'A life sentence': No escape from abusive relationships when navigating family court system, say victims
Victims, experts say courts often fail to recognize and protect people from non-physical forms of abuse
This story originally published on June 22, 2023.
WARNING: This article contains details of intimate partner violence.
Brenda Ottenbreit was at a salon when the plan she'd been making for months to leave her husband went out the window.
The Canada Revenue Agency had just frozen his bank accounts. Then, he called her.
She says the anger in his voice made her rush to her rural home near Lloydminster, Sask. She packed in 20 minutes, and left with her four kids.
"To this day I believe I was in serious danger that day. I knew how angry he was going to be," says Ottenbreit.
It turns out leaving that day in 2014 was just the beginning of her battle.
I am more vulnerable today than I was when I walked out the door.- Intimate partner violence survivor
Ottenbreit's then-husband did not file income taxes from 2001 to 2006, nor from 2013 to 2021. He was charged with failing to file income taxes shortly after they married in December 2007. That's when Ottenbreit first learned of the significant debt he owed the Canada Revenue Agency.
"I was told I was responsible for half of it. I'm driving a school bus. Where am I coming up with it?" Ottenbreit recalls thinking.
She was only legally granted a divorce in April 2023 — nearly nine years after leaving a six-and-a-half-year marriage. She says despite testifying about abuse in family court and getting a judgment in her favour, the judge did not describe her ex-husband's behaviour as abusive in her decision.
Changes to the national Divorce Act in 2021 require judges to consider any history of family violence when making determinations about parenting and access to children. Its definition includes "financial abuse."
In April 2023, Bill C-233 — otherwise known as Keira's Law — passed, amending the Judges Act to provide for continuing education seminars for judges on matters related to intimate partner violence and coercive control.
But survivors, advocates and experts say these changes don't go far enough. They say abuse is still not being properly considered in family court decisions, and survivors' and their children's safety remains at risk post-separation as a result.
"I am more vulnerable today than I was when I walked out the door," says Sarah, a survivor of domestic violence who has gone through the criminal and family court systems. Sarah is a pseudonym; CBC News has agreed not to name her due to safety concerns.
"I've been served a life sentence. My kids and I deserve better. I left domestic violence so that I would be free and safe, and it's exactly the opposite."
Both women say they experienced coercive control — a form of psychological abuse — in their marriages, and the abuse has continued after leaving.
Both say the systems that are supposed to protect them have only further enabled that abuse.
Need help? Jump to the resources section.
'Silent torture'
Sarah says her ex-husband's abusive behaviour slowly escalated after their family court decision in 2022. For instance, she says he began dropping off their kids with her later than the court order stated.
"What I've found is now that we no longer are living together as a family, I can't actually protect them," she says.
Then, she says, the stalking and harassment began.
When she went to the police, she felt she wasn't taken seriously. Sarah says she was denied a peace bond because her ex-husband hasn't physically assaulted her or her kids recently.
She even presented a list of 39 risk factors for domestic homicide to police, which was included in the final report of Saskatchewan's Domestic Violence Death Review Panel. Sarah says she can check off more than 20.
(PDF KB)
(Text KB)CBC is not responsible for 3rd party content
"It's silent torture, because to the outside world, nobody's seeing what's happening to me," says Sarah. "You don't have bruises on your body, you don't show up to work with a black eye, but everything that's happening in the background is contributing to that torture."
Defining coercive control
Emma Katz, an associate professor at Durham University, domestic violence researcher and author of Coercive Control in Children's and Mothers' Lives, describes coercive control as a "campaign of persistent and wide-ranging controlling behaviour over a long period of time, and they make it clear that if the person resists and stands up for themselves, they'll be punished."
Katz pointed out that although the changes to the Divorce Act in 2021 name coercive control as a form of family violence, it doesn't define it, "so the courts have been told to look out for coercive control, but they're not even being officially told what this is."
"We've got a very long way to go with recognizing more subtle forms of abuse that don't involve bruises and black eyes," says Katz.
According to research in the University of Pennsylvania Law Review, coercive control can take a number of forms, including:
- Fear
- Intimidation.
- Emotional abuse.
- Destruction of property and pets.
- Isolation and imprisonment.
- Economic abuse.
- Rigid expectations of gender roles.
For example, an abusive person might sabotage their partner's efforts to find or keep a job by refusing to let her sleep the night before a job interview, destroying her work clothing, or hiding car keys.
"They have a thumb on you, on your life," says Sarah. "There's always coercion and control and taking over your life, and you don't even realize what's happening."
Sarah says she knew she had to get out when her then-husband physically attacked her in front of her children.
Sarah's ex-husband has been convicted of assaulting her, and the judge recognized his violent and coercive behaviour in family court. The judge also recognized his coercive control has continued since their separation.
But Sarah says no one is doing anything to stop it, and she still has to share custody of the kids with her abuser.
Ottenbreit says her ex-husband never physically assaulted her, but the "coercion and manipulation happened all the way through."
She remembers walking on eggshells throughout her marriage — hyper vigilant of his moods and fearful of his anger.
"I noticed myself watching as he drove down the driveway to see how his body language was. If he was tense, if his jaw was set, I knew we were in trouble the minute he walked in," says Ottenbreit.
Ottenbreit's ex-husband could not be reached for comment.
Women face a legal twilight zone; laws meant to protect them, compensate them, and deter further abuse often fail in application because women telling stories of abuse by their male partners are simply not believed.- University of Pennsylvania Law Review
In his submission to family court, he dismissed her allegations of family violence as "inconsistent" and "attention seeking."
"What so many survivors fight [for] is to be believed. If you're not put in the hospital, if you don't have doctors records, if you don't have black and blue bruises on you, it's really hard to have people believe what you're saying," Ottenbreit says.
The University of Pennsylvania Law Review says, "Women face a legal twilight zone; laws meant to protect them, compensate them, and deter further abuse often fail in application because women telling stories of abuse by their male partners are simply not believed."
Ottenbreit says her husband had financial control in the relationship. She felt trapped in the marriage because despite leaving the relationship in 2014, the court documents indicate her ex only filed taxes shortly before the family court proceedings began in late 2022. This delayed the divorce. He admitted in cross-examination in family court that he never made a voluntary payment to Ottenbreit, despite court orders requiring him to do so.
Experts say this is a common post-separation abuse tactic.
"It takes over their whole life and drains them of every financial or emotional resource they may have," says the National Association of Women and the Law's director of legal affairs, Suzanne Zaccour.
In divorce proceedings, the judge ordered Ottenbreit's ex-husband to pay her nearly $500,000. Ottenbreit hasn't seen this money yet, and she says he is behind on paying monthly support payments, and she hasn't received reimbursements for childcare expenses. Her ex-husband has a year to pay the lump sum, but Ottenbreit worries she'll have to go back to court to get what she's owed — costing her more and forcing her to confront him again. She says testifying in the divorce proceedings was traumatizing enough, describing it as "one of the most horrendous experiences I've ever gone through."
Flipping the script
Kayla Gurski, a registered social worker, therapist and sessional instructor at the University of Regina in the social work department, says that for "some abusers, it's a mental game for them. They would do things like tiptoe right around the edges of their agreement."
Sarah says since her ex has gotten away with not following the family court order, he has now escalated to filing malicious reports against her with police and child services to make her look like an abuser.
This is a common abuser tactic identified by Stanford University psychology professor Jennifer Freyd. It's called DARVO, an acronym for "deny, attack, and reverse victim and offender."
"They deny that they were ever abusive. They attack the credibility and character of the victim, and they attempt to reverse people's opinions about who is the offender and who is the victim," explains Katz.
Sarah says police have now "lumped" her in with her ex, considering them both in the same light as they file reports against one another — despite her providing a copy of the court document that details abusive behaviour on his part.
Police have not charged her ex-husband with filing false reports.
In family court, DARVO frequently plays out as claims of "parental alienation." If a victim says a partner is abusive, the perpetrator will often deny any abuse took place and say the victim is turning their children against them.
Ottenbreit says her lawyer initially discouraged her from testifying about family violence in divorce proceedings over concerns she'd be labelled as an alienator. She did it anyway.
The use of the "discredited and unscientific pseudo-concept of parental alienation … by abusers as a tool to continue their abuse and coercion, and to undermine and discredit allegations of domestic violence made by mothers" is an issue in courts around the world, according to a recent report by the United Nations' special rapporteur on violence against women and girls.
"As a result of the lack of training and gender bias and lack of access to legal support, the custody of children may be awarded to perpetrators of violence, despite evidence of a history of domestic and/or sexual abuse," says the report.
That happened in a case that went before the Saskatchewan Court of Appeal. Both the Provincial Association of Transition Houses and Services of Saskatchewan (PATHS) and the National Association of Women in Law (NAWL) filed as intervenors, partly because it was one of the first judgments to come down after the changes to the Divorce Act.
In the case, the father admitted to strangling the mother twice — once when their child was in her arms.
"We find the language in the original judgment very minimizing of the severity of strangulation in that incident in general," says Jo-Anne Dusel, executive director of PATHS. "There's quite a bit of research that shows that a woman who's been strangled has an exponentially higher risk of being killed by that partner."
In the original decision, the judge denied the mother's application to move back to her home province. The judge also expanded the father's parenting time, which was limited after he pleaded guilty to assaulting the mother.
Zaccour says one reason NAWL intervened in this case is because of the denial of the mother's request to move. She explains that most relocation applications they see are from women who followed their partners. In cases of family violence, these women can be left stuck in a location with little access to social or economic support once the couple separates.
NAWL also wanted to warn the court against gender bias when mothers are labelled as "intransigent" (unwilling to budge on an issue), "alienating" or "vindictive" for refusing parenting time with the father.
"Mothers may understandably be hesitant to facilitate contacts between the father and the child when the father has exhibited violent behaviours," read NAWL's intervenor factum in the case.
"The consequences of a parent's violence on parenting time with the child should be only attributed to the parent."
That appeal was dismissed.
Sarah feels she and her kids are more in danger now than they were when she was still with her ex. She describes "having that pit in my stomach that I don't know if they're going to come home" every time she has to hand off her children to him.
"There's nobody looking to make sure that he's dropping the kids off on time. There's nobody making sure that he's not mistreating the children while they're in his care," Sarah says. "There's no checks and balances. It's just: you have the [court] order. Follow it. Good luck to you."
According to the Canadian Femicide Observatory for Justice and Accountability, Saskatchewan had the highest provincial per capita rate of femicide from 2018 to 2022.
- Sask. has the worst intimate partner violence rate of any province. Here's what advocates say needs to happen
- Judge blasts Sask. domestic violence rate during murder sentencing in Saskatoon
There was a 24 per cent increase in all killings of women and girls in Canada from 2019 to 2022, according to the organization's report, with most of those being committed by a current or former partner, or another family member.
"I don't want my kids to be another statistic, and that's the trajectory we're currently on," Sarah.
Both women say being forced to have this continued contact with their abuser makes it difficult to move on and heal.
"I have moments where it's a dark, deep, miserable kind of hopeless feelings, where you just don't see a future," says Ottenbreit.
Survivors and experts say that courts and institutions recognizing and naming behaviour as abusive is important for holding perpetrators accountable and for survivors' healing.
"We need to convince these perpetrators that they don't have the right to behave this way and we won't tolerate them behaving this way as a society," says Katz. "Unfortunately, at the moment, they get the opposite message."
Both survivors and experts say there needs to be mandatory training for lawyers, judges, social workers and police officers on the dynamics of coercive control.
Keira's Law makes it so that sort of training will be established, but it doesn't make it mandatory for judges.
"The judges who sign up might be the ones that need it least," said Zaccour.
In Ontario, Bill-102 received Royal Assent on June 8, requiring newly appointed judges to have received this training.
Zaccour says that although the changes to the Divorce Act require judges to consider family violence in their decisions, there are no clear rules on what should happen if it is determined to be the case. She would like to see a presumption that if there has been family violence, the abuser would not get custody of the children.
Both survivors and experts would also like to see a unified family court.
"The family law system is cut off from the criminal law system. So even when you have the police involved, you still have to jump all through these hoops to get the criminal part into the family system," says Gurski.
Advocacy has made me feel like I have a voice. Being an intimate partner violence survivor, you are silenced every step of the way.- Brenda Ottenbreit
Kim Newsham, senior crown counsel for Saskatchewan's Ministry of Justice family law division, hopes the new family law screening officer pilot program in Saskatoon and Regina will make it more difficult for abusers to use the family court to continue their abuse. This is sometimes called litigation abuse.
The family law screening officers will review new family court applications to ensure all of the required documents have been filed and procedural prerequisites have been met. They will also screen for family violence, identify risk factors and warning signs. If family violence is suspected, the officer will guide people to appropriate community support.
Newsham says new provincial legislation also requires parties to attempt some form of dispute resolution outside of court before they can carry on with the family court application. Though, the effectiveness and safeness of this for victims of abuse has been questioned.
Ottenbreit, meanwhile, has been advocating for coercive control to be added to Canada's Criminal Code, and for the development of a national strategy for the prevention of intimate partner violence. On June 1, an act that supports the latter reached second reading in the Senate.
"Advocacy has made me feel like I have a voice. Being an intimate partner violence survivor, you are silenced every step of the way," Ottenbreit says.
"Don't be in silence, because silence makes you the victim. Talking and moving through it and being heard makes you feel empowered."
If you are experiencing intimate partner violence, here are some resources:
- Within Saskatchewan, call 2-1-1 to be directed to the help you need.
- You can also check out a list of support lines, services, programs, legal and other information on the 211 website — some of which is relevant across Canada.
- Saskatchewan 24/7 response and crisis lines:
- Prince Albert and area: 306-764-1011
- Regina and area: 306-757-0127
- Saskatoon and area: 306-933-6200
- Mobile Crisis 24/7 helpline: 306-757-0127
- Child abuse 24/7 line: 306-569-2724
- Government of Saskatchewan's self-help kits for representing yourself in family court.
- Kids Help Phone (national): 1-800-668-6868
ABOUT THE AUTHOR
