Thank you very much. I appreciate the opportunity to appear today.
I've been sitting here throughout the afternoon, noticing the improved tenor over the last time I was here before this committee 20 years ago, and I appreciate it very much.
I stated in my brief that we support the briefs of the National Association of Women and the Law and Luke's Place, as well as Believe, End Violence Against Women. The latter, in particular, was written by survivors of violence, and I think that it's an important perspective. There are members of Believe here in the room as well. It's a perspective that we didn't hear a lot from 20 years ago, and I think it's a critical one.
My interest in the subject matter is as the executive director of Harmony House, a second-stage shelter for women and children fleeing violence. I began in that role 25 years ago. Prior to that, I was a rural outreach worker. Most of my time was spent accompanying women to meetings with family lawyers, to family court, and to criminal court. For the past 11 years, I've also been working as a family lawyer, assisting women and children in escaping abusive situations. So, I have spent a long time observing family courts and how they function.
Recently, thanks to a grant from Status of Women Canada, I have had the opportunity to really dig into what happens to claims of violence against women in family courts. Today, I would like to share some of those observations with you, as I think they are really relevant to what's before you in terms of considerations of changes to the Divorce Act.
Women escaping violence continue to struggle to have courts understand the nature and consequences of the violence they experience, and this occurs for a number of reasons.
Linda Neilson looked into this for the Canadian Bar Association in 2000. What she found was that women's claims of violence were erased from the file, from the original lawyer-client interview to the drafting of the pleadings and all the way through to the final disposition of the file.
The other thing is that, in my own research, in 2015 a group of us looked at what training lawyers get on violence against women, and it's remarkably little. The high-water mark we found was four hours of training in one law school, and it wasn't mandatory.
Ontario's Domestic Violence Death Review Committee has been recommending mandatory education for lawyers in law schools and ongoing education through the law societies since 2011, and that has yet to come into play. Lawyers, of course, aren't trained and then become judges, so we have an education deficit that needs to be addressed.
What do we know about what happens to these cases in family court? In 2014, Statistics Canada had a hopeful statistic available, which said that fewer women and men reported having been physically and/or sexually abused by their partner in the preceding five years. It was down to 4% from 7% a decade earlier. However, the same study found that spousal violence was reported more frequently in relationships that had ended than in marriage or common-law relationships. The difference was 13% versus 2%, so that's quite a difference. Half of them reported that the violence had increased in severity after the relationship ended, which is important.
In terms of figuring out how many of these cases are actually coming in to family court, Bala et al. reported that roughly one quarter of all separations and divorces in Canada involve spousal violence issues. That's a significant portion.
Canada's Department of Justice has studied what happens to these cases as well. It did a court file review of final custody issue determinations between 2000 and 2005, and found that family violence was mentioned in 8% of divorce cases.
The Department of Justice also found, using 2009 data with respect to post-separation arrangements for children from violent relationships, that in 29% of the cases the children lived primarily with the respondent who had experienced the violence; in 25%, the kids lived principally with the person who had perpetrated the violence; and in 20%, the kids spent approximately equal time in both households. So, these kids are still potentially in these situations post-separation.
As the committee knows, and as I outlined in my brief, Ontario's Children's Law Reform Act was amended in 2006 to make consideration of abuse mandatory in custody and access determinations. In 2010, Ontario implemented inclusion of a mandatory affidavit disclosing any abuse in every custody and access case.
In my brief, I shared the preliminary results of the research of the project that I am working on, made possible through Status of Women. It won't be a surprise to the committee that the vast majority of family law cases are resolved without trial, which means that their outcomes are not reported anywhere. We took two random, representative samples of family law files in Ottawa in 2010 and 2016, and looked to see what occurred in them. It's interesting that between 2010 and 2016, the total number of family law cases started went down by 12%, which I think is probably a reflection of the cost and accessibility of family court for many families. It's too early to say that, but that's a likely theory.
The other thing that is striking about our findings is that the violence against women does not appear in these court files at the prevalence rates it ought to. We found that in the first sample it showed up 15.5% of the time, and in the second set it showed up 16.2% of the time. The difference between those two sets is that the students who were looking at the files in the second set were bilingual, so the difference might be that they were able to read the French files.
The other interesting thing we found was the contrast in custody claims by gender. Most women claim full custody, whereas the most common type of custody claim made by men was no claim at all, followed by joint custody. Sole custody was the third most common claim they made.
The other interesting and disappointing—but not surprising—finding was how little impact the disclosure of violence had on the pleadings, on the outcomes of the cases. Where women sought full custody and disclosed the abuse in their pleadings, they were granted full custody 45% of the time. Where they sought full custody and disclosed no violence, they were granted full custody 44% of the time.
The other thing we're doing in the project is reviewing case law and comparing custody outcomes where violence was claimed under the Divorce Act, compared to Ontario's Children's Law Reform Act. Under the latter, it's a mandatory consideration. I referenced in my brief what we found.
After reading so much case law, one of the things that we see is the assumptions that appear over and over again in family law cases. One continual assumption that could be addressed in the preamble to the Divorce Act, which has been endorsed by other groups, is that violence is always in the past. We know from the evidence that this is not necessarily true. The other assumption that you see often is who abused women are or can't be: If you're a professional or you're educated or you're assertive, you can't be an abused woman. That is simply not true. That's borne out by decades of research.
In closing, I would point out that as the committee knows, the UN Special Rapporteur on Violence against Women made her first visit to Canada this fall. She heard from women about their experiences in family court and will be reporting on her visit in the coming year. I urge you to get ahead of that report and be able to say that you've addressed the issue of violence against women by adopting a preamble that provides the much-needed guidance to courts on the gendered nature of violence in intimate relationships.
I would suggest to you that one of the reasons we have not made greater progress in the 40 to 50 years that women have been disclosing violence, and in the 20 years since we last considered this issue in the Divorce Act, is that we tend to think of violence against women as inevitable, and as something that can't change. I would urge you to reframe your thinking about this, using examples we've seen in recent times.
For example, with respect to smoking or drinking and driving, we've created huge social change by using a combination of legislation and education to alter ideas and behaviours. I would urge you to take the same approach with respect to the Divorce Act. It's clear that the courts need assistance to understand the gendered nature of violence in intimate relationships, the role that violence plays in impeding the realization of women's rights to equality and to life, liberty and security of the person, and the ongoing and well-documented harms to children through exposure to abuse, which too often continues and escalates post-separation.
As I make this presentation, I am mindful of the fact that we are approaching December 6, Canada's National Day of Remembrance and Action on Violence against Women. I'm also thinking of certain people, whom I will list for you.
Margret and Wilson Kasonde were shot and killed by their father on an access visit in Ottawa on May 25, 1995. Margaret was eight, and Wilson was 10.
Since then, Alexis Currie, two, was stabbed to death on an access visit in Scarborough by her father, in March 2002.
There is Francine Mailly and her children: Jessica, 12; Brandon, nine; and Kevin, six. The children were shot to death on an access visit; their mother was killed when she came to pick them up.
Olivier and Anne-Sophie were stabbed to death by their cardiologist father in Montreal in February 2009. He was originally found not criminally responsible but on appeal was found guilty of second-degree murder.
Then there are Chloe and Aubrey, ages six and four, who were found murdered on Christmas Day in 2017 in Victoria, B.C., while on an access visit with their father.
Margret and Wilson were the only ones killed prior to the last hearings on this issue; all the rest have been murdered since those last hearings. I urge you to take that into account in whatever recommendations you adopt.
Those are my recommendations. Thank you.