People experiencing domestic abuse must often deal with several legal matters while addressing that violence. Some matters will need urgent attention. But which ones?
When the neighbours called 911 on Saturday night, Maria’s life went into a tailspin. As the police were arresting Paul, they told her to expect a call from Children’s Service. They also suggested that she call Legal Aid on Monday to see about getting an Emergency Protection Order to keep Paul away. She freaked out that Children’s Services might take her children and thought about fleeing with them – but where would she go? And what would she do for money? Paul had run up charges on her credit card but had not made payments on it. She had no credit and a ruined credit rating. And now the landlord was threatening to evict her. Paul had already run his business into the ground. She was a director of their company, but she never had anything to do with the actual business. Revenue Canada was after them for not paying taxes. What other surprises were coming?
She spent most of Sunday crying or on the phone to her friend who told her that at least she could get out of her lease early because of the domestic violence. How would that help if she had no money and nowhere else to live? And what was up with the police? When would Paul be released? When he did come home, he would be furious. Last night’s beating would be nothing compared to what he would do next. What to do? Should she go to a shelter? Would they even take her? How would she get the kids to school? What did she need to tell the principal?
If only the neighbours hadn’t phoned the police. If only her uncle hadn’t cheated her out of her share of her father’s estate. If only…
Can it get any worse?
Actually, it can. If Maria is an immigrant, especially if her ability to communicate in English is limited, Paul has another whole set of ways he can exercise coercive control over her. He might be able to limit access to local support, turn her local community against her, or use community leaders to intimidate her into staying with him. He might threaten to withdraw his support for her application for permanent resident status or that of other family members who want to come to Canada. He might even threaten to harm family members back home. Would she even be able to stay in Canada or would she be separated forever from her children?
While no two cases of domestic violence are the same, they are rarely simple. People experiencing domestic abuse must often deal with several legal matters while addressing that violence. Some matters will need urgent attention. But which ones? Getting on top of them all often requires people experiencing domestic violence to engage with several branches of the law. Not to mention as many as five different types and levels of courts, and a confusing array of processes, procedures, and practices. They often must prove or defend their cases without legal help.
In recent years, there have been several piecemeal changes to the law meant to help those affected by domestic violence: Alberta’s Protection Against Family Violence Act, harassment provisions of the Criminal Code, and early termination of lease provisions in Alberta’s Residential Tenancies Act. More recently, Alberta’s Clare’s Law allows access to a partner’s police records, and changes to parenting arrangements under the Divorce Act no doubt provide some relief for some people. But these changes have also introduced yet more confusion and complexity into the law.
Statutes make use of several terms: domestic violence, family violence, and intimate partner violence. More significantly, the behaviours they capture vary. Who they apply to also varies – sometimes dating relationships are included, but not always. And what is involved in accessing the remedies ranges from an immediate, even police-assisted, call to a justice of the peace, to months of complex legal proceedings. And when all is said and done, the results can be completely unsatisfactory, even dangerous.
Perhaps more damning, the laws and legal processes themselves can contribute to further victimization. Criminal charges generally relate to single incidents, not patterns of behaviour or combinations of behaviours that together constitute abuse. They tend to focus on the intent of the perpetrator, not on the impact on the complainant. Rules of evidence often prohibit the very evidence needed to make a claim. A little more contextual evidence would dispel the ‘he said, she said’ trope or the dismissive claim that both parties are equally to blame.
Rules of court can be used to complicate and intimidate. Costs, delays, and uncertainties add to the stress of accessing legal remedies and can be used strategically by abusers. Many of these and other problems with our legal system are well-documented.
If it’s that bad and has been for generations, why haven’t we fixed it?
At the most basic level, the answer is that no one is in charge. Responsibility for the legal system is split between the federal and provincial governments as well as among various independent actors and agencies. We have at least three legal systems in Canada: civil, criminal, and administrative. We deal with legal matters as discrete items viewed through the lens of a particular area of the law and addressed through the legal tools available through the relevant branch of the system. Lawyers are taught to compartmentalize the law according to the historical evolution of legal concepts, like contracts, torts, and crimes. They then specialize or limit their practice to types of cases that arise in areas of the law they can keep up with.
But, as we’ve seen, the legal matters that arise in the context of domestic violence are diverse. Dealing with these issues in isolation from each other not only puts onerous demands on the person addressing their violence but can lead to further abuse both by the original perpetrator and by the system itself.
If we are to identify how specific laws, principles, processes, procedures, and practices impact vulnerable individuals, as well as how parts of the system interact to produce unintended and undesirable consequences, we will need to take a holistic approach to systemic reform. We need to look at the entire legal ecosystem. What is actually going on in it? What do we wish was going on?
Only then can we imagine a system that provides the support that people experiencing domestic violence need and should be able to expect from something we might then call a justice system.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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