More Education for Judges and Service Providers,
More Resources for Women
In 2001, significant amendments were made to The Child and Family Services Act , which will potentially impact dramatically on women and children living in domestic violence situations. As well, the government simultaneously spearheaded a new approach to dealing with children exposed to violence against women through the design and implementation of a specific protocol that establishes a unique, and many say, problematic new relationship between children's aid societies (CAS) and violence against women agencies (VAW), delivering a range of counselling and support service to “battered women.” To examine these changes, we spoke with Debbie Ball, Executive Director of Faye Peterson Transition House in Thunder Bay , and Mary Lou Fassel, Director of Legal Services at the Barbara Schlifer Commemorative Clinic, Toronto . This is a summary of a conversation with them.
Q: What are the most significant changes in child welfare law that relate to children exposed to woman abuse?
One significant change in the amended legislation relates to the change in terminology from “children who are at substantial risk of harm” to “children who are at risk of harm.” For both Fassel and Ball, the removal of the word “substantial” has potentially both good and bad consequences for women. The change was made because it was believed to be too onerous for children's aid societies to meet the requirements (definition and standard of proof) of “substantial” risk when they brought child protection applications. Specifically, it is believed that recent high-profile child abuse cases that ended tragically in the deaths of children who were not adequately protected by the system, may have been the primary motivator for these recent changes. The changes in the law also allow for greater consideration and interpretation of the meaning and scope of the notion for "emotional harm" as it relates to children exposed to spousal abuse, something which many battered women's advocates have lobbied for over the years. But acceptance of the notion that children who are exposed to spousal abuse may suffer emotional harm as a result, also gives rise to the possibility that they may be deemed to be" in need of protection" by a CAS and battered women may therefore risk losing their children under circumstances they cannot control.
Q: How do these recent trends and policy initiatives affect agencies delivering social services to women and children living with violence?
Mary Lou Fassel sees the law as having broadened and being subject to wider application to social services providers who now have greater duties and obligations to alert child welfare agencies to potentially harmful situations under which a child may be living. Not only does the law impose a move onerous burden on service providers to exercise their judgment in determining whether or not a battered woman's child may be experiencing "emotional harm" as a result of the domestic violence in his/her home, but the law requires reporting of cases where (as previously mentioned) there is simply a "risk" of harm. "Risk" is an undefined word subject to individual interpretation. Furthermore, the law now requires 'ongoing' reporting which would extend over the entire duration of a counselling relationship. Theoretically, each and every time a woman discloses to her counsellor an instance of abuse by her partner, which was witnessed by her children, and which in the view of the counsellor, negatively impacted on the child, she may be required to report it. Clearly this would impact on the quality of the counsellor-client relationship, severely undermining the trust and confidence of the client and would erode the highly-valued adherence to strict confidentiality in the relationship - something which clients rely upon and treat as the foundation of their relationships with their service providers. While counsellors have always had to struggle with the legal obligation to report suspected child abuse, the recent changes in the law have significantly broadened and deepened that dilemma. Moreover, while the changes were well-motivated over the long-term they may result in further isolating and entrapping women and children in violent homes because women will be far more reluctant to seek assistance for fear of losing their children.
Debbie Ball cited lukewarm responses from Violence Against Women (VAW) agencies towards the new VAW-CAS protocol. The Act's changes have certainly altered the reporting mechanism, but “everyone is implementing it differently,” she says. Ball has found, among other things, that the Ontario Provincial Police and municipal police forces are now calling child protection agencies in cases that involve domestic violence. Ball says however that this new orientation to domestic violence is having some positive impact in family court proceedings, although she says that it is not yet clear about the long-term implications for custody decisions. In a recent case her organization dealt with, an abuser was awarded only supervised access to his child because of his record of violence towards his partner, rather than unsupervised access or even joint custody which are more common. However, at this time, these kinds of cases generally have a less than satisfactory conclusion.
According to Fassel, while CAS intervention in domestic violence cases could provide useful documentation of and support to abused women's claim to custody in family law proceedings, CAS interventions can also be perilous particularly in situations where the children have been or are at risk of being apprehended from a woman already separated from her spouse but still being abused by him. Often her ongoing vulnerability to abuse and her children's exposure to it are a direct result of a family court order that gives fathers generous access to their children.
Q: What are your suggestions for better public responses to the issue of woman abuse and its impact on children that would ensure the safety of women and children.
Ball stressed that “judges really need education on specific issues.” For example, the importance of understanding that not all fathers are necessarily good fathers or appropriate parents. She also asserts judges will perhaps better understand the cycle of violence on women if they c ome to understand the effects of exposure to spousal violence upon children.
Fassel and Ball discussed those prevalent values currently existing within the family law system that support the belief that maximum contact between a child and each parent after the parents' separation is always in the child's best interest. This belief underlies the popularity of the idea of joint custody and shared parenting. These ideas however are problematic for battered women because they construct a family arrangement that maintains or replicates the original power dynamic of the family before the separation. It focuses on fathers' rights to access their children and be part of the everyday life of their children but in so doing, it continues to expose women to violence and children to emotional harm.
Ball says that the new thinking about the harms to children who are exposed to abuse should shift the family courts towards getting abusive men out of the family home. Ball advocates that CAS should step up their involvement in family court proceedings, particularly in custody and access determinations, and testify to the detrimental effects that living with violence has on the children.
Unfortunately, CAS leaves the responsibility of protecting children from the harm of being exposed to abuse to their mothers as they enter into family law proceedings over which they have little power or control. Nor do women have the investigative and documentation resources or authority that a CAS possesses.
Women are also experiencing new problems within the criminal law which are complicating their family law rights. Ball has seen women who fought back against their partners in self-defence or in defence of their children actually charged with assault by the police. Women who are charged and prosecuted in the criminal courts are at great risk of losing their children in a family law proceeding to an abuser who has never, himself, been arrested, charged or convicted with a criminal offense. Despite the much-touted ‘zero tolerance' policy, the police have not been more aggressive or consistent in laying charges against abusers, as we would like. But women are increasingly running afoul of the criminal justice system and are not being properly defended within it.
Fassel believes that women are being advised to plead guilty and are acquiring criminal records as a result. The existence of a criminal record, in conjunction with a lack of evidence to corroborate her allegations of abuse by her partner, can have a critical impact on custody decisions. Ball also believes this situation of women being dual-charged is dependent on the police force. In Thunder Bay and District she sees this happening far less with the Ontario Provincial Police and more likely to occur with the Municipal force due to a lack of training.
An additional problem battered women must confront is the difficulty of finding lawyers willing to take their cases on legal aid certificates. Lawyers are reluctant to take on domestic violence cases because of the complexity of the cases, the emotional demands of such cases and the difficulty of advancing credible arguments about the negative parenting abilities that abusers typically would exhibit.
Q: Can you tell us about the unique circumstances of women seeking custody/access who are women with disabilities or who belong to minority communities?
Fassel has found that abused women with disabilities, regardless of whether their disabilities are physical or cognitive, have a tougher time proving that their children's best interests are better met by being in their care and custody. In spousal violence situations, there is an assumption that a woman with disability is less able to provide care for or protect herself and her children. According to Ball, the negative use of information about women's disabilities in custody cases is growing.
“We have the child welfare system, family law system and criminal justice system ...none of which are effectively holding abusers responsible for the harms they are perpetrating on women and children ," states Fassel.
For women from cultural backgrounds that are not dominant in Canada , the picture of what occurs in the family or child welfare systems grows more complicated due to cultural misconceptions and misunderstandings. Ball observes that when Aboriginal women use the mainstream system, there are significant prejudices that they experience many which underlie belief about the kind of care that their children receive. In some cases involving Aboriginal children, the primary caretaker may not necessarily be the mother but an assemblage of family and extended relations. Similarly, mainstream cultural beliefs about parenting practices in immigrant families can lead to erroneous assumptions about the mistreatment of children. Furthermore, a poor, non-English speaking, abused woman may be more likely to be subjected to greater intervention from child welfare agencies as well as other public authorities.
Q: In general, what should be done to improve the situation of abused women and their children?
Fassel states that battered woman often remain trapped both within their families and within the legal system. Both Fassel and Ball explain that, without available affordable housing, employment or training opportunities, and a solid social safety network, women may not be able to leave an abusive relationship at the very time that a child welfare agency threatens to intervene or apprehend children whom they believe are being harmed by the abuse they are being exposed to. In addition, at the point that women enter the family law system, they may lose what little control they may have had over their futures and future independence because court orders (i.e. shared parenting, generous access to fathers, etc.) have a tendency to replicate the situation women are often trying to escape. Thus one of the areas that demand immediate attention, according to Fassel, is to create options and services for women to enable them to live violence-free autonomous lives. Making substantial services and resources sufficiently available to women and children leaving abusive environments will also assist women to move into positions that better support their custody applications in family law where they can better demonstrate their ability to take care of and provide for their children.
As for service providers and advocates, a great deal more lobbying is required to address, and hopefully cease, the trends of the family law system that over-simplify custody issues in their belief that children can be "shared" equally by their parents and thereby be automatically happy and prosperous. States Fassel, to date there has been little recognition in the family law system that violent men are often emotionally and psychologically unstable, or to a greater extreme, egocentric, hateful and cruel individuals who possess little of the loving and nurturing instincts of a good parent.
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