An as-yet unreleased report to the Chief Justice of the Supreme Court of Canada is urging an overhaul of the family law system.
The Globe and Mail has reported that it recently obtained a copy of the report, which is authored by a committee headed by Supreme Court Justice Thomas Cromwell, and is set for release very soon. According to the Globe, the report proposes several structural changes to the family legal system. The recommendations seek to minimize the personal and financial costs of resolving family disputes. Indeed, long and drawn out battles over custody, spousal support, and property can exacerbate tension between former spouses, and increase expense.
The report recommends strategies such as streamlining the family law process, designating more judges with expertise in family law, and empowering court personnel to help self-represented litigants. Additionally, the report recommends that estranged spouses attend one session with a qualified mediator before they are permitted to trial, and that “painful” cost awards be imposed against litigants who behave badly or impede the settlement process.
There is no doubt that these recommendations, if implemented, would go a long way towards improving the family legal system. However, like many other reports pertaining to access to justice, this report leaves one to wonder whether its recommendations will address the needs of those who are most vulnerable in family legal disputes: women survivors of violence.
Abused women are at greater risk of experiencing serious physical and psychological impacts as a result of their legal problems. Despite the severity of their situations and the fact that they tend to be disproportionately lower income – even more so following separation – many abused women still do not qualify for legal aid services. Consequently, many are left with no choice but to navigate the legal system unrepresented. Those who opt to retain legal counsel must endure the financial burden of exorbitant legal fees.
The repercussions of being unrepresented are great. It is not uncommon for an unrepresented abused woman to capitulate to her partner’s demands - no matter how unreasonable they may be. For instance, she may decide to make concessions that are not in her best interests or those of her children, such as accepting a joint custody or relaxed access arrangement.
Conceding to or being granted a joint custody order, or a liberal access order, creates years of difficulty for a woman whose abusive partner is intent on maintaining control over her. Abusive men can use such arrangements as an opportunity to harass, intimidate, and physically assault their ex-partner. As a result, children may continue to be exposed to violence either by witnessing it, or by being involved directly in the conflict.
A number of factors contribute to a woman’s inability to assert her interests in legal proceedings. She may be intimidated by her partner and his lawyer, or worried about the perceived threat of her partner’s retaliation. The financial impact of pursuing legal action can also be a deterrent, along with the potential risk of harm to her children. Furthermore, the phenomenon of legal bullying is prevalent in domestic violence cases. The abusive male partner can simply opt to pursue the matter through the courts until the woman’s resources are exhausted.
Although mediation, expert judges, and additional court support for self-represented litigants are undoubtedly useful resources for family law litigants, such solutions may not reach women who are fleeing domestic abuse. Rather, literature on domestic violence consistently shows that women survivors of violence must have a fundamental right to accessible and readily available legal representation.
Domestic violence cases raise complex issues that cannot be dealt with in the absence of counsel if a fair hearing is to take place. As a report by Luke’s Place Support and Resource Centre notes,
Woman abuse survivors and their children are severely disadvantaged when they do not have adequate legal representation, especially in the current climate that emphasizes mediation and shared parenting. Women who are unrepresented must complete complex paperwork and negotiations without a foundation of legal knowledge, often in the presence of the abuser and while dealing with fear, change and transition for themselves and their children.
Ensuring that women survivors of violence have access to legal support will require a financial commitment from government. As reported by the Globe, the report calls for a drastic increase in funding for legal aid in the area of family law. But it remains to be seen whether the provincial and federal governments respond. If they fail to act, then Charter-based claims for publicly funded legal representation where domestic violence has been alleged should be considered by members of the legal community.
On a final note, the report apparently also calls on lawyers and law schools to embrace a culture of mediation, and encourages law schools to stop minimizing the importance of family law in their curricula. I wholeheartedly agree that family law is as essential as other foundational law courses like torts and criminal law. However, I believe that educating and training future lawyers on domestic violence, in particular, is equally crucial. Women survivors of violence should be entitled not only to legal representation, but to effective legal representation. By this, I mean a lawyer who understands the complex dynamics of domestic violence, is sensitive to the needs of their clients, and ideally provides legal services from an anti-racist and anti-oppressive framework.
A failure to address the experiences of those who are most vulnerable in family legal disputes exposes women survivors of violence to the risk of continued abuse in domestic relationships; impairs their equality and dignity; and threatens their physical and psychological security and that of their children. As we anticipate the release of the report to the Chief Justice, I encourage you to consider whether its recommendations provide for effective and accessible legal representation for women survivors of violence. Anything less is unjust and unacceptable.
*Liz Majic is in her final year of law school at the University of Ottawa Faculty of Law. She is currently participating in a student-run seminar on gender-based violence and the law.
 For a comprehensive analysis of the challenges abused women encounter in the family legal system, please see: Ontario Victim Services Secretariat, Needs Assessment and Gap Analysis for Abused Women Unrepresented in the Family Law System, online: Luke’s Place < http://www.lukesplace.ca/research.htm>.
 Ibid at 2.