Shut in with their abusers 24/7 and with few options for flight, many victims forced to wait it out until COVID-19 restrictions lift.
The Ontario trial courts (the Superior Court of Justice and the Ontario Court of Justice) in March 2020 closed their doors to all but the most urgent matters, with judges, lawyers and court administrators all expecting that the majority of the urgent family law cases would involve incidents of domestic violence.
That has not happened and many in the legal system are wondering why.
The statistics available worldwide suggest that domestic violence cases dramatically increase when lockdowns are imposed. For example, the New York Times reported that domestic violence reports in Spain increased by 18 per cent and by 30 per cent in France after their respective lockdowns.
There is apparently a pattern: Like clockwork, domestic violence reports skyrocket within two weeks of a lockdown being announced.
In Canada this April, Maryam Monsef, the Minister for Women and Gender Equality, consulted with frontline organizations, provinces and MPs across the country and uncovered a 20-to-30 per cent increase in the rates of gender-based violence and domestic violence in some regions. Oddly, shelters in other regions, including more rural communities, reported things as being "eerily quiet."
In Ontario, in the first three weeks in June, 45 per cent of all urgent cases being heard in the Superior Court were family and/or child protection cases, said Tami Moscoe, counsel to the Chief Justice of the Superior Court in Ontario.
Despite that, only a handful of those urgent cases dealt with the fallout from domestic violence. And of those involving domestic violence, only a small number involved victims of abuse seeking orders for "exclusive possession."
Exclusive possession is the right for one spouse to live in the home while the other spouse is ordered to live elsewhere. In these situations, the children usually remain in the home with the victim of abuse, and the abuser is required to move out.
In one case, Leach v MacDonald, the court had to decide alternative access exchange arrangements. Because of a prior finding of domestic violence, the parties were already required to do the exchange at school, in the presence of a third party or, if those options were not available, at the police station.
During the pandemic, the first two options were no longer available, and the father wanted the mother to pick up the children from his home.
The court decided instead that the exchange would occur at the police station in the parking lot, not inside the building. The order specified that only the children could get out of the car, and that the parents had to remain in their respective vehicles.
Of course, intimate partner violence does not always involve physical assault. Many abusers successfully isolate their spouse from friends and family. Others persistently surveil their spouses, and impose detailed rules or expectations on behaviour. Abusers may even restrict access to food, clothing or basic needs, such as using the bathroom.
For spouses under lockdown, particularly if neither spouse leaves the home for work, the opportunity for the abuser to impose further and stricter rules exponentially increases.
Why, then, has there not been a corresponding increase in domestic violence calls in all regions, and why have these cases not found their way into court?
Pamela Cross, legal director of Luke's Place, an Oshawa, Ont.-based organization that provides support, summary legal advice and training for shelter staff and lawyers, has made several observations.
First, Cross said that "living full time with an abuser limits the victim's ability to call for help" from family, friends or the police. Similarly, it is much more difficult to have a private conversation with a shelter or a lawyer, given that doing so requires it be done by phone or video conference.
Second, she said those who have yet to leave an abusive relationship often "have developed some ability to manage" the extent of the abuse they suffer. She speculates that those victims "have decided, for the moment, that the risk associated with COVID-19 is greater than the abuse they are currently experiencing."
In addition, Cross said, many spouses who leave an abusive relationship do not access the shelter system, but temporarily move in with other family members, such as their parents. "If the escape plan involves the victim's elderly parents, this is no longer a reasonable option," she said.
Third, she believes that those who have consulted with a lawyer are wary of the urgency threshold imposed by the courts, even though they need a restraining order or exclusive possession of the home.
"The court's message in the family COVID-19 cases so far has been to exhort parents to 'work it out' and refrain from using 'self-help' remedies," Cross said.
Most family lawyers would agree that in cases where a victim of abuse leaves the home and takes the children with her, the abuser almost inevitably denies the abuse. The victim is accused of using "self help" by taking the children. In custody/access cases, the courts strive to maintain the status quo where it is in the children's best interests to do so.
It is much more difficult to prove abuse when it is mental and verbal, rather than physical. In those cases, the court will often require the victim to deliver the children back to the home. The victim must then decide whether she returns the children to live with the abuser but stay out of the home herself (which can jeopardize her parental rights), or return to the abusive environment with her children.
Cross has praised some steps taken by the government in dealing with this issue.
Funding has been made available to allow Legal Aid Ontario to expand its services. Anyone who has experienced domestic violence, no matter whether they meet the financial criteria for legal aid, can receive two hours of free summary legal advice.
Luke's Place, which prior to the pandemic provided summary legal advice to victims of abuse in remote areas over the internet, has repurposed its system to make it available province-wide.
Cross predicts victims of intimate partner violence will flood the court system as lockdown restrictions ease and court services return to normal.
How the courts will triage these cases when struggling with the backlog created by their currently restricted operations remains to be seen.
This article originally appeared in the National Post.
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