Victims of domestic abuse re-traumatized by face-to-face negotiations with partners, advocates say
Lawyer says it's inappropriate to force women into out-of-court mediation over parental rights
This story is part of Stopping Domestic Violence, a CBC News series looking at the crisis of intimate partner violence in Canada and what can be done to end it.
Women's advocates in B.C. say the provincial family court system is failing victims of intimate partner violence by referring them to out-of-court mediation where they are forced to negotiate with their abusers for parental rights.
Lawyer Pat Shannon says the women are often re-traumatized by sitting across the table from their ex-partner and end up with worse results when it comes to custody.
"In my experience women give in and sometimes my clients will tell me 'I said yes just to make it stop. I just needed to be out of that room,'" said Shannon, who works at the YWCA in Vancouver.
Shannon says in cases where there is a history of one party being physically, emotionally, or psychologically abused, the power imbalance between the two parties means it's impossible for them to negotiate in good faith.
"It's a special kind of nightmare that we are placing women in a room with, in many cases, their rapists and we're telling them to consider their rapist's point of view."
B.C. courts not screening for family violence
Shannon says women are ending up in these situations because parties aren't being screened for a history of family violence.
The B.C. Family Law Act requires family dispute resolution professionals including lawyers, mediators, arbitrators, and parenting coordinators to assess for family violence. However, there's no formal screening process when parties are in court before a judge.
In Shannon's experience, judges often immediately refer clients to a family case conference, which is an informal meeting between the two parties with a judge present.
Shannon makes a habit of trying to keep clients away from these kinds of meetings by informing the judge there is a history of violence and a meeting would not be appropriate.
"Typically, in my experience, judges will not give a lot of weight to that and in certain cases I've had them roll their eyes at me."
Vancouver woman manipulated by ex for years of mediation
Sara, who spoke to CBC News on condition of anonymity due to fears for her safety, spent eight years negotiating with her abusive ex-partner in face-to-face meetings.
"He intimidated me all the time. He stared at me in the room," said the Vancouver mother of two. "The judge doesn't seem to notice any of that."
"Judges appreciate that some fathers keep coming back to court because [it means] he must love the children."
Sara says he was unhappy whenever she spoke, he would swear and bang the table, and at times stand up four to five times in the same meeting.
She says in one meeting, her ex was so aggressive that even the judge couldn't handle it anymore and left the room.
Pilot project in Victoria
In some provincial courts, there is a requirement, known as Rule 5, which requires that each party meet individually with a family justice counsellor prior to a first appearance before a judge. During that meeting, counsellors assess the history of the relationship, including whether any abuse has taken place, and recommend whether mediation is appropriate or not.
A pilot project in Victoria's provincial court was launched at the beginning of the year to have parties meet with family justice counsellors to get assessed far earlier in the process.
Attorney General David Eby says the goal is to resolve as many issues as possible outside of court.
"It's better to focus on what the parties can agree on and for trained professionals to try to get the parties as close to agreement as possible so that what's in front of the judge is only the issue where the two parties need to decide."
He said in cases with a history of family violence, great care is taken to ensure parties are not coerced against their will into a mediation process.
Eby hopes, if successful, the pilot could be implemented in provincial courts across B.C., but more resources are needed to be able to provide the assessment and to respond to families in a timely manner.
In the meantime, Shannon believes that more training and education is required within the legal community.
"Lawyers need to have some understanding of how trauma impacts their clients and judges should have some understanding about how trauma can impact how they're going to hear evidence and how parties are going to be able to survive through a court process."