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Jennifer Koshan

Judges lack awareness of increased risks of domestic violence amid pandemic: study

Thursday, November 12, 2020 @ 4:10 PM | By Luis Millán

Canadian judges have demonstrated very little awareness over the heightened risks of domestic violence during the COVID-19 pandemic, a situation that should prompt judges to attend comprehensive legal training over what the United Nations has described as the “shadow pandemic,” according to human rights and legal aid experts.

With several provinces again ramping up efforts to thwart the spread of the debilitating virus, helplines for women facing violence at home are concerned that there will be an uptick in cases at a time when providing services to those in need is already constrained, added the experts. Research has shown that social isolation, loss of employment and reduced income are all factors known to increase the risk of domestic violence — conditions that have been “heightened” in recent months, according to Statistics Canada. During the first four months of the COVID-19 pandemic, 17 Canadian police services reported a 16 per cent decrease in selected criminal incidents but a 12 per cent increase in the number of calls to attend “disturbances” compared with the same period the year before, added the recent Stats Canada report. Calls to police classified as domestic disturbances can involve anything from a verbal quarrel to reports of violence at a residence.

Jennifer Koshan, University of Calgary law professor

Court directives across the country have prioritized so-called urgent cases, pointed out a study that offers a preliminary assessment on whether the Canadian courts weighed the impacts of the COVID-19 pandemic while presiding over domestic violence cases. This was done often explicitly through various kinds of protective orders for victims of domestic violence, and in some jurisdictions changes to legal aid eligibility and services were introduced to make it easier to gain access to legal advice and representation, notes the study titled “COVID-19, the Shadow Pandemic, and Access to Justice for survivors of Domestic Violence.

However the study concludes, after examining 67 reported decisions issued by provincial, territorial and superior courts in all Canadian jurisdictions after the pandemic was declared in mid-March, that the cases overall reveal “very little awareness” of the heightened risks for “survivors” due to COVID-19, a disappointing but not a surprising outcome, said University of Calgary law professor Jennifer Koshan, who conducted the study along with Janet Mosher at Osgoode Hall Law School of York University and Wanda Wiegers of the University of Saskatchewan.

“What we’re seeing in these cases long predated the pandemic, and some of the ways in which the legal system minimizes domestic violence in the family law realm,” said Koshan, who was a Crown counsel in the Northwest Territories and worked as the legal director of the B.C. branch of the non-profit equality rights organization Women’s Legal Education and Action Fund (LEAF). “It really does go beyond what is happening in individual cases with individual lawyers and individual judges. It’s much more about the systemic failings of our current legal system to respond to the needs of survivors of violence.”

Justine Fortin, Juripop

That is a viewpoint shared by Justine Fortin, a lawyer and project manager with Juripop, a Montreal non-profit organization that offers accessible legal services. In March 2020, with the help of a $2.6-million contribution by the Quebec government, Juripop launched three pilot projects: a legal hotline to help victims of sexual violence, another legal hotline to assist victims of domestic violence and the services of a staff family lawyer who is handling 25 domestic violence cases.

“From a legal perspective, the pandemic has put domestic violence in the spotlight, highlighted that women have little access to services, and that there is little recognition by the courts (to domestic violence) in a context where everyone is confined in the same home,” remarked Fortin.

The study points out that in most of the family law cases, which comprised two-thirds of the study’s sample, two major issues generally had to be determined — whether an additional threshold requirement of urgency had been met for the hearing to proceed, and if so, what the substantive outcome should be on its merits. In dealing with the issues, the courts generally relied on two trends that have dominated family law jurisprudence since the 1980s. One is “settlement mission” which seeks to encourage or pressure parties to resolve conflicts outside of trials, and the other referred to as “maximum contact,” which fosters the notion that children and both parents should maintain relationships.

“In the COVID-19 context, the problem with the idea of the settlement mission, combined with the problem that only urgent cases are being heard by the court, is that parties are really being directed to try to resolve things between themselves before they show up in court,” observed Koshan. “And that may be very difficult for someone who is a victim of violence to do because there could be a huge power imbalance in the relationship. And so directing the parties to try to settle things out of court because of the exigencies of the COVID-19 pandemic is just really sort of feeding into the pre-existing power dynamics.”

The problem with urgency motions is that the courts have generally interpreted court directives rather narrowly, said Koshan. In fact, the study suggests that the strict and narrow definition of urgency may have led to dissuade lawyers and self-represented litigants from pursuing this avenue. In a leading case which involved allegations by the wife of surveillance and financial abuse by her husband, Ontario Superior Court Justice Marvin Kurz in Thomas v. Wohleber 2020 ONSC 1965 held that the urgency requirement must be enforced with rigour and “scrupulousness.” In order for a matter to be determined as urgent, concerns must require an “immediate” resolution, must be “serious” in that it significantly affects the health or safety or economic well-being of the parties or their children, must be “definite and material,” and must be “particularized in evidence.”

Koshan argues that while such a high threshold may capture “discrete and serious” instances of financial and physical abuse, it fails to take into account a host of strategies and behavioural patterns used by abusers that can over a long period work to maintain coercive control. The study points out there is increasing recognition that domestic violence is characterized by coercive control.

On top of that, when judges presided over urgency motions, they placed significant weight on pre-existing parenting arrangements in order to maintain contact between the child and both parents, notes the study. In the cases the law professors reviewed, applications for access or for the return of children that were found to be urgent usually took into account the well-being of the child as opposed to their safety or their mother’s safety. Moreover, court directives have imposed onerously complex procedural requirements to establish urgency motions, which may explain why such requests in cases involving domestic violence were lower than expected in Ontario.

“When there was physical violence, we have had no problem going to court,” said Fortin. “But in cases involving coercive control or psychological violence where the children’s situation was relatively safe, it was not treated with the same degree of urgency.”

On the merits of applications, it has always been tough to prove domestic violence, particularly if the allegations are contested or if there is absence of criminal charges, and more so during the COVID-19 pandemic when access to various sources of evidence that might provide verification is extremely limited, said the study.