Courts not protecting our kids, domestic violence survivors say
Forcing children to spend time with people they're afraid of causes trauma, parents claim
Warning: This story contains accounts of intimate-partner violence and self-harm.
Kristen's nine-year-old daughter says she's afraid of her father and wants nothing to do with him.
But there's a court order saying they have to spend time together, something the B.C. mother says she can't understand.
Court records show the father has a criminal conviction for assaulting a family member.
Kristen says the assault happened in the child's presence and that her former partner has hurt both herself and her daughter in the past.
"Some children … are going to be frightened and they're not going to want to see the person that has done this to them and to their parents," Kristen said. "And that should be OK."
But the B.C. Supreme Court ruling on parenting in this case stated that Kristen's nervous behaviour is likely to blame for the child's reluctance to see the father and ordered counselling to repair their relationship. The ruling makes no mention of the father's assault conviction or his repeated breaches of probation orders.
A CBC News investigation over the course of several months examined the experiences of a dozen domestic violence survivors in family court. Many told CBC they were forced by courts or court-appointed counsellors to hand children over for visits or as part of shared parenting plans to former partners they were afraid of.
The women were generally supportive of their children having a relationship with their former partners, but all say they wish their concerns about safety, retraumatization and their children's fears about being around the other parent were given greater consideration.
CBC is not using the women's real names because some have active child custody cases, are concerned for their personal safety and risk losing access to their children if they are identified.
Abuse not always disclosed
Data on how often courts grant unsupervised access to parents with a history of domestic violence is difficult to come by. Intimate partner violence survivors don't always disclose abuse to police or lawyers and it can be risky to do so in court. Much abuse, especially non-physical, does not result in a criminal conviction.
Studies that have been done on family court outcomes refer to intimate partner violence cases as "high conflict," but Kristen and other survivors say this is a misnomer because it lumps such cases in with acrimonious breakups where there's no history of domestic violence.
CBC reviewed several family court rulings in which judges expressed disappointment that the parents' relationship had become dysfunctional to the point where they could not agree on a parenting plan.
Georg Stratemeyer, a former mediator who worked with the family courts in Alberta for six years helping families in this situation, said part of the process was to screen for domestic violence.
But the screening tool missed a lot of cases because the questions focused on physical abuse and its severity, rather than the degree of control in the relationship, he said.
If there is domestic violence of any kind in a relationship, mediation will be unsuccessful and safety should become the priority, Stratemeyer added.
"If there is a coercive control situation, then we need to figure out ways of protecting the victim and allowing her to manage her safety and measure the risk of … violence to occur," he said.
"There need to be support systems in place that support her and the children."
Conflicting evidence
Cheryl Cordeiro, a family court mediator, arbitrator and parenting co-ordinator in Brantford, Ont., says because of a common belief that shared parenting is in the best interest of the child, judges want the parties to get along and tend to favour the parent who seems more co-operative.
"A judge will look for the, quote unquote, friendly parent to be given more of the parental responsibilities because they are seen as the parent that will facilitate a loving relationship with the other parent."
Judges are often sifting through large amounts of conflicting evidence and don't always have the training to spot the signs of violence and coercive control that would allow them to distinguish the cases where abuse is a factor from the majority of the high conflict separations that come before them, Cordeiro said.
Survivors and advocates say the distinction is important because restricting access to a child may be understandable in a context of abuse. But if there is no claim of abuse, or the court is unaware of it or disregards it, demanding that access to a child be restricted or refused could seem like a vindictive or unfriendly action on the part of the parent.
Kristen said that in her case, protective actions on her part were misinterpreted by courts.
"I think we should be allowed to defend ourselves and keep ourselves and our children safe, regardless of how that looks to somebody on the outside. Maybe [courts] need a little more education and understanding around that."
Accused of alienation
In Kristen's case, her former partner argued that Kristen and her family poisoned the daughter against the father and that they were therefore guilty of alienation, court documents show.
A report written for the court by a clinical psychologist agreed, and found the mother's nervous behaviour was responsible for the daughter's refusal to see her father. If Kristen did not encourage her daughter to spend time with her father, he wrote, the father would never be able to parent her successfully.
Because of this, the court ordered reunification counselling between father and daughter.
Kristen said her daughter cries and tells the counsellor she is afraid and does not want to go, but is forced to go regardless.
"I think she's feeling increasingly discouraged. Hopeless. Trapped," Kristen said. "Those are all words that she's actually said to me."
Cordeiro has seen the same scenario play out in Ontario.
"It's not a one-off. I've personally witnessed a child clutching one parent … to the point that the child was ripping that parent's hair out [saying] that they did not want to go and screaming. They were scared and crying. And the parenting co-ordinator instructed the other parent to literally rip that child off of that parent, put them in the car and drive away."
'Don't make me go back'
The same thing happened to Anna, another B.C. woman and domestic violence survivor, more than a decade ago.
A court-appointed psychologist stated, and the judge agreed, that because of the danger of alienation, reunification counselling was needed between Anna's older son and his stepfather.
After the first two sessions, Anna said her nine-year-old son came out in tears.
"He said, 'I don't want to do that ever again. Don't make me go back.'"
In the sessions, her son told her he was accused by the doctor and his stepfather of lying when he recounted abuse between his parents, Anna said.
After the third session, Anna said her son was too afraid to leave her side.
"And I went to put him to bed that night … he grabbed a knife in the kitchen and held it in his stomach and told me that he didn't want to be here any more. He didn't want to go to bed and he didn't want to remember," Anna said.
The accounts of the court-ordered counselling sessions and the suicide attempt are corroborated in a letter from the child's counsellor at the time.
WATCH | A mother talks about her son's distress:
After the suicide attempt, Anna's former partner stopped requesting access to the older son, who was later diagnosed with PTSD.
Kristen fears her daughter may be headed down the same path as long as the counselling sessions continue.
"I'm seeing her not engaging in the same way anymore. I'm seeing her isolating herself. Seeing a lot of changes in her appetite, seeing changes in her mood, like things that would usually just roll right off her back now just trigger her and upset her disproportionately," she said.
Kristen says her daughter told her recently "I just want all the visits to stop, but there's no way out. I wish I was dead.'"
'You're traumatizing that child'
Both Anna's and Kristen's cases were heard in B.C. Supreme Court.
Spokesperson Bruce Cohen said he was not able to comment on what safeguards are in place to protect domestic violence survivors and their children and that judges only comment on such matters in their reasons for judgement.
Cordeiro said it can be possible to rehabilitate a broken parent-child relationship, but forcing children into counselling or visits against their will is counterproductive.
"You're traumatizing that child by forcing them to go. They're not building a bond there. They're [acting] out of fear," she said.
Instead, Cordeiro said, such cases should be taken out of the court system entirely and decided through an alternative process presided over by people who are trained to spot the signs of domestic violence and coercive control.
That process, Cordeiro said, should have the safety of children and survivors as a guiding principle.
"Should parents be cut off from their child? No. But there is a process that has to happen. When a child says they are afraid … let's get to the reason that the child is afraid," she said.
"Then we need to work at the pace of the child with rehabilitating them with that parent, ensuring the child … feels safe, ensuring the child feels heard."
Kristen said she's not opposed to reunification, but wishes her daughter's safety and security were at the forefront of the court process.
"When you abuse somebody, when you hurt somebody, it is absolutely natural for them to not want to have anything to do with you," she said.
"You would never, never in a million years ask a woman who's been abused by somebody to spend time with her abuser … to meet up with him once a week. You would never ask that of a woman. Why would you ask that of a child?"