Post-separation violence – let me begin with considering the subtle flaws of the phrase itself.
It is often thought that separation from a violent, abusive spouse signals the end of violence. The prefix ‘post’ suggests that the separation itself is a permanent state of liberation. But what frequently happens in reality is rather different – a tenuous reprieve from violence before a return to the situation. The return to violence is driven by factors that hugely constrain (or rather, erase) any choice in the matter (Humphreys and Thiara, 2003; Thomas, Goodman, and Putnins, 2015). These factors are varied – the pressures of housing and income, social pressures to reconcile ‘for the children,’ the often harrowing experience of navigating the legal landscape, the intimidatory effects of harassment and stalking, and sometimes the simple human desire to hope for change (associated with the fact that abusers often vow to reform, before reverting to violence).
Those who cope with family/domestic violence and those who try to support them know that the phrase ‘post-separation’ can be misleading. They know also that the abuser’s violence and persistent efforts to maintain and restore coercive control may not only continue but also escalate, with lethal consequences for the abused partner, long after a legal separation has been completed (Hotton 2001). Keeping these realities in mind, I will try an alternative phrase ‘separation-associated violence’ (SAV), although that phrase too may be misleading through its retention of ‘separation.’ I shall, however, use it as a temporary handle for discussion in the limited context of this post.
Post-separation abuse is a serious issue in Canada. According to a 2005 Juristat report, in 2005, 49% of women who had a previously violent relationship said that the violence either happened during or continued after separation. For more than one-third of these women, the violence increased in severity or frequency after separation. A report prepared in 2009 by Stats Can found that on average every six days a woman in Canada is killed by her intimate partner. In 2009, 67 women were murdered by a current or former spouse or boyfriend. Children are often the unintended observers of violence between spouses, and in 50% of cases of post-separation violence a child is witness at least once. (Legal Information Society of Nova Scotia).
In order to understand the causes of SAV one must understand how contextual factors operating at the level of families and social-legal systems influence the experience of the person seeking a way out of abuse and violence. At the level of the family, how do family pressures compel women to return to situations of violence? At the systemic level, how do legal processes, the decision making in family courts (around child custody, alimony and child support payment, and visitation) influence separation processes and the experiences of women therein? How do legal processes and legal actors enable abusive partners to retain, regain and reinforce control over their (former) partners?
The pressures of family
The complexities of seeking help and trying to leave a violent partner are exacerbated when there are children involved. For women, it may be extremely challenging to take their children with them when they try to leave the violent home. For instance, when these children are males, extended families will prevent the women from taking them along. Unlike daughters, sons are prized in patriarchal, patrilineal conjugal families. Taking older male children into shelter is a problem.
Women may be coerced and/or feel obligated to not separate the children from their father or from their paternal family. For immigrant women seeking to return to their home countries, taking their children with them out of the country can be near to impossible. In some situations, even where the abusive relationship has ended, the continued contact between grandparents and grandchildren can facilitate abuse, as for instance when a mother leaves her child with the grandparents for the day because she must work and cannot afford the daycare. Consider the evidence from these interview vignettes below.
Especially if they are married, there will be pressure from not only just the husband, grandparents and the in-laws for sure but her own parents will say, oh you need to make this relationship work. You need to be able to take care of the kid. Think about the kid. Think about you’ve been married for this, this and that, period. What are you going to do? Alone a girl can’t do anything in this society. I mean you can here but they the in-laws and parents compare it to back home. So it’s not just a pressure from your own partner but your own parents, extended parents, the family, friends, your own in-laws. So the girl, she is trapped.
With this particular client there was again that pressure of violence but not only by her partner. She had left the partner but still the abuse continued by the mother-in-law and the extended family of her partner. What complicated that case is that they have a child together, always more complicated but also in this one the extended family had access to the child and she worked. So essentially everyday she had to drop off her child to her in-laws house and so essentially was that at risk on a daily basis of still being exposed and experiencing the abuse by her in-laws even though she had already left her partner. [Link]
The pressures of legal arrangements (and how abusers use the legal system to maintain control on their victims)
The legal system itself may increase the risk of SAV for women, and more so for those who share children with abusers. This enhanced risk is related to the risk of violence as a result of sufferers’ enforced contact with abusers, in the initial phase of trying to obtain and serve no-contact orders and later on as the parties go through the legal systems for deciding on custody and ‘co-parenting’ and thereafter in cases of joint legal custody and so-called ‘co-operative’ co-parenting (Hardesty and Chung, 2006; Zeoli, Rivera, Sullivan, and Kubiak, 2013).
SAV via no-contact orders
The processes of applying for, obtaining, serving and obtaining review of no-contact orders may also generate variable levels of risk related to the variable level of contact with abusers necessitated by the different processes. It is worthwhile to examine how these differences may relate to SAV Alberta. This section draws on information from the Today Family Violence Help Centre in Edmonton, Alberta (see p 12 of the Centre’s booklet ‘It Starts Today’) and from the Centre for Public Legal Education Alberta (CPLEA) to examine the differences amongst Emergency Protection Orders (EPOs), Queen’s Bench Protection Orders (QBPOs), Restraining Orders, and Peace Bonds and how these may relate to SAV in the Albertan context.
The diverse types of no-contact orders are somewhat similar in that they draw on very specific (restrictive?) ideas of what constitutes ‘family,’ ‘family member’ and ‘family violence’. E.g. QBPOs do not apply in dating situations, or if the abuser and sufferer do not live together and have no children (CPLEA on QBPOs). The different types of order vary in their associated urgency, situational applicability, and the processes and timelines of applying for, obtaining and serving them to abusers and having them reviewed. In the context of this post, the variations of serving process (i.e. serving notice of application and serving the final order) merit attention for their varying relation to risk posed by contact between sufferer and abuser.
For example, first consider how an EPO differs from a QBPO (CPLEA on EPOs; CPLEA on QBPOs). The abuser does not have to be notified in advance of the application for an EPO but has to be notified of the application for a QBPO. EPOs are associated with situations of an urgency higher than of those requiring a QBPO. With an EPO, the police serves the copy of the EPO to the abuser. With a QBPO, the applicant, i.e. the sufferer of violence, is tasked with serving notice of application and serving the issued QBPO for it to take effect. The alternative (to avert the obvious risk of doing it onseself) is to have a peace officer or third party server serve the QBPO papers.
When you make an application for an Emergency Protection Order (EPO), the abusive family member (known as the Respondent) does not have to be given advance notice of your application. This is called an ex parte application. However, an EPO is not enforceable until a copy of it is given to the Respondent, so that he or she knows what rules to follow. When an EPO is issued, a police officer (or another third party like a process server) will be responsible for giving a copy of it to the Respondent. (CPLEA)
Now consider the restraining order, in which situation the sufferer bears the onus of (1) doing the paperwork for the application and (2) the mandatory serving of the copy of the application and the order (once issued) to the abuser. The judge may use discretion and allow application without notifying the abuser, when the situation is urgent and high risk. Restraining orders, unlike EPOs and QBPOs, cannot be used to remove the abuser from a residence where the abuser has the legal right to stay.
Applying for a restraining order does not involve the police and does not require an investigation or police file, or a court-filing fee. You will have to prepare all the necessary paperwork yourself. It may be a good idea to seek a lawyer to help you in the remainder of the restraining application process. This involves:
• Applying in the courtroom before a Justice of the Court of Queen’s Bench;
• Serving the Order and Declaration/Affidavit to your partner, the “respondent”. The Order must be received to take effect; and
• Registering the Affidavit (proving that your partner received the Order) and Order at your local police station.
In exceptional cases, you may be able to apply for a restraining order without serving the abusive party with a copy of your application. This is called an ex parte application and a judge may grant your request to apply for a restraining order without notifying the abusive party if the situation is urgent or your safety is at risk. If a restraining order is granted without notice to the abusive party, there will be a review hearing date set to give the abusive party a chance to respond to the order. (CPLEA)
One must keep in mind that once issued, a no-contact order still needs to be served to the abuser to take effect. With restraining orders that have been issued, the sufferer faces the task of finding a friend, family member, or process server to give the restraining order to the abusive party. One must ask here how easy it is to manage the choices of (1) finding a friend or relative willing to incur risk to serve the order (2) placing a friend or relative at risk during and after the serving process.
It is also important to keep in mind that when ex parte applications are allowed, there will be a review hearing that allows the abuser to respond. That hearing may well become the occasion for blatant and subtle forms of intimidation.
SAV and the courts
Conflict of mandates and decision making between courts (e.g. civil, criminal and family) can expose women to the risk of continued violence. This is detailed in the following interview vignette which describes how the decision of the family court to permit the father access to children undermines the purpose of the Emergency Protection Order (EPO).
So it’s quite possible that a woman has – has been granted an EPO, an emergency protection order [obtainable in civil court; issued by a judge or a justice of the peace], so that the perpetrators would not be able to contact her in any way or not come into the house with the children. The children are on the EPO as well. Okay. So he cannot go to the schools, to the daycares for the family to stay safe. However, he has a right to access his children if he’s the biological father. So he can go to family court and follow up on that right and would be granted supervised or maybe not even supervised access to the children…So she would be in contempt of court if she does not allow, a contempt of family court if she doesn’t allow him to see the children. Right?
There are conflicts of assessment and decision making between courts and child protective services (Child and Family Services, CFS hereafter) regarding the level of safety and unsafety in a home. The courts may send women and children home whereas CFS may move the children out again. This situation exacerbates confusion and dislocation for already traumatised women and children.
If the court said that ‘you have to go home’ and the home was deemed unsafe by Child and Family Services, they wouldn’t go home and the courts can’t force them. They just like — they can’t force the police not to arrest somebody. They can’t. So the court may send the child home but the Child and Family Services would re-interview and remove the child again… So even if the court said it’s safe and within a couple of days it was unsafe, Child and Family Services would again identify this unsafe and remove the child.
Experts have noted that court decisions may have implicit, unexamined biases and set up the conditions for separation associated violence (Czapanskiy, 1993).
Despite limited empirical evidence, courts generally assume that children fare better when they are able to maintain relationships with both parents after divorce (Amato & Rivera, 1999). Therefore, joint custody and cooperative coparenting relationships are encouraged for the sake of children (Hardesty and Chung, 2006).
The processes of custody negotiations are associated with violence and threats to women personally or via their children. Abusers may use the legal system and its processes to stalk victims, to issue threats and intimidation, and to harass their former partners and subject them to financial abuse through paying exorbitant legal fees. The payment of child support becomes a handle for the abusers to maintain control and keep their former partners submissive and compliant in the face of threats that are both physical and non-physical (e.g. withdrawal of child support, threats of filing charges against mothers that they are unfit parents, etc). The overall effect is a ‘climate of fear’ that compels women to compromise with abusers over questions of custody and support (Hardesty and Chung, 2006). In cases where courts order co-parenting, women are forced to remain in a situation of physical threat, as also are their children, who continue to suffer the effects of witnessing and experiencing the violence in the home. In addition, they may themselves suffer the harms of harsh, abusive parental treatment.
In situations where co-parenting is obviously not working, courts may order mediation as a form of dispute resolution. However, as Ellis, (1989) points out, mediation may well be a flawed measure that does nothing to redress the inherent inequality of power and resources amongst the parties that come to the table. The idea of a ‘dispute’ pre-supposes at least a rough sort of parity amongst the disputants. In cases of abuse, there is a profound lack of such parity amongst the abuser and the victims. Mediation is then a mis-directed effort that does nothing to alter the dynamics of abuse and control.
Hardesty and Chung (2006) note that some courts may recognize the shortcomings and indeed hazards of co-parenting and mediation and may order supervised visitation “as one option courts use to allow father/child contact while ensuring safety. Supervised visitation involves father/child contact in the presence of a third party (e.g., court-appointed professional), who is responsible for ensuring the safety of children and parents.” It is by no means certain that supervised visitation is a safe solution – for example, when the abusive parent is put in charge of finding and hiring the visitation monitor, who is to control for quality of supervision? Plus, what of the conflict of interest therein? See the guidance from Maxwell & Oehme (2001: Link) on measures to assess behaviour of abusers during supervised visitation.
Finally, there is the question: how do gender biases of women’s lawyers affect their chances in court? To what extent, do women’s own lawyers encourage them to be compliant and ‘friendly” and accept court-ordered arrangements even when these pose a risk to the women and the children? To what extent do judges arrive at decisions around custody, visitation and mediation based on their biases that the mothers in front of them are ‘uncooperative’ ‘angry’ and ‘unfair’ in asking for safe distance from their abusive exes? (Czapanskiy, 1993).
What should be done?
Safety first. This thinking should underpin all approaches that seek to prevent or halt SAV. Legal decision making should be informed by the findings of objective, accurate and comprehensive assessment of risk of violence faced by women and children (Jaffe, Crooks, and Poisson 2003). Women should be regularly screened in the during- and post-divorce period to identify for the risk of continued violence. This screening should be tactfully and sensitively phrased so that women feel free to voice their experiences and at the same time are not turned off by heavy handed probing and unthinking use of trigger words in questions such “Have you been abused?” Tact and the tactical use of gateway questions to delve into experience of abuse and violence is important. Women may have normalized their experience of violence and may not see themselves as abused. Screening should also adopt an intersectional approach – being sensitive to the experiences of immigrant women (who may be rendered compliant because of fear of deportation), diverse language needs, to the experience of LGBTQ+ persons (who may fear outing), of those with physical and mental health issues (who may fear the effects of loss of financial support that enables access to medication).
Children should also be assessed for their exposure to violence in the context of parental separation. Risks faced by children are diverse – primary experience of violence, exposure to violence, risk of kidnapping. Assessment of risk to women and children should inform court recommendations around parenting and visitation and should be clearly communicated by evaluators, protective services, guardians etc. It must also be kept in mind that any plan for parenting and visitation, however well informed by risk assessment, may run counter to protection orders and safety needs of women.
Depending on individual needs, parenting plans can range from general to very specific, including how the children will be exchanged (e.g., in a public place, with a third party present, through a third party with no parental contact), how parents will communicate about the children (e.g., via telephone or e-mail, not in person), and expectations for fathers during visitation (e.g., no alcohol/ drug use) as well as what will happen if the abuser violates the parenting plan (e.g., visitation revoked until return to court). Parenting plans can also include age-appropriate safety strategies for children (e.g., go to a neighbor’s house if father is intoxicated during visit). Some abused women have indicated that developing a court-approved parenting plan helped them establish and maintain boundaries as their family system changed following divorce (Hardesty and Chung, 2006).
A careful consideration of violence-related risk should also inform court decisions around ordering parenting education. These programs may have less than no use or relevance in cases where one parent has been the victim of abuse. These are not cases of ‘conflict’ that can be sorted out through standard education courses. These courses aim at enabling ‘cooperative co-parenting’ and assume that while there may be conflict there is no abuse in the home. In cases of abuse and violence, what could work better is a range of interventions that focus on identifying and changing the behaviour of abusive partners.
It is worth noting the value of providing simple and accurate information to women undergoing separation and trying to navigate the complicated legal system. In this context, The Family Law Information Project for Abused Women (FLIPAW) of the Legal Information Society of Nova Scotia created a simple language guide ‘to help women by giving them access to relevant family law information: information that examines child custody and access issues from a domestic abuse perspective and addresses the risks and challenges faced by women and children during the post-separation period.’ You can access the ‘Safely On Your Way: Post-separation Abuse’ guide here.
Community agencies that work with abused women, abusive men, and their children (e.g., social services, health care system, churches, school system) must adopt a coordinated response around information sharing and intervention based on that information. Such coordination would enable agencies to keep track of abusers, to act in time to protect women and children from further harms, and most importantly to educate each other and help each other stay abreast of developments in their respective and shared fields of action. Legal professionals in particular should understand (1) the gendered aspects, patterns and risks of domestic violence (2) intimate partner violence is not just ‘conflict between parents’ as it affects children grievously and finally (3) uninformed and biased decisions around custody, parenting and visitation have the power to prolong women’s suffering long after a divorce has been finalised (Jaffe, Crooks, and Poisson 2003).
Academic References (*all other resources are hyperlinked in line)
Czapanskiy, K. (1993). Domestic violence, the family, and the lawyering process: Lessons from studies on gender bias in the courts. Family Law Quarterly, 247-277. (Link)
Ellis, D. (1989). Marital conflict mediation and post-separation wife abuse. Law & Ineq., 8, 317. (Link)
Hardesty, J. L., & Chung, G. H. (2006). Intimate partner violence, parental divorce, and child custody: Directions for intervention and future research. Family Relations, 55(2), 200-210. (Link)
Hotton, T. (2001). Spousal violence after marital separation. Canadian Centre for Justice Statistics. (Link).
Humphreys, C., & Thiara, R. K. (2003). Neither justice nor protection: women’s experiences of post‐separation violence. Journal of Social Welfare and Family Law, 25(3), 195-214. (Link)
Jaffe, P. G., Crooks, C. V., & Poisson, S. E. (2003). Common misconceptions in addressing domestic violence in child custody disputes. Juvenile and family court journal, 54(4), 57-67. (Link)
Maxwell, M. S., & Oehme, K. (2001). Strategies to improve supervised visitation services in domestic violence cases. Violence against women online resources. (Link)
Thomas, K. A., Goodman, L., & Putnins, S. (2015). “I have lost everything”: Trade-offs of seeking safety from intimate partner violence. American journal of orthopsychiatry, 85(2), 170. (Link)
Zeoli, A. M., Rivera, E. A., Sullivan, C. M., & Kubiak, S. (2013). Post-separation abuse of women and their children: Boundary-setting and family court utilization among victimized mothers. Journal of family violence, 28(6), 547-560. (Link)