Mother and toddler

Presented by Pamela Cross, Luke’s Place Legal Director on October 13, 2020, 1:00 p.m.

Good afternoon. Thank you for this opportunity to appear before you to talk about Bill 207.

I do so on behalf of Luke’s Place Support and Resource Centre in Durham Region, where I am the Legal Director. We are named after Luke Schillings, a 3½ year old boy who was murdered by his father on his first unsupervised access visit, after his mother had sought, but was unsuccessful in obtaining, an order for supervised access.

We deliver direct family court support services to women who are leaving abusive relationships and work on the provincial and national levels, doing research, training and law reform advocacy on the issue of violence against women and the law. Naturally, family laws at both the federal and provincial levels have a huge impact on the women we serve as well as their children, so we have been involved in advocacy in this area for many years.

Our Brief, which we have submitted to the Committee for your consideration, despite the speed with which the Bill is moving ahead, has already been endorsed by 25 organizations, including two at the national level.

We congratulate the Attorney General for the many positive changes introduced in Bill 207. We are particularly pleased that the Bill proposes an extensive and inclusive definition of family violence, which will now appear directly in the best interests of the child test.

It is especially good to see that the definition uses the language of coercive and controlling behaviour and includes sexual, psychological and financial abuse as well as threats of or actual harm to animals among the types of behaviour that are considered to be family violence. It is important that the Bill notes that conduct need not constitute a criminal offence for it to be considered in a family law proceeding.

Despite these positive steps, we believe the Bill could go farther to address the needs of women and children leaving abusive relationships.

Violence within families is an endemic and pervasive social problem. Any changes to family laws must make this reality a high priority:

Our Brief makes a total of 23 recommendations. I am going to focus on just three now. In our Brief, we provide suggested wording to support each of our recommendations, so I refer you there for greater detail.

First, maximum contact: In both subsections 3 (c) and (6) of section 24, the best interests of the child test, the Bill proposes language that is very similar to what used to be called the “friendly parent rule” or “maximum contact principle.” Both provisions require the court to give weight to the concept that children should spend as much time with each parent as possible.

This places a woman fleeing an abusive relationship in a no-win situation. Does she indicate to the court that, because of safety concerns, she does not support the father spending extensive time with the children, thus potentially disadvantaging herself in the court proceeding, or does she tell the court that she is comfortable with the kids spending significant time with their dad, thus potentially risking both their and her safety and well-being?

These references to how time should be allocated are unnecessary and should be removed. If the best interests test is properly applied, parenting decisions will be made appropriately.

In many cases, that will mean the kids spend lots of time with both parents. In some cases, particularly those where there has been coercive controlling abuse, it will not be in the best interests of the children to spend a lot of time with the abuser.

Including two references to maximum contact within the best interests test will only serve as encouragement to abusive men to seek more time with their children than is appropriate. 

Second, the present language with respect to decision-making is somewhat vague and creates an opportunity for an abusive partner to manipulate the intention of the legislation in order to intimidate and control the child’s other parent. We recommend being explicit that day to day decision-making cannot conflict with decisions made by the parent with primary decision-making responsibility.

Section 28(6) could be amended to explicitly state that the non-primary decision-maker may, subject to compliance with best interests of the child principles, make day-to-day decisions affecting the child AND that such decisions shall not conflict with decisions made by the parent with primary decision-making responsibilities.

Third, we strongly recommend that Bill 207 include a duty for all legal advisors to screen for family violence at the beginning of every family law case. Not all women disclose the abuse to which they have been subjected; without a universal screening process, the lawyer is not necessarily aware of important abuse issues. When the lawyer is not aware of these issues, they may not take the proper steps to assist their client access appropriate services, safety issues may go unaddressed and, more generally, the lawyer’s advice may not speak to what the client most needs in terms of legal process and outcomes.

It was challenging to pull these three recommendations from all of those in our Brief, because we feel passionately that all of them are important. I am happy to answer questions about any of them, as time permits now or outside the hearing itself.

Let me conclude by saying that we support Bill 207, but strongly encourage the Committee to consider our proposed amendments. Implementing these recommendations will strengthen what is already a good Bill, leading to safer outcomes for women and children fleeing abuse.