Coercive Control: What Should a Good Lawyer Do?

• Author: Deanne Sowter
• Date: December 27, 2019

I am currently conducting research to determine whether coercive control can be considered psychological harm for the purpose of the future harm exception to confidentiality and solicitor-client privilege.[1] My research is supported by the OBA Fellowship in Legal Ethics and Professionalism Studies. In that research I’m determining whether a lawyer can disclose, but doing that research has provoked me to wonder whether a lawyer should disclose.

In December 2017, Andrew Berry murdered his children, six-year-old Chloe and four-year-old Aubrey. Berry was convicted of second degree murder. Sarah Cotton, the girls’ mother, feared Berry, claiming that he had made threats in the past, had physically assaulted her, and had failed to protect their children (he took their 2 year old boating without a life jacket, left his 6-month old alone in a stroller, and drove erratically with the children in the car).[2] Ms. Cotton’s lawyer did not ask the court to stop allowing overnights. Ms. Cotton’s only request was that overnights not occur consecutively so she could address medical needs and care of the children when they returned. The Ministry of Children and Family Development were involved, but did not seek emergency orders. The court ordered overnight access allowing Mr. Berry unsupervised time with his children. It was during one of those visits that he killed both girls.

The Cotton v Berry case provoked criticism about judicial competence for handling cases involving family violence, particularly coercive control. The President of the Law Society of BC defended Justice Gray, saying she “applied the law based on the evidence before her”.[3] In contrast, in a thorough review of the decision, Lori Chambers, Deb Zweep and Nadia Verrelli criticized the court, arguing that the court did have enough information to see the pattern of coercive control.[4] Justice Gray erred on the side of hope that Mr. Berry would change, instead of recognizing the signs and erring on the side of caution. Gillian Calder and Susan Boyd also wrote an op-ed criticizing the court’s failure to recognize the seriousness of coercive control.[5] The National Judicial Institute has launched training in family violence for federally appointed judges.

Mr. Berry was not represented in the family law matter creating additional challenges. Self-representation where there is family violence means the victim’s lawyer is tasked with negotiating directly with her client’s abuser. Indeed, self-representation can be another form of abuse. If the parties litigate, the abuser may even cross-examine his spouse (a practice that is prohibited in some jurisdictions. i.e. the UK, and Australia).

I raise Cotton v Berry in order to illustrate the complexity of coercive control, the lack of understanding about it, and the difficulty in identifying it.

Coercive Control

There are no universally shared definitions of family violence, domestic violence, intimate partner violence, or coercive control. One definition of coercive control is that it is “an ongoing pattern of domination by which male abusive partners primarily interweave repeated physical and sexual violence with intimidation, sexual degradation, isolation and control.” [6] Although there is some overlap in these categories, they generally include coercive behaviour (i.e., physical violence, threats, intimidation, surveillance, stalking, gaslighting, cyber-stalking) and controlling behaviour (i.e., isolation, financial control, and micromanagement extending over everyday household tasks). It also includes use of the justice system to continue a pattern of abuse – filing frivolous claims, making false reports to child welfare authorities, claiming harassment, claiming sole custody, and prolonging the dispute.[7] The primary outcome is a condition of hostage-like entrapment.[8] It is a challenge to identify because there is often a long pattern of abuse – emotional, psychological, financial, and physical – and when viewed in isolation, some of the behaviours may look like a “bad marriage” to an outsider.[9] Coercive control is overwhelmingly perpetuated by men against women.[10]

Coercive control can be just as dangerous as physical violence, and it has the potential for longer lasting effects.[11] The Department of Justice has said that coercive control is the “most serious type of violence in family law”.[12] Separation and the presence of coercive control are linked to an increased risk of fatality.

In June 2019, the federal government amended the Divorce Act to introduce family violence, including coercive control, into divorce law. The change follows the British Columbia Family Law Act’s emphasis on family violence. Once the amendments come into force, coercive control will be a factor in considering the best interests of the child when making parenting and contact orders, and in relocation applications.

The UK has criminalized coercive control.[13] Their offence recognizes the pattern of psychological and emotional harm that can result from coercive control, but it does not define “coercive” or “controlling”. In Canada, only some of the behaviours are criminal offences.

Coercive control is complicated, legally relevant, and fraught with challenges to identify. My question is whether coercive control should change a...