BCIFV home > Media Releases > October 30, 2001

For Immediate Release: October 30, 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 III:

What happens when moms and kids flee violence?

Few people who are familiar with divorce law in Canada would disagree that amendments to both federal and provincial legislation are needed. Certain aspects of the federal Divorce Act, for example, combined with a lack of understanding in the legal system of the dynamics of family violence, create a minefield of problems for moms and kids fleeing violence, while playing into the hands of abusers. The tripwires include:

• The legislation itself: in determining custody and access, the Divorce Act instructs judges to consider "the best interests of the child" - but it fails to define what that is or to provide judges with guidelines to determining it.

• Again, the legislation: A section of the Divorce Act requires judges to consider the willingness of the parent with custody to facilitate access visits despite the fears of the custodial parent for the safety of herself or the child. Provinces like BC lack adequate supervised access facilities.
• Lack of training and availability of expert witnesses: Few Family Court judges hear evidence about the impact on children of exposure to violence, or its extensive connections with direct child abuse, and therefore do not consider it relevant to determining the child's best interests. Provinces like BC lack adequate resources for expert legal representation and child custody and access assessments.

• Abusers' manipulation: Abusers often use the legal system to wear down victims' resources until they win by default. Provinces like BC lack adequate civil legal services for abused women.

Families in which abuse - which is about power and control - has been a factor are over-represented in contested custody cases. This in itself is not surprising: for abusive men, winning custody can have less to do with their children's interests than with continued control over their children's mother. What is surprising is the number of men with known histories of woman assault who win custody: One study revealed that in 59 percent of contested cases in which men won custody, there had been a clear pattern of woman assault.

Clearly, changes to the Divorce Act that take family violence issues into account, paired with better training of court personnel and expert witnesses, would begin to address these problems. Yet changing federal legislation alone is not enough because separation in never-married families is governed by provincial laws, which vary from impossibly vague to so detailed without reference to family violence that women and children risk being caught in the legal nets created to protect them. For example:

• Some provincial legislation dictates that one factor to be considered should be the children's connection with extended family members. Yet there is a tendency in violent families for abusers to isolate victims from their friends and families while retaining ties to the abusers' friends and families. However, the latter may be complicit in the violence - and in continuing the violence, and the children's exposure to it, post-separation.
• A stipulation regarding financial stability overlooks financial control as a tool of abuse. Women fleeing violence often have to take low-paid entry-level jobs to survive. Three years after separation, the incomes of most women and children drop by 30 percent while men's incomes double. These numbers reflect systemic problems, yet the law allows them to be used against women in custody disputes.

Clearly, both federal and provincial legislation must be amended, but those amendments must take the realities of family violence into account.

This is the third in a series of nine press releases. Next week: Caught in the crossfire: Amendments to laws governing separation and divorce must resolve conflicts between civil and criminal law.

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 3, 2001