which results in many adults and children being physically harmed, or psychologically damaged.

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