Justice, Family Law, and Intimate Partner Violence in Canada

In the realm of gender-based violence, access to justice provides both procedural and substantive lenses, demanding fair and trauma-informed procedures and substantively just and safe outcomes for survivors (who are mostly women and children). Since 2021, the Canadian Divorce Act has mandated “family violence” as a consideration relevant to the best interests of children in parenting disputes. Yet all too often, mothers face insurmountable challenges in their attempts to access justice in this realm where they raise claims of family violence. These challenges include the realities that legal processes are strategically manipulated by perpetrators to further their control and cause harm to their targets, and that legal outcomes still fail to pay sufficient regard to the harms of family violence, including coercive and controlling violence. The authors have recently completed a review of family law decisions considering the Divorce Act reforms that confirm these challenges. First, the review reveals the multiplicity of ways in which legal systems abuse is enacted, including extensive cross-examinations of survivors by self-represented perpetrators and false reports made by abusers to various legal system actors designed to curtail survivors’ access to supports and deplete their resources. Second, the review illustrates how courts struggle to understand coercive and controlling violence and its impact on women and children, and not infrequently find mothers to have engaged in coercive control in circumstances where they were attempting to protect their children. These issues are simultaneously embedded in, and perpetuate, the intersecting inequalities experienced by survivors and children and raise fundamental concerns about the ability of family courts to do “justice”.