‘Vagueness is a gift to an abuser’: What the Tories got right — and wrong — on Bill 207

Experts and advocates say that the bill is a positive step forward. But they’re worried it doesn’t go far enough to keep children and their mothers safe
By Jane Gerster - Published on Nov 11, 2020
A billboard for Lanark County Interval House, which provides supports and services for women and children dealing with domestic violence. (Jane Gerster)

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MJ Coyles sits, sometimes literally, between a woman and her abuser.

She remembers the man who leaned his chair back in court, twisting his head to stare intimidatingly at his former partner the entire time she spoke. Nobody said anything, not the lawyer or the judge. 

“You want to believe that our systems are here to protect our most vulnerable,” she says. “But then that happens.”

Coyles isn’t a lawyer, but she’s the closest thing many of her clients have to one: she works as the family-court support worker in the Lanark County region of eastern Ontario. Her job is to help victims of domestic violence navigate family court, helping them prepare for hearings and connecting them with other community-based supports.

A bill that’s quietly raced its way to third reading in the Ontario legislature could help support her clients. Bill 207 introduces an expansive definition of what constitutes family violence — forced confinement, sexual abuse, threats, harassment, and financial abuse, no criminal conviction required — where before there was none.

But those in the field worry that its utility will be undercut by a failure to tackle the myths and stigma around domestic violence, as well as the chronic underfunding that leads support workers, such as Coyles, to quietly, consistently work unpaid overtime so that women trying to flee abuse won’t be left alone. (Currently, the province funds Coyles’s position for only 8.25 hours per week.)

The stakes are high: the vast majority of people killed in domestic-violence murders in Ontario between 2002 and 2014 were women and children, according to the province’s Domestic Violence Death Review Committee. One of the top risk factors for domestic homicide, according to the committee, is “actual or pending separation.”

But the family-court system can be confusing and isolating, frequently failing those who need it the most, says victim advocate Brianne Luckasavitch: “Women go back to abusive relationships when systems fail them.”

two women sit under decorations
Family-court support worker MJ Coyles (left) with her predecessor, Brianne Luckasavitch, at Lanark County Interval House. (Jane Gerster)

Advocates such as Pamela Cross, legal director at Luke’s Place, an Oshawa-based family-law support centre that focuses on women fleeing domestic violence, say that Bill 207 is a largely a positive and decisive step forward. But she and others worry that the legislation — which will bring Ontario into alignment with changes to the federal Divorce Act — doesn’t go far enough in preventing family violence.

In a lengthy briefing note, Cross, the lead trainer for Ontario’s Family Court Support Workers Program, recommends 15 amendments. 

“Even as we applaud much of Bill 207,” the note reads, “we believe it can and should go farther to ensure that post-separation arrangements for children in cases involving family violence keep both children and their mothers safe.”

Cross says that the bill contains vague language and that “vagueness is a gift to an abuser.”

In particular, she notes a section clarifying that each parent with parenting time allocated by the courts has “exclusive authority” to make day-to-day decisions during their time. Advocates, though, would like to see “exclusive authority” removed from the bill, which, they say, should state clearly that day-to-day decisions must not conflict with decisions made by the parent with the primary responsibility for decision-making.

Several years ago, Cross says, she had one client who had to share custody of her two children with an abusive ex-partner. Her ex didn’t believe that their daughter’s physical and developmental disabilities were as severe as the mother said they were, so he declined to bring his daughter’s wheelchair when she was in his custody. As a result, Cross says, their daughter was trapped on a couch every time she visited her father.

“That’s what happens when a parent who is really trying to continue to give the finger to their former partner gets to make [day-to-day] decisions,” Cross says. “To entrench that in the law, the way it’s written now, is really problematic.”

A spokesperson for Attorney General Doug Downey declined to elaborate on why amendments suggested by family-violence experts were not included in the bill. Instead, he highlighted the bill’s creation of “a new duty for the court in any proceeding under the Children’s Law Reform Act to consider the existence of any restraining order, child protection or criminal proceedings or orders that involve the parties.”

During committee hearings for the bill, family lawyer Philip Viater argued that Bill 207 also falls short when it comes to training. Viater’s four-year-old stepdaughter, Keira Kagan, was found dead along with her biological father in a murder-suicide last February.

“They are great words, well-written on a piece of paper, that will have practically no, if any, impact on real-life [judicial] decisions,” he said. “Every single skilled lawyer talks about family violence. Every skilled lawyer talks about emotional harm to the child. The issue isn’t that judges aren’t considering it … The issue is that judges don’t know what to do with that information. They have no mandatory training in family violence — none.”

a woman stares out a window
Jenna looks out the window at Lanark County Interval House, where she’s received support for her ongoing legal fight against an abusive ex-partner. (Jane Gerster) 

Jenna, who asked that her last name not be used, is very familiar with that lack of training: she’s been mired in family-court proceedings since she left her abusive long-time partner four years ago and began fighting for custody of their three kids. “I think, because the court system is now seeing the quote-unquote benefits of kids being with both parents, they overlook the mental and emotional abuse that happens,” she says.

The words “best interest” appear numerous times in her ex-partner’s court filings arguing for sole custody (it’s one of the top criteria for judges to consider under the current Family Law Act), Jenna says — that despite the fact that, for more than a dozen years, she was her children’s trusted primary caregiver.

Once, she says, just hours before a court appearance, she received a letter from a counsellor indicating that her middle child wasn’t ready to see her. When she tried to tell the justice that her children were always welcome at her house, she says, he cited the letter and told her, “You must be ignorant to what’s going on.”

Jenna says she can’t recall her middle child ever going back to that counsellor. “My ex got what he needed,” she says.

One of the amendments recommended by advocates is that the government ensure adequate funding for family court; without it, as Cross writes in her briefing note, Bill 207 is “much less likely to have the desired positive impacts.”

Legal Aid’s funding levels will stay the same in 2020/21, per the attorney general’s spokesperson, who said that the government is “working closely… to ensure access to justice for all Ontarians.”

A spokesperson for Legal Aid Ontario told TVO.org via email that “Legal Aid has made significant efforts to either maintain or improve our domestic violence services.”

As part of Legal Aid’s domestic-violence strategy, people experiencing abuse can receive two hours of free legal advice. However, to qualify for legal representation, a single person would need to earn less than $22,720 annually, or $45,440 for a family of four. (These financial requirements have been waived during the pandemic.)

Coyles says that she has sometimes spent two weeks’ worth of her government funding just to help a woman apply for Legal Aid, only for her to be disqualified for making an amount slightly above the cut-off.

Despite the fact that Bill 207 will likely pass without amendments, Cross says, she’s gratified to see more conversation around the need for judicial education. “There’s a lot we can do with the bill the way it is,” she says. “We can continue to press for some kind of [domestic-violence] screening tool … the better educated the people who apply the law are, the better it will work — even if the law itself isn’t perfect.”

Ontario Hubs are made possible by the Barry and Laurie Green Family Charitable Trust & Goldie Feldman. 

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