British Columbia has suffered a number of tragedies in which women and their children where killed by an intimate partner. Reports commissioned in the aftermath of these tragedies point to a consistent set of problems – lack of coordination, consistency and collaboration between systems responsible for responding to violence against women with children.
On March 18, 2013, BC’s took a long awaited and important step forward in addressing these problems with the introduction of the new Family Law Act (FLA). The FLA, a culmination of years of stakeholder engagement, represents a major shift in how the province responds to violence against women, particularly where there are children involved. Unlike its predecessor, the Family Relations Act, the FLA comprehensively defines family violence. It also mandates that when making orders the court must consider both the impact of family violence on children, and the ability of the parent who suffered the violence to parent alongside the abuser. Another important feature of the FLA is that it attempts to create clarity and consistency between family, criminal and child protection law.
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In this context it was shocking to learn that just five days before the FLA came into force, and in the final week of the final sitting of the legislature before the election, BC chose to take a major step backwards in protecting women and children. Under the auspices of Bill 8, the “Miscellaneous Statues Amendments Act”, changes were passed to the Child, Family and Community Services Act (CFCSA), which governs child protection practice in BC. These changes undermine the progress of the FLA in a number of ways. Bill 8 strikes out the term ‘family violence’, which is consistent with the FLA, and substitutes it with the term ‘domestic violence’ which is not defined. The CFCSA term ‘domestic violence’ will likely draw a narrower interpretation than the FLA term ‘family violence’ since domestic violence in the CFCSA is used in the limited context of emotional harm that a child suffers when witnessing family violence that may render the child in need of protection.
There is also the issue of how the CFCSA orients child protection workers, and society more broadly, in terms of understanding violence against women and its impact on children. The FLA’s definition of family violence focuses on the abuser’s patterns of behavior and the impact of those behaviors over time. On the other hand, the amended CFCSA states that a child may be in need of protection as a result of exposure to domestic violence if the child is living in a situation where there is domestic violence by or towards a person with whom the child resides. This definition does not distinguish between the role of the perpetrator and victim, or address the elevated risk of violence or lethality facing women and their children when fleeing family violence. Like the FLA, the CFCSA needs a fulsome definition and thoughtful unpacking of family violence in order to shift the loci of investigation towards the patterns of behaviour of the abuser and needs of the abused. Rather than framing the two parents as equals and pre-judging living arrangements as the central issue, the CFCSA should have followed the FLA’s lead which allows for thoughtful and effective intervention in family violence.
The CFCSA, unlike the FRA, also fails to recognize that integral in protecting children is the protection of the abused mother. Currently, a woman is more likely to be sent to a parenting program than to be encouraged to access a women-serving agency when experiencing violence while involved in the child protection system. This fundamental misunderstanding of violence against women reinforces the harmful notion that the abused woman is the problem and a bad parent, rather than that the violence a woman faces is not her fault and that she has the internal resources and external support to move past the abuse. Being directed to inappropriate services makes it less likely that a woman will be supported in getting effective family or criminal based orders that protect her and her children.
We can increase children’s safety by ensuring that no one area of law is operating in a vacuum, and by sending a consistent message to victims and offenders. Like the creation of the Family Law Act, amending the CFCSA presented an opportunity to increase collaboration and shift practices to better protect children. These last minute and hasty amendments to the CFCSA are a missed opportunity and do a disservice to children in British Columbia. The inconsistency of the terms between the FLA and the CFCSA will inevitably lead to inconsistency in orders and service provision at a moment when the province seemed to be moving in the direction of coordination. These amendments beg the question, if the CFCSA doesn’t understand family violence with depth, how can it live up to its purpose of protecting children?