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

AuthorJuliana Dalley
PositionIs a third-year JD student at the University of British Columbia
By Juliana Dalley*
CITED: (2013) 18 Appeal 3-19
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).
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.

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