Lawyering in a Family Justice System That Masks Violence

The family justice system masks family violence. There does not seem to be a dominant consideration of safety, including where there is family violence, beyond the best interests of a child analysis giving primary consideration to the child’s safety (see: Divorce Act, RSC 1985, c 3 2nd Supp, s 16(2)). Research shows that lawyers will advise their clients not to raise family violence as an issue, for fear of retribution and because the justice system does not recognize it properly. When women do make claims of family violence, abusers will make counterclaims of alienation (as an excuse for why the child does not want to be with the abuser), and judges will believe them. As a result, survivors are advised to make efforts to be “friendly” and to try joint parenting to ensure they have some contact with their children. They are told not to jeopardize their credibility, that they need to “look reasonable” (Haley Hrymak and Kim Hawkins, Rise Women’s Legal Centre, “Why Can’t Everyone Just Get Along? How BC’s Family Law System Puts Survivors in Danger” (January 2021) at 51.) Survivors may either surrender legal entitlements to prioritize their own or their child’s safety (e.g.: relinquish support for custody), or they may agree to terms that compromise their safety to look reasonable (e.g.: agree to shared parenting or periodic support payments). These dynamics erase family violence.