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| Pamela Cross |
According to Ontario’s Domestic Violence Death Review Committee, a woman is at the highest risk of being killed by her former partner beginning when the partner knows or believes he knows that she is planning to leave. That risk continues through at least the next several months; the very time when many are turning to family law to resolve issues like post-separation arrangements for the children as well as financial and property matters.
Intimate partner abuse is rooted in the abuser’s need for power and control, and that need does not disappear simply because the relationship has ended. It continues, often escalating, because the abuser sees the woman’s decision to leave as an act of defiance of his power and control.
He seeks to retaliate for real or perceived wrongs, including the act of her leaving; revealing their secret by reporting the abuse to someone outside the family; taking the children, possessions or money; really, for anything at all. He needs to re-establish the power and control he feels she has taken from him by leaving. And he wants to reconcile: many women will return to an abuser if the violence escalates, because this allows them to better predict and control the violence, thus reducing the risk of serious harm.
Abuse looks different after separation than it did during the relationship. Threats — to harm the partner and/or children, to take the children and not return them, to report the partner to the police or child protection authorities for no valid reason, to damage or destroy property — become more common. The abuse may move into the woman’s workplace in an attempt by the abuser to threaten her employment, hoping she might return to him if she is not able to support herself financially.
Many abusers use the children as pawns during this separation period, involving them inappropriately in adult issues, bribing and/or threatening them to try to win their favour or using them to spy on their mother. Stalking increases after separation and is made easier by technology such as GPS, spyware, smart home systems, nanny cams and drones.
The family court process itself can, unwittingly, be complicit with an abuser who engages in legal bullying. When an abuser represents himself not out of necessity but so he can have more direct contact with his former partner, brings repeated frivolous motions, seeks multiple adjournments, fails to file documents on time, files incomplete or inaccurate documents or changes lawyers, the court process is slowed down, the woman’s resources — financial and emotional — are depleted, and she is at jeopardy of agreeing to poor outcomes just to bring the proceedings to an end or even of returning to the abuser.
All of these tactics of post-separation abuse combine to place women at a severe disadvantage in the family court process. The fear many women must continue to live with on a daily basis can lead to trauma, which creates further challenges.
The woman may have difficulty concentrating on her case; listening to and retaining the information and advice her lawyer is providing; accepting strategies that are presented to her. She may appear disengaged, hard to get along with or unreasonable. She may make decisions that seem counterproductive to her best interests, simply because she cannot bear for the case to continue on and on.
Her former partner, on the other hand, may present himself as charming and gracious to those he encounters, making it difficult for outsiders to understand the true dynamic at play.
It’s important for family law lawyers to understand the reality and dynamics of post-separation abuse in order to take steps to keep clients in this situation — and their children — as safe as possible.
Here is just one example: whether or not a new client has separated from her abusive partner, the lawyer should carefully canvass appropriate ways to communicate with her. Does the former partner know the password to the woman’s e-mail account? Is it possible he has installed spyware on her cell phone, tablet or laptop? Does he have access to her voice mail?
When everyone in the family court system, including lawyers, is mindful of the likely presence of post-separation abuse, women are better able to engage effectively in the court process and, as a result, to emerge from it with appropriate orders.
Pamela Cross is a feminist lawyer who works on issues related to violence against women and the law. She is the 2019 recipient of the Law Foundation of Ontario Guthrie Award for her work increasing women’s access to justice.
Photo credit / fizkes ISTOCKPHOTO.COM
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