Domestic Violence and Family Law in Canada: A Handbook for Judges
Published January 2009 by the National Judicial Institute of Canada.
1
Introduction: Judges Can Make a Difference
Last updated: January 2009
Table of Contents
1 Introduction: Judges Can Make a Difference
Table of Contents
1.1 The Problem
1.2 Judicial context: Remarks of Justice John F. McGarry
1.3 Comments: Justice John F. McGarry with Judge Heino Lilles and Judge Eugene M. Hyman
1.4 It takes a team: Reviewers and Contributors
1.5 Author comment on research
1.6 A comment on the need to take action
1.7 Taking Action: Judges can make the difference
1.8 Tools for judicial action
1.1
The Problem
"Children’s early observations of violence among people they love plant the seeds of acceptance of the violence that all too often emerges years later in their own lives." (Justice Perry W. Schulman)1
"We owe our children – the most vulnerable members of any society – a life free from violence and fear. In order to ensure this we must become tireless in our efforts not only to attain peace, justice and prosperity for countries but also for communities and members of the same family." (Nelson Mandela)2
"The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon in recent years has revealed both its prevalence and its horrific impact on women from all walks of life." (Wilson, J. in R. v. Lavallee [1990] 1 S. C. R. 852.)
1.2
Judicial context: Remarks of Justice John F. McGarry
At the commencement of family law actions, trial judges are often faced with extraordinarily difficult choices made all the more complex by conflicting affidavits. Allegations of violence and abusive conduct sworn by one parent are denied or counter claimed by the other. Sometimes decisions must be made without viva voce evidence and without knowing the views of children whose lives may be affected in fundamental ways. Yet ascertaining validity and truth is critically important in these cases since the consequences of each and every decision we make can have significant long-term, even life-long, positive or negative impacts upon the lives of the parties and upon the future lives of children.
What is a judge, who is involved in a case conference or in a trial, to do when the issue of past abusive behaviour, manipulation and power imbalance hangs in the air but is left unspoken by the parties?
This EBB offers us guidance, tools, and options we can use when we find ourselves in complex and sometimes confusing situations.
1.3
Comments: Justice John F. McGarry with Judge Heino Lilles and Judge Eugene M. Hyman
Over the past several years, I have had the responsibility of reviewing and guiding the development of this electronic bench book written by Dr. Linda C. Neilson. I have personal knowledge of the volume of research and the years of effort that have gone into producing this work for Canadian Judges. I am pleased to say that, in my view, this work offers judges a valuable tool to assist in arriving at informed and balanced decisions in a timely fashion when delays would otherwise exacerbate the situation.
Other judges who have been involved in this project share my enthusiasm, among them former Chief Judge of the Yukon and Northwest Territories, Judge Heino Lilles, who has extensive background as a trial judge in the Canadian north. Judge Lilles offers the following comments.
While society and the justice system struggle to respond effectively to domestic violence, it is too easy to ignore the desperate state of victims and families who live in aboriginal communities where the rates of domestic violence are estimated to be three to five times that of the national average in urban native communities and as much as ten times higher in remote isolated communities. For that reason, this bench book devotes a separate chapter to this subject.
It provides judges with a valuable resource that includes references and hyperlinks to leading cases and articles. It identifies many issues and obstacles within the justice system and the law that present challenges to responding effectively to the problem of domestic violence in aboriginal families. It does not, however, tell judges what they must do, for there is no simple solution, no “silver bullet” or formulae to be applied. Rather, it presents a challenge to all judges to better understand the dynamics of domestic violence in an aboriginal context and to contribute to solutions in their courtrooms and in the communities where they serve.
A retrospective review of the impact of the justice system on the levels of domestic violence generally and in aboriginal communities specifically clearly indicates that business as usual is no longer acceptable. Judges must assume a leadership role if change is to occur.
Judge Eugene M. Hyman, of the Superior Court of California, California, founder of the first juvenile domestic violence court in the United States which was a recent recipient of a United Nations Public Service Award, was also centrally involved in the creation and development of this work. Judge Hyman offers the following comments.
There are of course many challenges to being a trial judge, one being the knowledge of the law and second, the ability to apply it correctly in difficult cases such as those involving domestic violence.
Domestic violence cases are complex. Frequently families are in multiple court proceedings simultaneously, most commonly, the criminal, child protection, and family courts. This increases the opportunities for multiple and sometimes conflicting orders.
Fortunately, this EBB resource will now make the complex relationship between domestic violence and the court more understandable and accessible to trial judges while increasing the likelihood of increased victim and child safety and rehabilitation of the defendant.
This bench book was developed in an electronic format for several reasons. The electronic platform allows frequent updating of new legislation, case law, and research articles and documents. Also, the National Judicial Institute’s electronic format has enabled the author to incorporate an imbedded library of materials enabling a judge to gain full access to statutes, cases, and on-line domestic violence literature by the use of a “click” of a mouse. This is not possible in a traditional printed treatise.
While many jurisdictions in the United States and elsewhere have successfully developed electronic bench books, few if any are as fully electronic and searchable as this one is thanks, in large part, to the important role played by Christine Woodrow, the National Judicial Institute’s Electronic Bench Book Manager, in the publication of this work.
Concluding comments from Justice McGarry: Dr. Neilson and I, with Judge Hyman and others at the National Judicial Institute, have designed this electronic bench book to offer quick access to resources and to practical tools. The goal is to help judges “make a difference” in domestic violence cases. Each chapter begins with a checklist summary of contents, followed by more detailed discussion. Web links to academic, statistical and legal resources are provided throughout.
1.4
It takes a team: Reviewers and Contributors
Production of this EBB was a major, collaborative team effort. We would like to acknowledge invaluable contributions to this project.
• T. Brettel Dawson, Academic Director of the National Judicial Institute. Without the vision and support of Professor Dawson, there would be no domestic violence EBB for Canadian judges. To Professor Dawson belongs the credit for the original vision and oversight of this bench book project.
• Justice John F. McGarry, SuperiorCourt of Justice, Ontario. Justice McGarry worked collaboratively alongside the author on behalf of the National Judicial Institute throughout the many years it took to complete this project.
• Judge Eugene M. Hyman, Superior Court of California was a central reviewer. He submitted review comments on each chapter, offered encouragement throughout the project, and brought to the author’s attention a large volume of domestic violence research and judicial educational materials from the United States, England, and Australia. Many of these materials are incorporated throughout the EBB. Justice Hyman should be credited with adding an international perspective to the work.
• Christine Woodrow, NJI's former Electronic Bench Book Manager, and Cristina Cook, NJI’s new Electronic Bench Book Manager offered us their administrative and organizational skills and superimposed on the text the ‘magic’ of NJI’s bench book structure and technology.
• Katherine Kehoe, senior adviser, NJI DV project, not only edited the book as a whole, alerting the author to errors and omissions, she also contributed comments derived from her practice of law experience in the child protection field. Her comments contributed appreciably to Chapter 13.
• Susan Lightstone, NJI Judicial Education Director. This project and the author personally appreciate the irreplaceable gift of Susan Lightstone’s enthusiasm, advice and support.
Academic and judicial reviewers or editors of individual chapters:
• Professor Nicolas Bala, Faculty of Law, Queen’s University
• Justice Grant Campbell, SuperiorCourt of Justice, Ontario
• Dr. Myrna Dawson, DV researcher, Anthropology & Sociology, University of Guelph
• Justice Lea Duvall, Court of Queen’s Bench of Manitoba
• Judge Nancy A. Flatters Provincial Court of Alberta, Calgary Family and Youth Court
• Judge Thomas Gove, Provincial Court, British Columbia
• Dr. Nancy Hansen, Professor, Disability Studies, University of Manitoba
• Judge Heino Lilles, former Chief Judge of the Yukon and Northwest Territories
• Justice Donna Martinson, Supreme Court, British Columbia
• Justice Janet McMurtry, Saskatchewan Court of Queen’s Bench
• Justice Ellen Murray, Ontario Court of Justice
• Judge Graydon Nicholas, Provincial Court of New Brunswick
• Phillip Norton, Clerk, Superior Court of Justice, Ontario
• Justice Maryka Omatsu, Ontario Court of Justice
• Justice Joyce Pelletier, Ontario Court of Justice
• Meaghan Thomas, Law Student, NJI EBB Assistant
• Justice Roselyn Zisman, Ontario Court of Justice
We would like to thank in particular: Judge Nancy Flatters and Justice Donna Martinson for sharing their insights and contributing detailed comments that helped to improve Chapter 15 on judicial dispute resolution and mediation; Justices Murray and Zisman of the Ontario Court of Justice for extensive review comments that enhanced Chapter 13 on domestic violence and child protection; and Judge Graydon Nicholas, Provincial Court of New Brunswick, and Judge Heino Lilles for review comments associated with Chapter 17. Judge Lilles offered detailed review comments on multiple drafts of numerous chapters. He shared with us freely his passion for justice and his insights on law and the legal system as they relate to domestic violence and aboriginal peoples.
Errors and omissions, however, should be attributed solely to Dr. L. C. Neilson.
1.5
Author comment on research
Objectivity and neutrality are expected of Canadian judges.3 This places a weighty ethical and professional onus on anyone developing materials for judicial use. One must ensure balance by engaging in comprehensive review, analysis and evaluation of research, some of it contradictory, in order to document areas of consensus and to explain areas of disagreement. In the domestic violence field, this is not an easy task. The research is voluminous, changing and growing.4 Neutrality and balance are made all the more challenging by the presence of gender issues, yet comprehensive analysis of domestic violence research relating to perpetrators, victims and children is only a small first step.
Despite years of relative consensus among experts and years of concentrated judicial and legal education in the domestic violence field, systemic problems in the legal system keep resurfacing.5 In part, the problem is disciplinary. Judges cannot, for sound reasons associated with neutrality and with the duty to deliver individualized justice, apply social science information directly in courtrooms in the absence of some degree of proof that the information is applicable to the particular circumstances of the case.6 Thus social science education on domestic violence may not serve much useful, practical purpose until it is linked or converted into legal principles, case law, evidence and procedural rules that can be applied fairly and without bias in individual cases.
Complicating matters further is that problems in the legal system are seldom caused by legal rules and principles. Almost invariably in the domestic violence field, problems arise in connection with the systemic operation of the legal system in practice.7 Put more simply, a failure of one component of the legal system results in the failure of the whole; people get lost in the cracks between components. From a research perspective, what this means is not only is it necessary to explain domestic violence research, it is also necessary to explore evaluations of the various components of the system that can affect outcome in domestic violence cases (such as the performance of expert witnesses, of crown prosecutors, of lawyers, of child protection authorities, of judges, of witnesses, of domestic violator intervention programs, of counselling programs for victims and children, and of mental health, alcohol and drug treatment programs linked to domestic violence cases).
Then research evaluating the various components of the system has to be connected to the domestic violence research and both have to be connected to socio-legal research documenting patterns of outcome and experience of victims, children and perpetrators in domestic violence family law cases.
Only then, after fully identifying the problems and the connections between problems, does it become feasible to turn to legal research to identify legal tools – case law, evidence rules, procedures – that courts can use to respond to systemic institutional problems while, at the same time, offering justice in individual cases.
In sum, the author employs an intensive socio-legal institutional systems analysis starting from social science and socio-legal research documenting problems and connections between problems, then conducts legal research to identify legal options that can lead to solutions. Since law is seldom indexed with institutional problems in mind, the search for legal options, process and remedies commonly resembled a search for a needle in multiple haystacks. Nonetheless persistence helps. The end result, after six years, is the content of this EBB.
1.6
A comment on the need to take action
A discussion of research on the staggering social, economic and health costs of domestic violence is found in Supplementary Reference Chapter 1.
Each time the legal system fails to offer protection, or fails to take action to prevent further domestic violence, or fails to prioritize child safety and stability, or fails to respond to poor parenting patterns associated with domestic violence, an opportunity is lost to take action to reduce or even reverse costs and damages.
Some individual Canadian judges have taken action already by developing specialized criminal domestic violence court models utilizing new and coordinated approaches to domestic violence that prioritize perpetrator accountability and victim safety.8 Others in the family law field will soon follow.9
1.7
Taking Action: Judges can make the difference
Although only a fraction of Canadian domestic violence matters are brought to the attention of police, lawyers or courts,10 the decisions judges make in domestic violence cases — in criminal courts, in family and child protection courts — extend well beyond the individual case.
The decisions judges make, even the very words used, influence negotiations between family lawyers and between perpetrators and the persons they target. Sometimes "the legal system offers the last and sometimes the only protection available to domestic violence victims who hope to end the violence in their lives.” 11
Judges have a central role to play. It is judges who convey law’s message to society, to lawyers and mediators, to children, to victims and to perpetrators. "Judicial awareness and commitment to eliminating domestic violence is critical to the success of any domestic violence strategy."12
Judges can and do make a difference.
1.8
Tools for judicial action
This EBB is designed to offer quick access to resources and to practical tools. The goal is to help judges “make a difference” in domestic violence cases.
Some Chapters, notably chapters 1, 3, 5, 6, 16 and 17, are linked to more detailed Supplementary Reference Chapters for judges who would like a more detailed, nuanced understanding of issues or who wish to conduct their own research.
1.
Extract from: Mr. Justice Perry Schulman, Commission of Inquiry into the Deaths of Rhonda Lavoie and Roy Lavoie A Study of Domestic Violence and the Justice System of Manitoba. (Winnipeg: Minister of Justice and Attorney-General of Manitoba, 1997) p.18.
2.
N. Mandella (2002) “Foreword” in World Health Organization World Report on Violence and Health (Geneva: World Health Organization)
3.
Canadian Judicial Council (2004) Ethical Principles for Judges (Ottawa: Canada Judicial Council).
4.
For example, the complexity of research on the effects of domestic violence on children is documented in Supplementary Reference Chapter 5. The 40 page list of references on the effects of DV on children reviewed to prepare Chapter 5 is provided in a Supplementary Bibliography for judges who would like to conduct further research in that area. In addition to an inordinate volume of social science research is a growing body of neurobiological and medical research connecting excessive stress associated with severe or repetitive domestic violence or child abuse to structural changes in child neurological development and/or to health problems in adulthood. Those references and citations had to be cross checked with multiple sources to ensure acceptance by other specialists in those fields in order to ensure reliability. Luckily, researchers at HarvardUniversity came to the rescue when they posted a collection of summarized information, written for a lay audience, on the growing body of literature on children, toxic stress and neurological development at