BCIFV home > Media Releases > December 3, 2001

For Immediate Release: December 3, 2001
Contact: Penny Bain at 604-669-7055 or 1 877-755-7055 or
pbain@bcifv.org or www.bcifv.org

Media Release:

Problems with Proposed Amendments to Divorce Act, Part IV:

Caught in the Crossfire Between Civil and Criminal Law

When it comes to divorce in violent relationships, civil and criminal courts can work against each other - and against women and children - because neither court is fully equipped to deal with the issues.

As the legislation is currently written, says Vancouver lawyer Patricia Bond, it is often better for issues of abuse arising in divorce proceedings to be dealt with in civil court, even when criminal behaviour is involved. Once referred to criminal court, the civil proceedings can be put on hold, leaving women and children at risk.

Two cases illustrate this: In one "bone-chiller," recalls Bond, a man was found in his wife's home about to take the children, having already packed their passports in his car. Because the case was in civil court, where the burden of proof is lighter and the judges' duty to protect children overrides the parents' rights, the man was jailed immediately, and soon after sentenced for contempt. Giving abusers time to "sit in jail and wake up," says Bond, can hasten the conclusion of the divorce proceedings, to the benefit of the women and children.

In criminal court, however, a heavier burden of proof and the possibility of bail can allow cases - and abuse - to continue unabated. "One nightmare case I remember went on for years," says Bond. "He exhausted her financial resources, she got no help, and the system permitted him to carry on and on tormenting her" - and exposing the children to the stress and trauma of witnessing Dad's ongoing torture of Mom.

But the civil system, too, is problematic, because it's based on the assumption that litigants have money, which is rare for women fleeing abuse. Legal aid used to provide some help, says Bond, "but there are dramatically fewer lawyers available and fewer people qualify for legal aid." As well, many people were referred to legal aid through private lawyers who would monitor inappropriate rejections and advocate for applicants. Changes to the system have made this impossible, leaving rejected applicants with "no voice and no visibility."

But even those who are accepted may fare little better than those who are rejected if they are referred to an unsympathetic or uninformed lawyer, or if they are inappropriately referred to mediation. Bond is "a big advocate" of mediation - "if the woman and children are protected and if the mediation is conducted by a skilled, counselling-based mediator, and if two counsel are present," she stresses.

"Anything less may cause the abused person to agree to things that are not in her or her children's best interests simply because she wants the abuse to end." However, she's clear that sometimes nothing short of an identity change will protect the woman and children, even if the abuser is in prison.

What would make the system work better? Legislative changes mandating that civil and criminal courts work together toward the safety of abuse survivors, and adequate resources to ensure access to sympathetic and knowledgeable counsel.

This is the fourth of nine press releases. Next: What becomes of the children: Why removing children from homes marked by spousal abuse is usually not in their best interests. For more information, call Penny Bain at 604-669-7055 or 1 877 755-7055, email pbain@bcifv.org, or visit www.bcifv.org.

Click here to go to the next media release in this series on Family Violence and Custody & Access - December 10, 2001