With Mother’s Day approaching, it is important to talk about the health and well-being of mothers and their children who have experienced or been exposed to intimate partner violence. The release of the Mass Casualty Commission’s final report and the passing of Keira’s Law have put a spotlight on the issue, but we are still falling short of meeting the needs of survivors and their children. The non-profit and justice sectors have much to learn from each other.
Recent family law reforms in Canada have begun to shed light on the right of children to safety and well-being in homes where there is family violence. At the Access to Justice & Law Reform Institute, we have been working with lawyers and the non-profit sector to raise awareness about these reforms and help ensure their implementation on the ground.
Changes to family law in Canada
Changes to family law have seen, among other things, a concerted emphasis to change the way that judges make parenting orders when there is family violence. We now see the inclusion of a broad, evidence-based definition of family violence that includes elements of coercive and controlling behaviours and not just a focus on physical assaults. When making decisions about parenting, judges must consider the impact of family violence and prioritize child safety and well-being above all. It is no longer justifiable for family court judges to say that family violence or domestic violence has no impact on the children or on parenting.
These changes are especially important in light of Keira’s Law. In this case, Keira’s mother had asked for supervised access because of domestic violence and, in particular, coercive, controlling behaviours. Instead, she was told that domestic violence should not bear upon parenting orders. Tragically, her concerns were not heard and ended in the death of her young daughter in a likely murder-suicide by her ex-partner during an access visit. Keira’s Law will see training for judges on “coercive control in intimate partner and family relationships and social context, which includes systemic racism and systemic discrimination.”
Challenging domestic violence myths
Legislators and experts have grappled with how to dispel some harmful myths about the impact of domestic violence on children and survivors. A recent case from the Supreme Court of Canada, Barendregt v Grebliunas, 2022 SCC 22 considered the recent changes to the law and took the time to challenge several long-standing myths about family violence.
Specifically, the court commented that the notion that domestic violence does not have an impact on children and parenting is “untenable.” The court also acknowledged that violence often does not end at separation and that risk of violence may in fact increase. Further, this case highlighted that there are many legal and social barriers to leaving an abusive relationship.
Trauma and family violence
Integral to addressing the myths about the impacts of domestic violence on children is incorporating social science literature about the serious and long-lasting impacts of family violence on both survivors and children into law. In particular, family law is beginning to understand how trauma affects survivors and how child well-being and development is affected when children are exposed to family violence and stress in the home.
Family violence is a leading cause of trauma and is present in many of the cases that pass through the family justice system. Trauma can have serious impacts on survivors of violence, such as post-traumatic stress disorder, anxiety, depression, substance use, suicidal ideation, and chronic physical health issues. For children who are exposed to family violence, trauma can affect brain development. Our brains begin developing in the womb and continue to develop until our mid-20s in a process called neurogenesis. When children experience trauma, this process may be interrupted, causing temporary or permanent changes in their neurobiology. This places such children at higher risk of developing poor social skills, as well as the aforementioned health issues. It may also affect their relationships later in life, preventing them from forming positive and meaningful connections.
Children with caregivers who are abusive, absent, or unreliable are more likely to develop anxious or avoidant attachment styles. Changes to family law emphasize that indirect exposure to family violence can be just as damaging to children as direct exposure. Family violence has a spillover effect, and children experience its aftermath, even if they do not witness it directly.
Intersectionality and a trauma- and violence-informed approach
It is well known that family violence is a gendered-issue, disproportionately affecting women. It is also an intersectional issue. For example, young women and girls, Indigenous people, LGBTQ2S+ individuals, gender minorities, women with disabilities, women in rural communities, older adults, Black women, and newcomer women experience domestic violence more frequently. Individuals under more than one of these social categories may be at an even higher risk of experiencing domestic violence.
Nova Scotia recently signed on to the National Action Plan to End Gender-Based Violence. This plan emphasizes the importance of providing supports and services that are trauma- and violence-informed as well as culturally appropriate. The plan also explicitly recognizes that gender-based violence is a violation of human rights.
The Mass Casualty Commission report made recommendations to more effectively fund and support community-based programs and services addressing gender-based violence.
The recent release of the Mass Casualty Commission report emphasized the gendered and intersectional nature of gender-based violence and made recommendations to more effectively fund and support community-based programs and services addressing gender-based violence.
Motherhood can be central in intimate partner violence. Abusers may control a woman’s mothering beginning at pregnancy. Women, especially immigrant women, have reported forced pregnancies, forced abortions, or miscarriages as a result of abuse. Women in abusive relationships sometimes have no choice in whether they become mothers. Additionally, abusers may use or threaten violence in front of the children to undermine the mother’s authority. This can affect children’s attitudes and behaviours toward their mothers. An abuser may also threaten to use the legal system to take children away from their mother if she attempts to leave.
There are significant barriers to leaving an abusive relationship, especially for women who lack financial resources. The period leading up to and following separation is particularly dangerous, because it is the time when the violence is most likely to escalate, leading to serious injury or even death.
When survivors seek help from public and private institutions, they are sometimes met with scrutiny by staff members required to report child abuse or neglect. Mandatory reporting laws directly affect mothers who are survivors because they are sometimes held responsible for the abuse they and their children have experienced. Poor women and Indigenous and Black women are disproportionately monitored and scrutinized on their capability as parents. Poverty may be conflated with child neglect, and women of colour are sometimes met with racial bias. Currently, Indigenous children are disproportionately represented in child welfare reports and out-of-home care placements.
The impacts of systemic discrimination and colonialism may also intersect with a survivor’s experience in the justice system or her experiences of family violence. For example, coercive, controlling violence may affect a Black or Indigenous woman differently if a partner threatens to make a call to police or child protection authorities as part of their pattern of abuse, given the long history of harms from these institutions.
Bridging the gap between the justice and non-profit sectors
The changes to family law outlined above are positive, but if we really want to ensure that the law on the books translates into reality, the justice and non-profit sectors must work together. The non-profit sector – in particular, the women’s sector – has a lot to teach the justice sector about how laws and policies are playing out on the ground and affecting the lives of survivors and their children. Conversely, the justice sector will be well served in engaging the non-profit sector to ensure that the sector understands the limits and potential of what the legal system can do for families.
If we really want to ensure that the law on the books translates into reality, the justice and non-profit sectors must work together.
Ultimately, however, it will be both sectors working together in collaboration that may provide a more holistic and trauma- and violence-informed approach to addressing family violence. A trauma- and violence-informed approach uses six key principles: safety, transparency, collaboration, peer support, empowerment, and intersectionality. Not only do we need more ways to ensure safety in emergency situations that do not rely upon criminalization and child protection alone – which might in and of themselves be retraumatizing for survivors and their children – but the justice sector must seriously engage with the non-profit sector in finding ways to support prevention efforts.
The justice sector must seriously engage with the non-profit sector in finding ways to support prevention efforts.
The non-profit sector has much to teach the justice sector – for example, about the fundamental need survivors and their children have for resources and access to income to ensure their safety. Poverty and lack of affordable housing, childcare, literacy, education, transportation, and court support are frequent barriers that prevent survivors from moving forward. Additionally, meaningful engagement with restorative programs across Nova Scotia, such as Transition House, Alice House, Be the Peace, Bridges Institute, NISA Homes, The Youth Project and many more, is welcome. The non-profit sector can provide operational funding and training for people working with survivors as well as monitor and hold these programs accountable.
Conversely, the justice sector can work with the non-profit sector to develop primary prevention approaches that address the root causes of gender-based violence. Without both of these sectors working together, we will fail to truly see the responsive justice sector that is required in order to take action to end intimate partner violence.
