The period of time when a woman decides to separate from her abusive partner is often the most dangerous, if not lethal. Family courts are often the first point of contact for women attempting to leave violent homes, yet few family law professionals are equipped to help them.
Deepa Mattoo, legal director at Toronto’s largest specialized clinic for women facing violence, is developing a new risk assessment tool that would allow family court staff to determine the level of danger in these women’s lives and aid them, quickly.
Funded by the Law Foundation of Ontario, the two-year project is in the planning stages in family courts throughout the Greater Toronto Area. The idea is to give mediators, lawyers and others standardized questionnaires so they can assess abused women’s situations, provide the right resources and help guide them and their children to safety.
Ms. Mattoo, who works with the Barbra Schlifer Commemorative Clinic, was motivated by the case of Dr. Mohammed Shamji, a Toronto surgeon charged with murdering his wife, Dr. Elana Fric-Shamji in 2016 after he was served with divorce papers. The sequence of events is all too common: About 67 per cent of domestic homicides in Ontario involved couples who had separated or were about to separate, according to data from the province’s chief coroner spanning from 2003 to 2016.
Today, Canadian family courts serving partners who are separating or seeking child custody still have no universal tools to screen for the presence of intimate partner violence or assess the immediate risks to those who disclose abuse. Although family lawyers said domestic violence factors into nearly a quarter of their cases, 79 per cent said they’d never or rarely relied on any standardized method to learn whether their client is being harmed this way, according to a 2016 survey from the Canadian Research Institute for Law and the Family. Experts say that currently, family lawyers' approaches to the issue are largely improvised, a point that troubles women’s advocates.
Ms. Mattoo’s project is not the only one addressing the problem. A report prepared last February for the Department of Justice detailed serious knowledge gaps about intimate partner violence within the family law system. A new screening tool based on the report will be available to family law practitioners across the country in 2020, and starting later this year, they will also have access to new online training on family violence, according to Ian McLeod, a spokesman for the department.
In Ontario, Ms. Mattoo’s project aims to give time-crunched legal practitioners better insights into domestic abuse. The print and online questionnaires she’s now working on will take into account physical, emotional and financial abuse, as well as coercion, stalking and cyber surveillance – behaviours that can signal more violence to come, according to researchers.
“What should we be doing right away for her? Is there a threat of homelessness if she leaves the house? If she goes back and he comes to know, is there going to be an escalation of violence in the house, or could it be lethal for her?” Ms. Mattoo said. “Women are still the experts, but asking them direct questions can give us a clearer context.”
The tool will be modelled after similar questionnaires already used in parts of the United States, Britain, New Zealand and Australia. Ms. Mattoo is also working on a federal proposal to adapt the tool nationally, beyond family court.
The pilot project comes as the federal government overhauls Canada’s Divorce Act, with legislation tabled last spring that more strongly considers family violence in decisions about future parenting arrangements. When family courts don’t properly screen for domestic abuse before granting equal parenting time, they can endanger children, according to Dr. Linda C. Neilson, a family law expert who works with the Women’s Legal Education & Action Fund (LEAF).
With no formal training on intimate partner violence, family lawyers too often rely on “gut instincts” or on voluntary disclosures of abuse from their clients, according to the 2018 report being used by the Department of Justice.
“Right now, there is a very ad hoc system,” said Pamela Cross, the report’s co-author and legal director at Luke’s Place Support and Resource Centre for Women in Toronto. “Few lawyers are doing screening. Others are using tools they’ve kind of created themselves or picked up from here or there, and hoping that they get it right. Clearly, that’s not enough.”
Ms. Cross warned about lawyers missing red flags and falling prey to stereotypes about who might or might not be a victim of domestic violence. She has been calling for a standardized screening tool that can be adapted for a diverse range of clients including Indigenous, newcomer, elderly and disabled women.
“Starting a family court case is one of those moments when everything can really spiral out of control very, very quickly,” Ms. Cross said. “At what is really their highest risk time in their entire relationship – after they’ve left it – women are left in an extremely vulnerable position."
Experts stress that women need to feel safe before opening up to a lawyer or mediator about what they’re experiencing at home. Victims are often ashamed or afraid of reprisals in speaking out; others still care about their abusive partners. What’s most urgent, Ms. Mattoo and Ms. Cross agreed, is that family law practitioners undergo mandatory training on trauma, building trust, reading body language and other factors. Strong training helps legal staff draw women out, so they can give them the legal remedies and community services they need.
An abuser’s behaviour can swing violently day to day, even hour to hour, so experts say it’s critical to follow up with women about planning their safety.
“The woman’s situation may change over the life of the case,” Ms. Cross said. “It is not enough to screen in the first appointment and think that is it.”