One death is one too many: Child custody, access and domestic violence homicides

adult hand passing a flower to a child

Twenty-three years ago, three-and-a-half-year-old Luke was killed by his father on his first unsupervised access visit after Luke’s mother had tried to get a family court order for supervised access, because of her concerns for her son’s safety. In the intervening 23 years, far too many children have been killed by their fathers: according to Ontario’s Domestic Violence Death Review Committee, children made up 10% of the 453 domestic violence homicides in this province between 2002 and 2014. That’s more than 45 dead children, most often killed by their father.

It goes on and on

Four-year-old Keira Kagan appears to be the most recent victim. She and her father were found dead at the foot of a cliff near Milton on February 9th, their injuries consistent with a fall.  Keira’s father and mother had been embroiled in a long-running custody case and, most importantly, were scheduled to be in court on February 20th for a hearing in which her father’s time with her may have been reduced.

This tragic tale is nothing if not classic. In the initial custody case, the family court was provided with ample evidence of Robin Brown’s abusive treatment of his wife, Jennifer Kagan, including an incident in which he tried to force a dead mouse into her mouth during an argument. Brown was admonished by the court for his repeated lying, forging of evidence and attempts to defraud the court. His treatment of his former wife and others was described as bullying and aggressive and, in official court records, he was told he had a “distinct propensity for lying.” None of this, however, amounted to evidence that the judge at that time felt should affect the arrangements for how much time Keira would spend with her father.

Twelve days before Keira’s death, her mother was back in family court, bringing an ex parte motion to limit Brown’s access because of his increasingly erratic behaviour and his attempts to manipulate Keira into lying. Her lawyer, Lawrence Liquornik, said:

“We have a father who appears to be escalating in his abusive behaviour towards his daughter . . . [He is] out of control.”

Ex parte motions are intended to address extremely urgent situations and, unlike in usual motions, the court can make a short-term order based on hearing from only one of the parties. The judge on January 28th declined to make such an order, saying he wanted to hear from Brown before making a decision. The case was to return to court on February 20th.

The challenges

Family court is no haven for women with children who are fleeing abuse. Court proceedings can drag on for so long that women settle for outcomes that leave them and their kids exposed to ongoing abuse because they just need the case to be over. Lack of legal aid assistance has forced many women to handle their cases without legal representation. Threats, intimidating behaviours, physical violence: all escalate before critical court dates when abusers fear they may lose some of their power and control.

Too often, as in the Kagan/Brown case, cases of serious family violence are mislabelled “high-conflict.” This creates an incorrect impression that the two parties are engaged in a more or less equal back and forth of bad behaviour. As a result, the significant power imbalance is not identified, significant safety issues are missed, and women and children are put at risk of ongoing harm.

Perhaps most of all, many lawyers, mediators, clerks and judges are not well enough informed about family violence: its dynamics, the fact that it continues post-separation, the impact it has on the safety of children as well as their mothers.

This is not due to is a lack of evidence: the Canadian Domestic Violence Homicide Prevention Initiative’s 2017 Brief “Children and Domestic Homicide: Understanding the Risks” notes that living with domestic violence is a “significant” risk factor for child lethality.

There are solutions

Peter Jaffe, Academic Director of the Centre for Research and Education on Violence Against Women and Children at Western University recently noted:

“The answers are complex, but one death is one too many and there have to be lessons learned.”

Mandatory universal family violence screening by all family law practitioners should be implemented immediately. Research conducted by Luke’s Place for the federal Department of Justice in 2018 established that when such screening is conducted, more accurate information about family violence is gathered and legal outcomes are safer and more appropriate.

Coupled with screening, all those in the family court system who support families where family violence has been identified should be trained to work with a validated risk assessment and management tool.

Mandatory education about family violence for all players up to and including judges in the family court system is another important step. We need a bill to make this education for judges mandatory, just as Bill C-5, currently before the federal government, will make sexual assault education mandatory for newly appointed judges.

There is a lot we need to do. Let’s start by actually listening with an open mind when women tell the courts that they have been abused, rather than assuming they are fabricating untrue stories to try to get some kind of advantage in the legal proceedings. After all, the research shows that denials, which the courts and many members of the public seem to like to believe, are significantly more likely to be false than the assertions of abuse.

This article first appeared on Pamela Cross’ website.