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Why Divorce Cases Involving Allegations Of Abuse Still Confound Family Courts

Chatelaine logo Chatelaine 2021-01-15 Flannery Dean
a painting of a man and woman posing for a photo: A portrait of a blonde woman with her young son © Provided by Chatelaine A portrait of a blonde woman with her young son

Kate’s son, Luke, was giggly and compassionate. At three, he noticed when there were no gifts for his mom under the Christmas tree. Most of her photographs of the preschooler were destroyed; after taking their son’s life, her estranged husband set the family home on fire. (Illustration: Phuong Nguyen)

Their escape that summer was something of a miracle.

It was August 1997 and Kate, then 43 years old, and her son, Luke, three and a half, had been living with her husband’s escalating emotional and psychological abuse for years. Over the course of their five-year marriage, Kate had watched as her husband’s mental health deteriorated to the point where he stopped working as a contractor. Controlling and belittling his wife became his full-time preoccupation.

Kate had left with Luke before but had been wooed back by promises that things would change. They did—for the worse. Now her husband demanded complete control over his family. He monitored Kate’s phone calls and took away her car keys, insisting on driving her to and from work each day. He gutted the upper levels of their Durham Region home, supposedly for a renovation, leaving his family to live in the unfinished basement for months. It was dark and cramped and frightening down there. Every window had been blocked except for one.

“It was to isolate us,” says Kate. “It was awful.” She knew they had to get out.

One night, when her husband went out for cigarettes, she snuck in a phone call to her brother. The next evening, Kate’s husband made his usual run, picking Kate up from work with Luke in the back seat, unaware that her brother was following them at a distance. When her husband pulled into their driveway, her brother drove in behind them, got out and physically blocked Kate’s husband, giving Kate time to pull Luke from the back seat and dash for her brother’s truck.

Her husband leaped into his car and pursued them. He tried to run them off the road and chased them all the way to the domestic violence shelter where Kate had planned to seek refuge.

That night, police escorted her husband from the shelter’s property. But afterward, they informed Kate that the next time her husband showed up, they couldn’t do anything: He had a legal right to see his son.

Seven days after that high-speed chase, Kate found herself in the cavernous waiting room of a courthouse, seated just a few feet away from her estranged husband, who kept approaching her. She sat there for hours, outside the room where their lawyers attempted to negotiate a separation agreement.

Kate had told her lawyer everything: the darkness of the psychological and emotional abuse and her belief that her husband was mentally ill and needed treatment. She shared her safety concerns, that she wanted sole custody of Luke, and that she believed that her husband’s visits with him needed to be supervised. Sitting in the lawyer’s office, she felt heard, but that feeling “dissipated like a mist” when they got to the courthouse.

At one point during that long day, her lawyer emerged from the negotiation to tell Kate that her husband would accept her request for sole custody, but only if she dropped her demand for supervised access. Kate refused, and said she wanted to go before a judge. Her lawyer didn’t think that was a good idea—she told Kate that it would make her look like an “adversarial” partner, which wouldn’t serve her well. “I felt threatened,” says Kate. She became worried about losing custody of Luke altogether if she persisted. “So I signed.”

The next day, Kate passed Luke over to her ex in a McDonald’s parking lot. She watched her son walk away with his father. Within hours, Luke was dead. After killing his son and setting the family home on fire, her ex killed himself.

Now in her late 60s, Kate has never remarried or had another child. To talk about that time in her life is still a physical experience, one that makes her stomach clench. She vividly remembers seeing her husband’s lawyer in the queue of mourners at Luke’s memorial. “That’s not the man I spent eight hours with,” he said when he faced her. Kate thought it was brave of him to show up, but she wanted to tell him something, too.

“That is the man I spent eight years with,” she replied. “And nobody would listen to me.”

***

Most Canadians are able to end formal unions, even those that involve children, without going in front of a judge. Only about 20 percent of separating couples go to court, and only five percent will be involved in prolonged litigation. However, that’s not necessarily because everyone else is getting along.

The family court system is not free, and those who don’t qualify for legal aid must pay lawyers out-of-pocket or represent themselves. Cost is one of many reasons that divorcing couples face real pressure to settle out of court.

The minority of cases that do end up in front of a judge tend to be dubbed “high- conflict” by the family court system. The label emerged in the late 1970s and early ’80s, and denotes a divorce that is marked by enduring and bitter disputes between parties, and a chronic inability to communicate. It was a response to research that confirmed that prolonged parental fighting is bad for kids. The term was meant to help flag cases that could negatively affect children’s well-being. It was never supposed to pinpoint domestic violence.

Across Canada, family court is a tangled, vastly under-resourced jungle that includes hundreds of lawyers, judges, child-protection workers and custody assessors. It’s a system that has long struggled to deal with cases that involve allegations of domestic violence, especially when determining custody and access. That’s in part due to a culture rife with sexist stereotypes that won’t acknowledge the high rates of domestic violence in divorcing couples, or the gender-based reality of that abuse.

The result is that the high-conflict label has been too broadly applied, often lumping merely bitter splits in with truly dangerous ones. Too often, its use threatens the safety of women and children coping with violence, power imbalances and patterns of coercive control.

“I think there has been a backlash against domestic violence education and the inroads that we’ve made since the 1970s,” says Linda Neilson, who researches family violence at the University of New Brunswick. Neilson practised family law in the late 1970s and early ’80s, when, she says, there was a strong focus on the effects of domestic conflict on children. She is now a professor emerita and research associate at the Muriel McQueen Fergusson Centre for Family Violence Research, and has been studying domestic violence and family law for more than three decades.

Neilson says that while there have been some strides in addressing domestic violence in criminal courts, family courts have been slower to absorb the realities of abuse and its impacts on women and kids. Despite decades of evidence, women fleeing abusive homes must still navigate a system that doesn’t always respect a well-established truth: that attempting to leave an abusive partner measurably increases their risk of harm. Women separating from spouses in Canada are more likely to experience physical violence or injury than married women—and they’re nearly six times more likely to be killed. The likelihood of harm to children also goes way up when perpetrators of domestic violence separate from their partners.

According to the Canadian Domestic Homicide Prevention Initiative (CDHPI), parental separation and a history of abuse are the two highest risk factors for domestic-violence-related child homicides. Custody disputes may be an additional aggravating factor. Annually in Canada, about 30 children are killed by a parent. Mothers are responsible about 40 percent of the time, more often than not within the context of mental illness or postpartum depression. In the 60 percent of cases where fathers are the murderers, anger, jealousy or post-separation retaliatory revenge are the usual motivations.

The CDHPI is working to develop prevention policies and reforms by combining the findings of six provincial committees that review domestic homicides, including Ontario’s Domestic Violence Death Review Committee (DVDRC). Between 2003 and 2018, the DVDRC reviewed 470 deaths resulting from 329 cases of domestic violence in the province.

Committee member Peter Jaffe has been researching domestic violence for over 45 years. He likens the DVDRC’s work to investigations that take place after a plane crash. “We’re trying to figure out what went wrong. Was there pilot error? Was it the weather? Was it a mechanical problem?” says Jaffe, who heads up the Centre for Research and Education on Violence Against Women and Children at Western University in London, Ont.

The research usually reveals that it’s a lot of things, often converging at once. But most domestic homicides share two common features: one, that the couple had a history of abuse, and two, that they had an actual or pending separation.

Rachel Birnbaum has been working with both high-conflict families and families dealing with domestic violence since the late 1990s. A social work professor at Western, her research suggests that “high-conflict” has been used to describe a spectrum of behaviours, everything from exes bickering over financial issues to serious abuse.

“You need to be careful about separating high-conflict [situations] from domestic violence,” says Birnbaum, who also studies children’s rights. “They are not the same thing and . . . children and women can end up dead or in dire straits.”

She’s found that about one-third of cases dubbed high-conflict by Ontario courts either had substantiated evidence of or valid concerns about domestic violence.

That’s why she’s wary of the general preference for mediation over court: It can save time and money, but it can also force women to negotiate with former abusers, or even refrain from disclosing abuse at all. For a 2020 report, Rise Women’s Legal Centre in Vancouver spoke with both frontline workers and women who had experienced abuse, and heard that it was common for women experiencing abuse to be told by their lawyers that mentioning domestic violence in court would make them “look bad.”

Even though such advice is rooted in the working realities of the family court system, Neilson believes it amounts to silencing women. “It’s the classic double bind,” she says. “Either she doesn’t include the information in fear of being seen as adversarial, or she does go forward and is classified as the adversarial partner.”

As Kate’s lawyer warned her, being labelled high-conflict is broadly stigmatizing. There’s a widespread sense that couples who are unable to resolve their issues without court intervention are two halves of a toxic whole. Gender myths can compound the problem.

A 2011 U.S. study found that judges and custody evaluators were more likely than legal aid lawyers and social workers to believe that battered mothers lie about abuse and alienate kids from their fathers. They were also more likely to discount domestic violence as a factor when considering custody and access decisions. Lack of knowledge about danger assessment and post-separation violence were also related to cases in which abusive partners were given sole or joint custody.

In addition to being seen as adversarial or spiteful, a mother who alleges abuse also risks being accused of “parental alienation,” or trying to turn a child against the other parent. That concept has gained traction in family courts around the world—it’s often invoked in custody disputes by parents who have been accused of abuse, and has resulted in children being placed with alleged abusers.

Concern about the increasing popularity of the parental alienation defence is so high that its mere inclusion in the index of the World Health Organization’s (WHO) International Classification of Diseases brought together more than 350 experts from 36 countries. In 2019, the group filed a complaint arguing that the controversial concept is not backed by rigorous scientific data and fails to address gender equality issues. The group did not want the idea validated by the international body, and was successful in having the concept removed from the index.

Neilson was a signatory on the complaint. She sees parental alienation as a problematic concept that echoes the abusive tactic of accusing a victim of having provoked violence in the aggressor. “Why isn’t the onus on each parent to demonstrate what she or he has done to promote the best interests of the child?” she asks.

a group of people posing for the camera: An oil portrait of Jennifer Kagan-Vaiter with her late daughter, Keira © Provided by Chatelaine An oil portrait of Jennifer Kagan-Vaiter with her late daughter, Keira

Jennifer Kagan-Viater wanted visits between her daughter, Keira, and her ex-husband suspended, or at least supervised. Weeks before Keira and her father were found dead, a judge denied the matter was urgent and scolded both parents for their “toxic” dynamic. (Illustration: Phuong Nguyen)

Jennifer Kagan-Viater’s split from her ex-husband, Robin Brown, ended tragically last year. The couple’s divorce was considered “high-conflict” from the start, and took them in and out of court for three years. Yet another appearance had been scheduled for February 20, 2020—Kagan-Viater was hopeful that Brown’s access to their daughter, Keira, four and a half, would be restricted. But on February 9, Brown and Keira were found dead at the base of a cliff at Rattlesnake Point, a popular hiking spot in Milton, Ont.

Kagan-Viater is still waiting for police and the provincial coroner to confirm what she believes is true: that her daughter’s death wasn’t accidental but rather the fulfillment of a threat her former husband made when she brought up separation. “I’ll make your life a living hell,” he told her.

A palliative-care doctor, Kagan-Viater met Brown in 2012. He was handsome, deferential and chivalrous, and an engineer at a respected company. He told her he had a PhD from the Massachusetts Institute of Technology (MIT). The two were married in a lavish wedding ceremony in 2013.

Then things started to change. Her new husband became possessive and controlling, accusing her of meeting men behind his back and demanding all the passwords to her devices. His anger was explosive and troubling. Less than a year after they were married, one of the couple’s poodles brought a dead mouse into the house, and Kagan-Viater called Brown for help. Livid, he took the mouse out of the dog’s mouth and rammed it into hers.

“It was disgusting. I don’t know if it was rotting or something, but I could taste it,” she says. The next day he refused to discuss his behaviour. “I thought to myself, ‘Okay, this is not normal,’ ” says Kagan-Viater. But she was confused. “I’d never been in an abusive relationship before. I didn’t think it would ever happen to me.”

After Keira’s birth in 2015, Kagan-Viater says Brown’s temper became worse. Sometimes he would bark at her to get the baby to stop crying; other times he would actively block her from the weeping child. Eight months later, still on maternity leave, Kagan-Viater’s growing fears led her to leave with the baby. Later, she discovered worrying deceptions, including that Brown had never gone to MIT.

Both negotiation and mediation failed as the couple attempted to hammer out custody, spousal support and child support agreements. Kagan-Viater had primary physical custody of nine-month-old Keira initially, but Brown wanted 50/50, and became more aggressive in court.

For years, Kagan-Viater coped as Brown tried to force her into agreeing to his terms. Early on, he took Keira without Kagan-­Viater’s consent, then sent a lawyer’s letter requesting joint custody. Kagan-Viater filed an emergency court motion; contacted the Halton Children’s Aid Society; and finally disclosed her abuse to Halton Regional Police, who arrested Brown and charged him with assault (the Crown eventually dropped the charge). It took eight days for Keira to be returned.

The next judge they saw observed that Kagan-Viater had been in an intolerable situation, and was acting in her child’s best interests when she left Brown.

In 2016, the former couple undertook a parenting assessment with a psychiatrist to help settle the question of custody. It included a visit to each of their homes and multiple appointments. The process stretched into 2017 and cost each of them tens of thousands of dollars. That fall, there were constant court dates, including the custody trial. Brown countered every domestic abuse allegation Kagan-Viater made with his own.

In the eventual ruling, Justice Douglas Gray wrote that he didn’t feel capable of sorting out the veracity of either spouse’s abuse claims. Gray believed that the incident with the dead mouse had happened, and conceded that Brown had lied to the court and been aggressive and “somewhat” bullying toward Kagan-Viater.

But he also interpreted Kagan-Viater’s resistance to contact with Brown as “not in the best interests of Keira.” Moreover, Gray indicated that he didn’t consider partner abuse relevant to parenting. He didn’t deem Brown’s behavioural issues relevant to determining parental access, citing case law in which a man who had allegedly strangled, slapped and sexually assaulted his wife was still granted overnight access to their children.

Gray granted Brown overnight visits with Keira. Access would be a 40/60 residential split, with the former going to Brown and the latter to Kagan-Viater, who was also given more decision-making power over Keira’s health and education.

The idea that a history of abusive behaviour toward a partner isn’t pertinent to parenting is a common response in family court, says Pamela Cross. She’s the legal director of Luke’s Place, a non-profit that helps women fleeing abuse navigate the family court system in Durham Region. (It’s named after Kate’s late son.)

The reality, Cross says, is that abusive partners often find new tactics (such as financial abuse, threats and defiance of court orders) after separation, and “often, they use the kids as a tool to exert power and control over the former spouse.” Judges who don’t understand this often put the non-abusing parent in the position of having to maintain contact or be deemed the problem. Kagan-Viater has 20 boxes of legal papers in which judge after judge expressed concern about Brown’s behaviour but ultimately labelled the entire situation “toxic” or “high-conflict.”

In June 2019, Kagan-Viater tried to appeal Justice Gray’s decision and was denied. The court dates continued. Many of the appearances were due to Brown’s violations of their court-ordered arrangement, including refusing to let Keira speak to her mother while she was with him. In October 2019, he failed to return her. His access to his daughter was suspended—for a week.

A month before Keira died, Kagan-Viater filed another urgent motion asking for Brown’s access to be suspended or supervised. That judge found “compelling” evidence to suggest that Brown was coaching Keira to make false allegations of abuse against Kagan-Viater’s new husband, but still denied that the matter was urgent, saying it could wait until the investigation into the allegations was completed.

He scolded the couple for what he labelled as their toxic dynamic and its detrimental effects on Keira. “If I look at the past four years of her life, I anticipate what is going to happen for the next 15 years of her life, and it is not even a little bit pretty,” said the judge.

Twelve days later, Keira and Brown were found dead.

***

Every expert I spoke to suggested ways that family courts could better distinguish between difficult divorce cases and those with potential domestic-violence concerns. One idea is a mandatory preliminary screening of every separation case before it’s opened, looking for red flags that warrant having a domestic-violence expert further consider the specifics. Possible abuse situations would then require evidence-based recommendations about how to proceed safely.

Birnbaum, from Western, believes that having one unified family court would help, too. In Ontario, family law cases are heard in diverse settings, including Superior Court, the Ontario Court of Justice and the Family Court of the Superior Court.

Canada also has one Integrated Domestic Violence Court, in Toronto, where cases are usually handled by lawyers and judges with experience and education in risk mitigation. But since only a fraction of women who endure domestic violence report it to police, most survivors don’t have their cases heard there. That means most cases are handled in courts where judges aren’t obligated to have family-law experience.

There’s a chorus calling for every professional who works in family courts to have mandatory, specialized training in domestic abuse (physical and otherwise). Better education could counter sexist stereotypes that uphold systemic problems, and lead to custody and access arrangements that reduce the risks of harm.

Custody and access cases are guided by provincial and territorial family laws, as well as the federal Divorce Act. Each level has a “best interests of the child” test: According to the federal test, courts are told to consider such factors as the views and preferences of the children; parents’ willingness to support contact between the children and the other parent; and each parent’s stability, past parenting and plans for parenting in the future.

Cross says that this test has long failed to clearly identify partner abuse as a parenting concern. But in 2019, the federal government passed Bill C-78, amending the act and adding what she calls “a really extensive, deep and nuanced definition of family violence.”

It includes emotional and psychological abuses, such as intimidation and coercion, among other harms. It also offers clear criteria for the best-interests-of-the-child test, which, Cross says, “must include an examination of whether or not there has been family violence.” After a delay due to COVID-19, the bill comes into effect in March 2021.

In the meantime, some provincial governments have tried to tackle the gap already. In 2011, British Columbia passed some of the country’s most nuanced legislation. Its Family Law Act spells out the need for courts to consider what it refers to as “family violence” as a factor in determining the best interests of the child.

But in late 2020, Rise Women’s Legal Centre reported that B.C. courts are inconsistent in applying the law, noting that legislation can’t change “underlying attitudes and assumptions . . . about the dynamics of interpersonal violence.”

Old habits and stubborn stereotypes often put women and children in harm’s way. “Judges and lawyers are members of our society like everybody else, and we live in a society that doesn’t take intimate partner violence seriously,” says Cross.

And while the murder of children by former spouses is one of the worst consequences of this enduring blindness, it’s not the only one.

“[In some cases,] the child isn’t dead, but they are not safe either, and the mother spends the next 10 to 15 years constantly in a state of fear and anxiety,” she says. “Then those kids grow up, and what kinds of relationships are they capable of? The cycle is just perpetuated.”

In their children’s memories, both Kagan-­Viater and Kate continue to advocate for survivors of domestic abuse. In 2003, Kate helped open Luke’s Place. Her son’s name “means bringer of light,” she says, and the advocacy service is “bringing light to all the horrible ways that women are being abused and the way courts continue that abuse.”

Kagan-Viater wants an inquiry into how her case was handled. She’s also started a Canadian chapter of The Court Said, an international campaign aimed at changing the way domestic violence is treated in family courts.

“I want to see better education and training for all those working within the family court system,” says Kagan-Viater. “We have to stop shoving this problem under the rug as if these kids never lived.”

Correction: this article has been amended to show that RISE Women’s Legal Centre in Vancouver spoke with frontline workers and women experiencing abuse for its 2020 report, rather than surveying 160 abuse survivors.

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