6. Provide fair access to justice for women.

Justice. The Oxford dictionary defines justice as:

1. just behaviour or treatment
2. the quality of being fair and reasonable
3. administration of law in a fair and reasonable way.(1)

Most of us don’t need a dictionary to tell us what justice is. We can feel it. We call our criminal law system the ‘criminal justice system’ though very few survivors of male violence would say ‘justice’ describes their experiences within it. Many women have taken to calling it the “criminal (in)justice system.”

Their experiences in other legal processes: immigration, family law and other civil law (e.g. landlord and tenant or poverty law, labour and human rights law) are not that much different.

It isn’t possible to cover in detail all of these systems and legal processes in this small space. But a look at the two largest legal systems—criminal and family law—shows the kind of hurdles women face when they seek justice.

Criminal Law

As equality-seeking anti-violence advocates we think a lot about the concept of justice. We demand criminal sanctions for men who use violence to control their partners.  We want consequences for criminal male violence against women and children as an expression of society’s denunciation of it, and in the hope it may prevent further harm. But we also want fairness and work against over-representation of Aboriginal men, men of colour and poor men in jails.

Justice should be the result of a considered response to a problem that examines the realities of all concerned and devises a measured, effective response that addresses the needs of all. Access to justice means that you have a right to have your claims heard, understood and fairly decided. Without real access to justice, women cannot live free of violence and abuse.

It is not surprising that legal systems created by men in power have been developed to respond to the concerns, problems and realities of men, particularly white, middle or upper class men. Now, it’s time for change.

Access to criminal law justice means:

• Everyone, no matter what their language, mode of communication literacy level would understand what their rights are and have those rights fully respected.

• Disability would not be a barrier to any justice or judicial process. Access would be more than a wheelchair ramp. It would include full understanding of disability issues and elimination of myths about women with disabilities and Deaf women.

• Aboriginal women would enjoy full rights to property and could safely remain in their home communities after leaving a violent relationship, if that is what they choose to do.

• Women of colour and immigrant women would not fear racist policing or biased prosecution of their cases, or deportation by the immigration system.

• There would not be one justice for the poor and another for the rich.

• Women would have information, independent community-based women’s advocacy and representation in their language of comfort throughout the process. Francophone women would be able to access these services in French.

• Women could call police for help and have police investigate thoroughly, and respond appropriately by charging the abuser, not the victim.

• Lawyers would listen carefully, ask appropriate questions, ensure they understand the situation and put the real story of violence against women before judges, who in turn would listen carefully and make decisions that fully account for the safety and equality rights of women and children as well as the rights of the accused.

• Crown attorneys and judges would thoroughly examine evidence before them and ask about the context to ensure all charges are appropriate in the circumstances.

• Justices of the peace, crown attorneys, lawyers, and legal aid administrators would really understand violence against women as a violation of the Charter of Rights and Freedoms, Section 7 and 15, and enforce these rights in addition to protecting the rights of the accused.

• Women trafficked into prostitution would not be held accountable for their victimization. Women who are raped would not be put on trial.

For more on issues in criminal law, see Steps 7: Hold men accountable for their actions and 8: Stop criminalizing and psychiatrizing women.

Access to family law justice means

• Adequate family law legal aid would be universally available so poor and working class women have equal access to the legal system.

• Children would be protected from violence against their mothers and the poverty resulting from violence. Custody, access and child support decisions would be made with the full knowledge of the link between woman abuse, poverty, racism and oppression, and the best interests of children.

• Supervised access would be universally available so women would not fear sending their children on access visits. Women and their children would not be put in danger doing so.

• Grassroots feminist anti-violence work that started it all would finally be given the recognition and respect it deserves and would be adequately funded to provide independent advocates to women within the family law system.

Access to justice in other civil law or legislated processes would mean:

• Women with immigration concerns wouldn’t be afraid to call police in case they are then investigated by Immigration officials.

• Women’s children would not be at risk of apprehension or supervision orders because abusive men have exposed their children to violence.

• Women would not be charged with welfare “crimes” as a result of punitive and suspicious social assistance practices.

• Women forced to work in low-paid, temp contract or unsafe working conditions would be able to rely on legislated labour processes to fight for their rights.

• Human rights complaints would not take years to resolve.

• Although all of the above affect women who experience violence, the family law system is often the most destructive.

Family law and the Province of Ontario

In 2006, the Ontario Legislature passed a law requiring judges to consider “domestic violence” in custody and access decisions(2) upon separation and for common law couples. Federal divorce law still does not make this mandatory. This was a great victory for women experiencing violence and a very positive action by the Ontario government.

Women from the No Religious Arbitration Coalition were also very successful in getting the Province of Ontario to reject recognition of family law religious arbitration decisions as legally binding under provincial law.

But there is much more work to do.

Even where clearly present, violence against women is not consistently identified by lawyers, included in case materials and considered in court orders. Even when violence against women is considered there are few realistic options for abused women in most communities.

Here are some serious barriers to justice for women in family law:

• Aboriginal women living on reserve still have no property rights if they wish to separate from abusive partners. How can this happen?Aboriginal peoples come under the sphere of the federal government under section 91 (24) of the Canadian constitution, while property issues fall under provincial jurisdiction under section 92 (13) of the Constitution. Therefore provincial property laws do not apply to Aboriginal people on reserve.(3)So if an Aboriginal woman wishes to leave a violent relationship on reserve, she has no legal means to claim her share of the family property or to seek exclusive possession of the matrimonial home.(4) Aboriginal women then have to choose between staying in their communities or leaving to find housing. Leaving often means leaving with nothing regardless of what the couple owns.  Although federal action is needed (and promised) to change the situation, the Province of Ontario also has a role to play.

• Judges rarely order sole custody to a mother without access to the father. Women in abusive situations are then tied to the abuser and he can and does use child access as a weapon of control. Most abusive fathers are granted unsupervised access to their children and women and children’s legal right to safety is often trumped by so-called “fathers’ rights” which do not exist under law.

• There are few facilities for adequate supervised access. Women must often turn to friends and family to help. Because resources aren’t provided, there are few options for safe access exchanges or adequate, informed supervision of access visits at times ordered by court.

• Supervised access is not a permanent solution, so even where ordered, it is seen by courts as a temporary measure on the way to unsupervised access.(5)

• Several important post-separation risks to children must be, but are often not considered in custody and access determinations:

1. Patterns of woman abuse indicate poor parenting skill and ability.
2. A large percentage of men who physically abuse their partners will also physically abuse their children and rates increase with severity and frequency of the partner abuse pattern. Fathers who are suicidal or make death threats against former partners are at risk for killing the children.
3. Exposure to woman abuse harms children. Continued exposure through access exchanges continues this harm.  One of the most critical measures of the well-being of children, along with poverty, is the well-being of their mothers.
4. Post-separation harassment and conflict and high rates of threatened and actual child abduction in abusive relationships pose ongoing risks to children.(6)
5. Restraining orders are not taken seriously or properly enforced. Women and/or children have been murdered after obtaining this court order to keep the abuser away. Breaches of restraining orders are not taken seriously.

Despite all of these facts, family courts are more and more focussed on ordering “joint custody”.  What’s wrong with that?

In 2002, for the first time, mothers were given sole custody of less than half of children subject to a court order at divorce. Joint custody orders were given for almost 42% of cases. According to the National Longitudinal Study on Children and Youth, however, the vast majority of children live solely with their mothers at separation, regardless of the court order.  Joint custody most often means joint control, not joint care giving. Fathers may also fight for joint custody to reach the so-called “40% rule” so they will not have to pay as much child support.

Only 10-20% of divorces are considered “high conflict” (7) and even among these less than 3% end up in trial.(8) Many of the cases that do go to trial are those where violence is present, whether or not it is recognized. So it is critical that all players in the legal system understand violence against women and its impact on children and take those realities into account.  Although most separations and divorces are negotiated without going to court, this doesn’t mean that no abuse exists within these cases.

Access to Legal Aid

For women leaving abusive relationships custody of and access to children, division of property, child and spousal support, exclusive possession of the matrimonial home, and restraining orders are the most important family law issues. Many women need legal aid funding but either can’t get it or can’t get it for all of their issues.

• 75% of legal aid in Ontario goes to criminal and immigration law and only 25% goes to family law. 75% of family law legal aid applications are women; the majority of criminal law legal aid applications are from men.

• The tariff rate (pay rate) for legal aid lawyers is much lower than lawyers can earn working for paying clients, so many lawyers will not take legal aid clients.

• There are limits on the number of hours a lawyer will be paid for each issue on a legal aid certificate, and lawyers have to file paperwork and require approval for any additional work they do. Many women have difficulty finding a lawyer who will accept a case for legal aid, especially in rural and Northern communities. Many women are now forced to represent themselves or use “duty counsel” who can only help for certain issues at the court house.

• Legal Aid Ontario has reported that a person making as little as $13,000 a year may not be eligible for Legal Aid.  There has been no real increase in legal aid funding in Ontario in the last 10 years.

• The number of people refused legal aid services in Ontario has increased by 42% over the past two years alone.

Women get worn down by the way abusers use the system to delay and complicate cases and by the poverty that that drawn out cases create for them. Sometimes women are forced to settle or drop more costly claims because Legal Aid won’t pay or because the hours on their certificate run out.

The Province of Ontario has not yet adequately increased funding or eased tight eligibility rules on Legal Aid to address the crisis.

As the legal system struggles to meet greater demands with fewer resources, the pressure to mediate increases, even though it is widely recognized that mediation is not recommended in abusive relationships. Pressure to process cases quickly, combined with greater use of mediation means that women are pressured to mediate or arbitrate with abusers, a process that often places them at greater risk for ongoing abuse and for accepting settlements that are not fair or in their, or their children’s, best interests.

Cultural, Language and Accessibility Barriers

For recently arrived immigrant and refugee women, women with disabilities and Deaf women, Aboriginal women, lesbians and Trans women, women in conflict with the law, Francophone women and many other women, family law creates additional barriers that increase the impacts of violence and injustice on them and their children:

• Language and cultural interpreters, including sign language interpreters, assist in bridging cultural and accessibility gaps, but they are not universally available and offered to women in legal systems.

• Legal systems have little proactive plan to ensure that personnel in their own systems represent the diversity of women in Ontario.

• Many communities of women have no access to legal information in clear language or language of their choice.

• Although the Province of Ontario has funded training for Legal Aid office staff and judges there are many players in the legal systems (including judges and lawyers) for whom training on violence against women is offered but not required.   Assessors who make recommendations on the ‘best interests of the child’ may have little to no understanding of the dynamics of woman abuse.

• Legal systems (both criminal and family) lack competency to understand that women experience differing levels of ‘justice’ depending on race, sexual or gender identity, culture, language, age or ability.

• Women in Northern and rural communities have reduced access to lawyers, courts and supports within legal systems.

Autonomous, Community-based Women’s Advocates

Independent women’s advocates–shelter workers, sexual assault and rape crisis advocates, women’s centres, Aboriginal legal workers, immigrant women’s advocates—help women understand their rights, how the systems work and how to fight for justice. Independent women’s advocates also identify systemic problems and solutions. Because they are not employed or controlled as employees of systems, they and are free to first be accountable to the woman and her children and to push for changes for all women.

Twenty years ago, shelter advocates urged the Province to make legal support workers a “core service” of shelters with permanent annual funding. This was rejected.

Two major inquests into the murder-suicides of women in Ontario recommended that the Province fund a province-wide system of independent women’s advocates to work for women engaged with legal systems. The Province funded one program at the Barbra Schlifer Clinic in Toronto. It also introduced a “transitional housing and support worker” program to fund mostly shelter workers to assist women within community system, primarily in finding housing. Some shelters have been able to fundraise to offer this service, but they are in the minority.

Some resources:

Legal Aid Ontario Business Plan: 2006/2007. Legal Aid Ontario.
Custody, Access and Child Support: Findings from the National Longitudinal Study on Children and Youth. Nicole Marcil-Gratton and Céline Le Bourdais, 1999. Department of Justice Canada.
Child Custody and Access: The Experiences of Abused Immigrant And Refugee Women. Beryl Tsang, Springtide Resources, 2001.

The Daily. Divorces. Tuesday, May 4, 2004. Statistics Canada.
Arbitration, Religion and Family Law: Private Justice on the Backs of Women, National Association of Women and the Law, 2005.
Resources on Matrimonial Property Rights, Native Women’s Association of Canada (NWAC), 2006

Additional resources:

Maria Crawford & Rosemary Gartner, Woman Killing: Intimate Femicide in Ontario 1974-1990 (Women We Honour Action Committee, 1992) at 29.

Sandra A. Goundry, Final Report on Court-Related Harassment and Family Law “Justice” (Vancouver: Vancouver Association of Women and the Law, 1998) at 12.

FREDA Centre for Research on Violence Against Women and Children, News Release. “Myths and Realities of Custody and Access” (19 May 1998).

Report on the Inquest into the Deaths of Arlene May and Randy Iles (Toronto: Office of the Chief Coroner of Ontario, 1999) and Hadley Inquest Jury Recommendations (20 February 2002) online: Ontario Women’s Justice Network.

Canada, Parliament, “Report of the Sub-Committee on the Status of Women” by Barbara Greene in The War Against Women, in Sessional Papers, No. 3 (1991) at 1.

Canada, Setting the Stage for the Next Century: The Federal Plan for Gender Equality (Ottawa: Status of Women, 1995).

Canada, Final Report The Canadian Panel on Violence Against Women, Changing the Landscape: Ending Violence~Achieving Equality (Ottawa: Minister of Supply and Services, 1993).

Statistics Canada, Violence Against Women Survey, 1993.

Statistics Canada, Family Violence in Canada: A Statistical Profile by Catherine Trainor & Karen Mihorean, eds. (Ottawa: Minister of Industry, 2001) at 26.

Endnotes:

1. Oxford Paperback Dictionary Thesaurus, Oxford University Press, New York, 2001.
2. See section 24(4) Children’s Law Reform Act, R.S.O. 1990, c. C. 12.
3. The Native Women’s Association of Canada is in the process of developing a position based on input of Aboriginal women they have consulted with.
4. On reserves housing is a communal asset. Entitlement to housing is determined by band council. Therefore in communities supportive to abused women council can decide that the woman is entitled to retain possession of the home. This can be problematic for women where council is not supportive, or when abusers are connected with or related to members of council.
5. See M.(B.P.) v. M. (B.L.D.E.) (1992), 42 R.F.L. (3d) (Ont. C.A.).
6. Ibid.
7. For the Sake of the Children, Report of the Special Joint Committee on Child Custody and Access, Public Works and Government Services publishing, Ottawa, December 1998.
8. Nicholas Bala “A Report from Canada’s ‘Gender War Zone’: Reforming the Child-Related Provisions of the Divorce Act” (Paper presented at the Education Program of the Office of the Children’s Lawyer, June 1999).