One Family, One Judge': Towards a New Model for Access to Justice for Families Facing Violence in BC

• Author: Juliana Dalley
• Position: Is a third-year JD student at the University of British Columbia
• Pages: 3-19

APPEAL VoLuME 18

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ARTICLE

“ONE FAMILY, ONE JUDGE”:

TOWARDS A NEW MODEL FOR

ACCESS TO JUSTICE FOR

FAMILIES FACING VIOLENCE IN BC

By Juliana Dalley*

CITED: (2013) 18 Appeal 3-19

INTRODUCTION

Spouses and children victimized by domestic violence face exceptiona l barriers in

access to family justice in British Columbia (BC).1 A multifaceted socio-legal problem,

domestic violence implicates criminal, civil, and family law simultaneously. us,

in taking steps to ensure her safety and the safety of her children, a battered woman

may become implicated in multiple, concurrent legal proceedings taking place in

dierent jurisdictional spheres.2 Reporting an incident of violence to the police can

trigger a prosecution in provincial criminal court, a custody dispute in provincial or

Supreme Court, divorce and matrimonial property proceedings in Supreme Court,

and child protection proceedings in provincial court.3 ese proceedings are driven by

fundamenta lly dierent concerns, will like ly be handled by dierent lawyers, a nd will be

heard by dierent judges. e conf usion and overlap that result from this fra gmentation

can create gaps in safety planning, lead to conicting court orders, and can enable the

oender to exercise control by manipulating the court process. Such fragmentation ca n

lead to continued violence and, in the worst of ci rcumstanc es, to tragedy.4

* Juliana Dalley is a third-year JD s tudent at the University of British Co lumbia. She would like to

acknowledge and thank Pro fessor Susan Boyd for her thoughtf ul comments on an earlier draft

of this paper. She would also like to thank the App eal Board, including her editor, Cynthia Khoo,

and her external revi ewer, for challenging her to strengthen the ar guments raised in this paper.

1 This paper uses the terms “family viol ence”, “domestic abuse”, and “domestic violence” to

include physical and sexua l violence, as well as emotional and nanci al abuse, perpetrated by an

intimate partner or pare nt.

2 This paper invokes gendered language to ree ct the fact that family viol ence is a gendered

phenomenon, with over 80 percent of survivors of family violence being women: Statistics

Canada, Family Violence in Canada: A Statistical Prole (200 9), online:

at 5. However, this is not to suggest that women in he terosexual relationships are the onl y

victims of domestic v iolence or to diminish the signicance of th e barriers to access to justice

faced by same-sex couples experiencing violence, but rather to reect the systemic, gendered

nature of the harm occasione d by family violence. Indeed, mo re research on violence in same-

sex relationships is need ed to understand the causes of such v iolence and how it might be

reduced: Jessica Stanley et a l, “Intimate Violence in Male Same -Sex Relationships” (2006) 21:1

Journal of Family Violence 31 at 31.

3 See Family Relations Act, RSBC 1996 c 128; Divorce Act, RSC 1985, c 3; Child, Family and Community

Service Act, RSBC 1996, c 46.

4 The murder of 6-year-old Christian Lee, h is mother Sunny Park, and his maternal grand parents

by Peter Lee in 2007 is one well-kn own example, and will be discussed in f urther detail in Part

II of this paper. See Mary Elle n Turpel-Lafond, Honouring Christian Le e — No Private Matter:

Protecting Children Living with Domestic Violence (Victoria: BC Representative for Children an d

Youth, 2009).

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APPEAL VoLuME 18

Spouses and children who experience domestic violence face both substantive and

procedural legal barriers in accessing family justice. ese barriers must be seen as

interrelated. erefore, eliminating them necessitate s coordinated, systemic law reform.

After an ex tensive community consultation process, BC recent ly introduced a new piece

of family law legislation that attempts to alleviate some of the substantive legal barriers

to family justice in the context of family violence.5 Although this legislation represents

important steps in addre ssing these problems, without reform of the system in which

this new law wil l be administered, these change s will not eectively address some of the

underlying structural barriers faced by survivors of domestic violence. I argue that the

implementation of an integrated domestic violence court (IDVC) system would help

to address some of the struct ural barriers faced by survivors of domestic violence in

navigating the court system.6 e IDVC is a specialized court where one judge decides

almost all leg al matters relating to one fami ly, that arise in t he context of family violence,

whether they are family, civil, or criminal proceedings. is st ructure renders the court

system more accessible to sur vivors of violence while reducing the opportunity for

information gaps, conicting orders, and other barriers to arise. ese changes may go

some way towards improving acce ss to justice; however, it would be incorrect to suggest

that legal cha nge alone can end family violence. is paper acknowledges the sy stemic

causes of fami ly violence as rooted in structural inequa lities created by patria rchy that

break down along lines of gender, but also of ra ce, class, age, sexua lity, and other facets of

socia l identity.7 Ending family violence therefore necessitates commun ity-based support

and advocacy alongside deeper social cha nges that remedy structural inequalities facing

women and other margina lized groups.

I begin by discussing historical trends in domestic violence law reform, both inside and

outside Canada, and t he emergence of the IDVC in other jurisdictions as a solution

to structura l problems in access to justice for victims of domestic violence. I then

analyze how adopting the IDVC model in BC would address some of these ba rriers,

focusing on the issues of protection orders, custody, and access. While noting that

issues of constitutionality and respect for the diversity of Canadian families, including

indigenous fami lies, must be recognized and accom modated in any court structure, t his

paper concludes that implementing IDVCs in BC would increa se the availability and

eectiveness of family law remedies to sur vivors of domestic violence, with the overall

result of improving the safety of families. IDVCs, if structured appropriately and with

regard to issues of constitutionality and diversity, represent a potential model for law

reform in BC.

5 Bill 16, Family Law Act, 4th Sess, 39th Leg, British Columbia, 2011 (assented to 24 November 2011),

SBC 2011, c 25. Bill 16 was introduced on November 14, 2011, into the BC Legislative Assembly

and received Royal Assent o n November 24, 2011. It will come into force in March, 2013. I discuss

these reforms in Part II of t his paper.

6 The barriers associated with access to famil y justice cannot be fully understo od without mention

of the erosion of access to legal aid in f amily law proceedings over the last sever al years in BC.

Although the issue of access to lega l aid is beyond the scope of this paper, it must be re cognized

as one of the many interlocking s tructural barriers that weake ns access to justice for survivors

of family violence: see Al ison Brewin, Legal Aid Denied: Women and the Cuts to Legal Se rvices in BC

(Canadian Centre for Policy Alter natives and West Coast LEAF, 2004).

7 This paper draws on both feminist and socio logical theories of family vi olence. Common to both

theories is the premise that v iolence is a means of exercising power and cont rol. While structural

inequalities such as class, ag e, race, ethnicity, and sexuality all imp act how power and control

are exercised, feminist th eory helps to explain how these i nequalities aect men and wom en

dierently in the context o f family violence: see Kristin An derson, “Gender, Status and Domesti c

Violence: An Integration o f Feminist and Family Violence Approache s” (1997) 59:3 Journal of

Marriage and the Family 655.