Category Archives: Family

COVID-19, Domestic Violence, and Technology-Facilitated Abuse

By: Jennifer Koshan, Janet Mosher, and Wanda Wiegers

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On 27 May 2020, UN Women launched the “shadow pandemic” public awareness campaign, drawing attention to the global spike in domestic violence linked to COVID-19. Phumzile Mlambo-Ngcuka, Executive Director of UN Women, describes the idea of a shadow pandemic as follows: “Even before the [COVID-19] pandemic, violence against women was one of the most widespread violations of human rights. Since lockdown restrictions, domestic violence has multiplied, spreading across the world in a shadow pandemic.”

We are in the midst of a multi-year research project on domestic violence and access to justice across Canada, but decided to shift our attention this spring/summer to the legal and policy responses to domestic violence during the COVID-19 pandemic. One aspect of our research examines the responses of courts, including what sorts of matters they consider “urgent” enough to hear during the pandemic, and how urgent cases involving domestic violence are being dealt with on the merits. We found 67 relevant cases reported on Can LII between March 16 and June 1, 2020, with relevance meaning that the cases deal with domestic violence issues that were related to the pandemic in some way. These cases span the areas of family, child protection, criminal, and protection order law. One cross-cutting theme in the case law is surveillance and technology-facilitated abuse, which is the subject of this post. We also provide some comments on access to justice issues raised by our case law sample.

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A Family Lawyer’s Role is (Not) to Minimize Conflict

By: Deanne Sowter

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Do family law lawyers have an obligation to minimize conflict? It seems obvious that given the stakes involved in family law matters, especially where there is family violence or children, that a lawyer’s role ought to include minimizing conflict; however, that idea is not as straightforward as it sounds. A family lawyer does have an obligation to advise her client on the impact of actions that inflate conflict; but a lawyer’s role properly understood, does not include an objective of minimizing conflict. This may seem like splitting hairs, but it is an important distinction.

Minimizing Conflict

The BC Family Law Act, SBC 2011, c 25 (BC FLA), Rules of Court, and guidance from the BC Law Society all aim to ensure family law proceedings minimize conflict. The BC FLA requires a court to “ensure that a proceeding under this Act is conducted in a manner that strives to minimize conflict, and if appropriate, promote cooperation, by the parties” (s 199(1)(b)(i)). An object of the BC Supreme Court Family Rules, BC Reg 169/2009 is to “help parties resolve the legal issues … in a way that will minimize conflict and promote cooperation between the parties” (R 1-3(1)(a)(ii)).

As an aside, the more time I spend with the BC FLA, the more I admire it. It really is a remarkable piece of legislation in the way it tries to guide families towards a less conflictual resolution to their dispute. The Act encourages parties to make their own decisions, and it aims for them to do so in a way that is less conflictual, responsive to family violence, and mindful of children’s interests. That said, Susan Boyd and Ruben Lindy found that BC courts are still relying on “problematic assumptions about family violence”, indicating that judicial and legal education is still falling short of effectively training the legal profession about family violence (see here at 45).

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Domestic Violence and Legal Responses to COVID-19 in Alberta

By: Jennifer Koshan

PDF Version: Domestic Violence and Legal Responses to COVID-19 in Alberta

Matters Commented On: Ministerial Order No 2020-011 (Community and Social Services); Court of Queen’s Bench Of Alberta, Amended Master Order #2 Relating to Court’s Response to the COVID-19 Virus; Court of Queen’s Bench Of Alberta, Pandemic Operations/ FAQ; The Provincial Court of Alberta, COVID-19 Pandemic Planning for the Scheduling of Matters

Many commentators have remarked on how COVID-19 and government orders to self-isolate will lead to increased rates of domestic violence and adversely impact victims of domestic violence seeking protection. Last weekend, for example, UN Secretary General António Guterres remarked that there has already been a “horrifying global surge in domestic violence” and urged “all governments to make the prevention and redress of violence against women a key part of their national response plans for COVID-19.” The law clearly has a significant role to play in this context. As noted in a previous post, domestic violence matters engage many legal issues: civil protection order law, criminal law, family and child protection law, residential tenancies law, social assistance and housing law, and employment law, to name a few. This post reviews some of the efforts of lawmakers and courts in Alberta to respond to domestic violence issues in light of the COVID-19 pandemic and identifies some areas where further measures are needed. My focus is on domestic violence – in other words, violence in the context of intimate partner relationships – rather than child or elder abuse. Child and elder abuse cases also present challenging issues in the current pandemic, but they are beyond the scope of my analysis here. Continue reading →

“Extraordinarily Difficult”: Parenting Time and the Rights of Children in Cases Involving Family Violence

By: Jennifer Koshan and Irene Oh

PDF Version: “Extraordinarily Difficult”: Parenting Time and the Rights of Children in Cases Involving Family Violence

Case Commented On: DAF v SRG, 2020 ABCA 25 (CanLII)

Family law cases can raise issues that are very challenging for the legal system to address, especially where there has been domestic violence. As the Alberta Court of Appeal recently noted in DAF v SRG, these cases can entail “extraordinarily difficult decisions” with “potentially profound consequences for the parties and the children involved” (at para 19). Yet these cases are “made challenging by limited time and often conflicting affidavits” and may involve “disparate proceedings in multiple courts” (at para 19). Alberta was moving toward a Unified Family Court that would have consolidated family proceedings in one court presided over by judges experienced in family law. However, in late February the government put this initiative on hold, apparently because of costs.

The decision of Justices Patricia Rowbotham, Sheila Greckol and Dawn Pentelechuk in DAF v SRG underlines the need for a Unified Family Court in Alberta, raising issues about what level of parental contact with children is appropriate where there has been domestic violence and how the voices of children can be brought forward in such cases. The decision also provides an opportunity to discuss recent amendments to the Divorce Act, RSC 1985, c 3 (2nd Supp) and what impact those amendments should have on family law in Alberta. Continue reading →

A Lawyer’s Duty to (Sometimes) Report a Child in Need of Protection

By: Deanne Sowter

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Everyone has an obligation to report when they have reason to believe that a child is in need of protection, including lawyers – except where that information is protected by solicitor-client privilege. If the information is confidential a lawyer is required to report it just like anyone else; but if the information is protected by solicitor-client privilege, a lawyer can only report it pursuant to an exception. The future harm exception provides a lawyer with the discretion to disclose a limited amount of qualified information to try to avert serious physical or psychological harm, or death. Continue reading →