2.0 Literature review on the impacts of family violence

2.1 Definitions

2.1.1 Family violence

Section 2 of the Divorce Act now provides the following definition of family violence:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct – and includes:

  1. physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
  2. sexual abuse;
  3. threats to kill or cause bodily harm to any person;
  4. harassment, including stalking;
  5. the failure to provide the necessaries of life;
  6. psychological abuse;
  7. financial abuse;
  8. threats to kill or harm an animal or damage property; and
  9. the killing or harming of an animal or the damaging of property

The Divorce Act defines a “family member” for the purposes of considering the effects of family violence including a member of the household of a child of the marriage or of a spouse or former spouse as well as a dating partner of a spouse or former spouse who participates in the activities of the household (s.2). As such, the term family violence encompasses child abuse and neglect, domestic violence (IPV or spousal violence), as well as abuse perpetrated by a person such as a father-in-law or a brother-in-law.

2.1.2 Domestic violence or violence against women

The term family violence is increasingly found in legislation like the Divorce Act as a broad term for violence in the family, and includes abuse of children, parents and partners. The term domestic violence is often used to identify situations of family violence involving adult intimate partners who live together. IPV refers to violence that occurs in the context of an intimate adult relationship, which may include dating relationships as well as co-habitation or marriage. These terms are all used for abuse in same-sex and heterosexual relationships.

Although domestic violence may be either an isolated incident or bi-directional, the research in this field mainly focuses on repeated abuse and patterns of abuse and control that may endanger victims and create significant physical and psychological consequences. Some authors are critical of terms like family violence and IPV as they do not capture the disproportionate nature of the violence which impacts women and children to a greater extent than men (Jaffe et al., 2020). Many agencies that serve abused women use the terms violence against women (VAW) and the broader term gender-based violence (GBV) to reflect the gendered nature of domestic violence.

Throughout this document, the term family violence is intended to be inclusive of all forms of abuse in the family, while the terms spousal, domestic or intimate partner violence signify abuse within the context of the intimate adult relationship. This document focuses primarily on violence between adult intimate partners (domestic violence) and child exposure to partner violence, though other forms of family violence such as child sexual abuse are discussed more briefly.

2.1.3 Children exposed to domestic violence

Children exposed to domestic violence refers to a child seeing, hearing, being told about, or seeing the aftermath of abuse and coercive control against an intimate partner who is their parent. Exposure to domestic violence has been recognized as a form of emotional child abuse (Jaffe et al., 2011). When children live in a home in which one parent is abusing the other, they are very often aware of the abuse and profoundly affected by it, even if they have not directly observed acts of violence. Parents may not be aware that their children can see, hear or experience the IPV that is occurring.

2.2 Domestic violence: A gendered and intersectional issue

Domestic violence is a prevalent and gender-based concern in Canada. Police data show that 30% of all victims of police-reported violence are victimized by an intimate partner (including spouses and dating partners) (Conroy, 2021a). Child exposure to domestic violence is among the most common forms of child maltreatment substantiated by Canadian child protection services (e.g., Fallon et al., 2020, 2021).

Canadian police-reported data indicates that women are identified as victims in 79% of domestic violence cases (Conroy, 2021a). Moreover, domestic violence is the most common type of violence experienced by women, according to Statistics Canada (Conroy, 2021a). Similar patterns exist in other countries, although reports of the estimated prevalence of domestic violence vary due to differences in definition, data sources, and sampling, as well as differences in cultural, social and economic conditions (World Health Organization [WHO], 2013). In studies from across the globe, men perpetrate more physical and sexual violence than women for every form of violence. Most of this violence happens at home (WHO, 2021).

There continues to be debate within the research literature and among practitioners and other members of the violence prevention community about using official crime statistics versus self-reported surveys as tools for determining the incidence and prevalence of family violence. Family violence is an underreported crime (Burczycka, 2016) and not all family violence constitutes a criminal offence. To gain a better understanding of experiences of gender-based family violence, since 1999 Statistics Canada has regularly undertaken a large telephone survey of spousal violence, the most recent one being conducted in 2019 (Conroy, 2021b). Data from the most recent General Social Survey, in 2019, show that 80% of domestic violence victims say that the violence they experienced was not reported to the police (Conroy, 2021b). At one level, rates of victimization for women and men look similar (4.2% of women vs. 2.7% of men reported being victims of an act of IPV in 2019: Convoy, 2021b). However, the additional contextual information identified important gender patterns in the severity, impact, and lethality of violence. Notably, these findings revealed that:

Intersectional analysis recognizes that individuals experience many forms of inequity, and that multiple, intersecting and reinforcing factors need to be considered in family violence cases. For example, language barriers, fears of deportation, and cultural differences may make it difficult for women of colour to disclose spousal violence (Dasgupta, 2007). Data from Canada’s Survey of Safety in Public and Private Spaces document that Indigenous women are considerably more likely to experience family violence than their non-Indigenous counterparts (Statistics Canada, 2022). Differences in rates of victimization can be understood as a product of colonialism (Rizkalla et al., 2020). Sexual minority women and sexual minority men (Jaffray, 2021), women with disabilities (Savage, 2021), and ethno-cultural minority women (Cotter, 2021) also all experience family violence at higher rates than non-minority populations.

Domestic violence often does not end with separation. Instead, the post-separation period is one of heightened risk for continued and/or increasing violence (Brown et al., 2014). Multiple studies bear out the challenges of post-separation violence, with interviews of mothers and children (generally between the ages of 8 and 14) documenting fathers’ continued physical and verbal abuse and denigration of mothers, high levels of distress and fear in children over ongoing exposure to partner abuse, and fathers’ use of contact with children as a pathway to continue to try to control mothers (Hardesty & Chung, 2006; Harrison, 2008; Holt, 2015; McInnes, 2004; Morrison, 2015; Thiara & Humphreys, 2017).

At the extreme end of the continuum, victims experience death at the hands of their intimate partners, which is termed domestic homicide. Cases of domestic homicide may involve the killing of family members as well as partners, including children. There are extensive studies on children killed in the context of domestic violence (Adhia et al., 2019). The killing of children is often motivated by a father seeking revenge against their mother for leaving him (Scott et al., 2020). Apart from being killed themselves, children can also be victimized by losing parents to domestic homicide (e.g., homicide, suicide, incarceration), witnessing an attack, or being exposed to the aftermath (Alisic et al., 2017; Jaffe et al., 2012; Jaffe et al., 2017; Jenney & Alaggia, 2018). Children can suffer from extreme traumatic stress from these incidents, and often do not receive the necessary supports to address their trauma (Alisic et al., 2017; Mertin, 2019). For that reason, children are often referred to as the hidden victims of domestic homicide (Reif & Jaffe, 2019).

2.3 Definitional complexities and nuances

Having set out basic information about the prevalence of domestic violence, it is useful to return to considering some of the complexities of understanding domestic violence and assessing its severity. There are several aspects of the definition of family violence that are likely to be of considerable interest to lawyers, judges, and other family justice professionals. In this section, we consider these nuances. First, we consider behaviours that may constitute a “pattern of coercive or controlling behaviour.” Second, we consider research and theory that help establish a nuanced understanding of acts of physical aggression and typologies of domestic violence. We then describe two forms of domestic abuse that are receiving increasing attention in the literature and among practitioners: technology-facilitated abuse and litigation abuse. Next, we consider indicators of severity and risk for domestic homicide. Finally, we reflect on differentiating domestic violence from high conflict.

2.3.1 Pattern of coercive and controlling behaviour

One particularly important issue for proper implementation of the 2021 amendments to the Divorce Act is understanding what constitutes a pattern of coercive and controlling behaviour often referred to as “coercive control”. Coercive control is a pattern of abusive behaviours used to control or dominate a family member or intimate partner.

Coercive control is less a separate or single type of abuse and more a way to understand the effect of a range of abusive behaviours and their impacts (Stark & Hester, 2019; Walby & Towers, 2018). The Power and Control Wheel (Pence et al., 1993; see Figure 1), which has been a critical guide for the field for many years, illustrates this understanding. The Wheel identifies a pattern of actions used by an abuser to control or dominate an intimate partner, which is why the words “power and control” are in the center of the Wheel. The behaviours that are the spokes and rims of the wheel, such as economic abuse, intimidation, minimizing, denying, blaming and physical and sexual abuse, are used by the abusive person to maintain the pattern of coercive control. Understanding patterns of abuse is also an important counter to “gaslighting” (extended psychological manipulation of a victim that leads them to question the validity of their own thoughts and reality) by perpetrators of abuse, who often embrace an incident-based definition of domestic violence to disconnect their actions from one another in time and space, thereby allowing them to minimize their violence as “not that bad” and to support victim-blaming (Morrison et al., 2021).

Figure 1: Power and Control WheelFootnote 1

Figure 1: Power and Control Wheel
Figure 1: Power and Control Wheel – Text version

Figure 1 depicts the Power and Control wheel. The wheel is divided into eight sections with a small green circle in the center, and a purple outer rim that surrounds all eight sections. The outer rim has the phrase “VIOLENCE” at the top with the word “Physical” to the left and “sexual” to the right. The center circle at the middle of the eight sections has the phrase “Power and control” on it. Of the eight sections four are on the left under “physical” and four are on the right under “sexual”. Under “Physical” starting from the top left moving down it says (1)“Using coercion and threats”, (2)“Using economic abuse”, (3)“Using male privilege”, and (4)“Using Children”. Under “sexual” starting from the top right moving down it includes (1)“Using intimidation”, (2)“Using emotional abuse”,(3) “Using isolation”, and (4)“Minimizing, denying, and blaming”.

Understanding and interpreting behaviours that may constitute coercive control requires consideration of context: What is the significance of the action to both the perpetrator and victim? What is the effect of the action? Understanding this context also requires consideration of the power of each person in the relationship: What social, economic, and/or physical power does one partner have over the other? The context) of coercive controlling behaviours is one in which the abuser creates, attempts to create, or behaves in ways that result in the disempowerment of victims and restrictions on their space for action. The repeated nature of coercive control has ongoing impacts in terms of removing a victim’s autonomy, often entrapping them in the relationship, and causing distinct emotional, psychological, economic and physical harms (Chambers, 2021; Katz, 2016; Stark & Hester, 2019).

Patterns of coercive control in abusive relationships can be highly individualized. This is because with coercive control a perpetrator exploits a victim based on privileged access to use of force, resources, information and/or sources of influence and power over a victim. For example, an abuser who is partnered with someone who lacks immigration status in a country may use disclosure of status as a threat to create fear and gain control over a victim. Other coercive tactics that might be used in a similar way include: threatening or engaging in acts of violence; threatening to reveal a secret the victim deems shameful; threatening or engaging in behaviours that “trigger” a victim’s trauma; or behaving in ways that highlight, or take advantage of, a victim’s disability, mental health challenges, history of childhood abuse or other prior victimization.

A consideration of intersectionality is essential for understanding coercive control, as individuals’ identities strongly influence the ways in which a victim may be coerced and controlled. In immigrant and refugee communities, widely noted modes of control of the victim include: forced marriages; isolating the victim; refusal to allow attendance at English or French as Second Language (ESL or FSL) classes; denying permission to drive a car or work; retaining travel documents such as a passport or permanent resident card; and threats to have the individual deported to the country of origin (Chaze et al., 2020). In families from collectivist cultures, it is crucial to understand the role of extended family members living either in a joint residence with the parties or elsewhere who may participate in or endorse the coercion and control (e.g., Ragavan & Iyengar, 2020).

Common patterns of coercive and controlling behaviours are outlined below. These may be present individually or in combination (Chambers, 2021; Crossman & Hardesty, 2018; Crossman et al., 2016; Hamberger et al., 2017; Lee et al., 2020; Myhill & Hohl, 2019; Sowter, 2020; Stark, 2012; Stark & Hester, 2019). Forms of harm may be perpetrated in person, virtually or through interactions with third parties and institutions (Douglas, 2018; Nonomura et al., 2022). Coercive control may also be extended to children (see section 3.3 on co-occurring abuse).

Violating a sense of physical safety, or creating a sense of fear for self or loved ones

Coercively controlling behaviours include those which undermine a victim’s sense of physical safety for self, children, other family members, friends or work colleagues. Examples are physical abuse, stalking (including online stalking, such as monitoring a victim’s location), physical intimidation, threats, destroying things belonging to the victim or children, and making “off-hand” comments about harm. These behaviours can be perpetrated during a relationship or following separation. Ways to violate a victim’s sense of physical safety following separation, and especially in the context of prior domestic violence, include breaking no-contact orders (including using children as a justification) and using third parties to threaten ex-partners. In the context of collectivist cultures, extended family members may be recruited by the abuser to threaten the victim.

Violating sense of emotional safety or creating a sense of serious distress for the emotional safety of self or loved ones

Coercive control does not necessarily involve fear for physical safety. Coercively controlling behaviours include those which cause a victim to be constantly (and justifiably) anxious about their emotional safety, or the emotional safety of their children. Examples include: continually humiliating, degrading or belittling a victim; threatening to share a victim’s personal information in ways that embarrass or harm them; hacking a victim’s online accounts, impersonating a victim online and threatening repercussions for leaving the relationship. Since the Divorce Act amendments, courts have increasingly considered the role of online harassment within the context of family violence and coercive control.Footnote 2 Although most coercive control involves threats to the safety of the victim and/or children, abusers also use threats of suicidality as a means of coercive control, and in particular, to try to keep the victim in the relationship.Footnote 3

In the context of separation, a victim’s emotional safety can be violated with the use of legal tactics that create high levels of distress at important moments. An example is an abuser initiating legal actions that may require an immediate response at a time when a victim begins a holiday period with the children. Violations of emotional safety often cause victims to be emotionally and physically exhausted, often to the point of “giving up” or being unable to continue to act with autonomy.

Creating conditions of subordination, dependency or entrapment in a relationship

Coercive control may involve behaving in ways that create or intensify power imbalances in the relationship, making an intimate partner dependent on and subordinate to the perpetrator. Coercively controlling actions could include creating economic dependency, reputational dependency, and dependency in social relations.

Coercive control may also involve creating conditions that entrap a victim in the relationship. Associated behaviours may include isolating a victim from sources of support by using behaviours such as controlling or directing communications with a partner’s friends and family, taking or breaking cell phones, surveilling or disabling social media accounts, destroying relationships with potential supports, or cutting off phone service.

An intersectional lens is critical in assessment since dependencies are often based on a victim’s social identity, which may create additional barriers when seeking access services or resources. For example, dependency and isolation may be heightened by a victim’s geographic location (e.g., rural), social class (e.g., homeless), race (e.g., Indigenous, Black, racialized), status in Canada (e.g., immigrant status, refugee status or non-status can result in changed power relations in the couple, loss of social support, and lower socio-economic status after migration), or language skills (e.g., lack of English or French language fluency to interact with the police, social workers, courts and shelters or other interveners, or dependency on the availability and effectiveness of the interpreters who represent them and their experiences to these authorities). Individuals with diverse sexual orientations or genders may be vulnerable to being outed. For Indigenous people, there may be added barriers associated with living on reserve or in smaller and more remote communities where it is difficult for a victim to come forward and maintain their privacy (i.e., because police and other service providers are known to the abuser) and where disclosure of abuse might require moving away (resulting in possible loss of connections with community and culture). For new immigrants, other behaviours that may create conditions of subordination may include refusing access to ESL or FSL classes, isolating a victim from their faith or cultural community, or preventing a victim from seeking and maintaining employment.

Following a separation, attempts to make a partner subordinate and dependent may include convincing a partner that they lack credibility or competency as a parent, making false claims that the other parent kidnapped or abused the children, reporting or threatening to report the other parent to Child Protective Services (CPS), or creating fear that any actions taken to assert rights will be punished with actions that harm the relationship between the victim parent and their children.

Violating the autonomy of another person by controlling their daily activities

Coercive control may involve actions that restrict the activities of the other person. Examples include when a perpetrator micromanages the daily activities of a victim with behaviours such as dictating the clothing a partner wears, limiting access to household utilities or food, or restricting access to a cell phone or to transportation. Coercive control may also involve withholding, or severely limiting and controlling access to money or credit, or creating dependence by denying access to information.

Following a separation, coercive control may include blocking access to money, continuing to delay settling finances in court, or failing to pay agreed upon or ordered child support. Coercive control may also involve stalking and unwanted intrusion into a victim’s activities, the effect of which is to disrupt the victim’s daily activities and put them constantly on edge.

Decision-making control can also focus on parenting and restricting the ability of a partner to make their own parenting decisions. When coercive control is focused on parenting, a perpetrator may act strategically to continually undermine a victim’s parenting or make threats against the child or parent-child connection in ways that disrupt that person’s ability to parent. These actions are coercively controlling as they create fear in the victim parent for the physical or emotional safety of children. The perpetrator also may threaten to have CPS remove the children from their victim parent’s care.

Making a victim doubt the reality of their experiences or undermining their credibility

A particularly pernicious form of coercive control involves convincing a victim, and others around them, that their experiences and reactions are not based in reality; this may make a victim doubt their experiences of having been abused and their impact. Such behaviour is sometimes referred to as “gaslighting.” Examples include constantly calling or making a victim out to be “crazy,” constantly blaming a victim for their abuse, making light of the abusive behaviour, or denying the impact of abusive behaviour.

Following separation, a perpetrator may minimize the impact of abuse by continually insisting that the “past is in the past” and that it is “time to move on,” or that any failure to do so is “crazy” or a sign of mental illness rather than an understandable reaction to past abuse. In some cases, a perpetrating parent may turn to religion or to extended family to blame the victim for creating “conflict” or “problems” in the relationship, or for failing to be sufficiently supportive of the marriage.

Coercive and controlling tactics are often used in combination to amplify each other

For example, fear of an abuser taking away access to necessary financial resources may make it easier for that abuser to demand sexual compliance. As another example, an abuser might be able to stalk a partner or gather information about a partner more easily as a result of destroying a victim’s social credibility by making that victim out to be overly emotional, overly dramatic, or “crazy” (sometimes misusing clinical terms such as “personality disordered”). The nature of coercive control has victims constantly “walking on eggshells.” Victims are often worn down and exhausted. They often feel that their abuse is all-encompassing, and their partner is omnipresent (Hayes & Kopp, 2020; Stark, 2009).

Not seen as abusive by most perpetrators

It is important to appreciate that in most cases, the perpetrator of coercive and controlling behaviour does not see their behaviours as being motivated by power and control motives or as abusive. Rather, abusers often perceive themselves as victims of their partner or a biased justice system. They may feel that certain things are “due” to them or that the only way to achieve their goals is to ensure that everyone is “doing their part” (i.e., what is desired by the person using coercive control). In their re-interpretation of events, a person who is behaving in a coercively controlling way often disregards obvious indicators that their behaviour is causing distress, blames the victim for their distress, or sees a victim’s distress as a “tactic.” Recognizing patterns of coercive control often requires consideration of a series of events over time by someone who can take a more objective view and consider the pattern of behaviours, the differences in each partner’s power and “space for action,” the effect of the behaviours, and the impact of these actions over time.

2.3.2 Targeting of unique vulnerabilities in immigrant families

The category “immigrant” is not a homogenous one due to differences in factors such as country of origin, age, ethnicity, creed, language ability, educational levels, and the category of admission to the country. Religion is central in the lives of many immigrants, and faith-based leaders and organizations may play an important role in many immigrant families (Statistics Canada, 2018).

The perpetrator’s threats to have a sponsored spouse deported to the country of origin, or withholding of the victims’ passport or legal documents are forms of abuse and control of women in immigrant communities. These women may be afraid to report abuse in Canada as that would upset their families “back home,” or may cause retribution to relatives in their countries of origin (Chaze et al., 2020; West Coast Legal Education and Action Fund, 2012). Immigrant women may be concerned about the negative impacts on their children if they report abuse to the police (Tam et al., 2016). They may not be aware of the role played by CPS and their mandate and power, or alternatively, fear its power to take their children away. Canadian police, immigration, and CPS are becoming more sensitive to the vulnerability of women to family violence. For example, Canada Border Services Agency might not actually deport an abused woman and her children. However, a victim’s isolation and lack of knowledge may make such threats seem very credible.

It is important to understand the impact of harmful cultural practices as a form of coercive control that amounts to abuse. Some practices could also be indicative of child abuse. Certain gender norms common within some immigrant families, for example, disclosure of instances of “son preference” in the family, should lead to further probing of its implications for the status of a girl child or wife in the family (Postulart & Srinivasan, 2018). A family justice professional needs to contextualize the practice of son preference and how it amounts to abuse or neglect by denying a female child health, education, recreation and/or economic opportunities. Son preference, in extreme cases, may lead to the birth of a girl being seen as a liability by certain ethnicities (Postulart & Srinivasan, 2018). A family justice professional should recognize that harmful practices such as forced marriages, female genital mutilation, and demands of dowry are forms of abuse.

2.3.3 Patterns of physical violence

Understanding physical aggression

While the definition of family violence in the Divorce Act includes coercive control, financial abuse, threats, and psychological abuse, instances and patterns of physical violence continue to be very important concerns for the family courts.

While each case is unique and there are limitations to models or typologies of domestic violence, it is helpful to be aware that many cases can be understood as reflective of common patterns that may share certain characteristics. Frederick and Tilley (2001) identified the following five patterns of physical violence in intimate partner relationships. However, the authors emphasized that any act of physical aggression and victimization must be evaluated in the larger context of multiple factors.

Physical abuse as part of a pattern of coercive control

Frederick and Tilley (2001) recognized that physical violence and threats can be a recurrent aspect of a relationship and part of a larger pattern of intimidation, control and isolation that puts the victim at a power disadvantage, severely compromising the victim’s independence, self-esteem and safety. While the violence may be an ongoing aspect of the relationship, it may also be more episodic. What is significant is that there is one partner, most often the male in a heterosexual relationship, who is the perpetrator, and the violence results in the perpetrator having emotional control over the victim. In this type of case, the propensity to use violence often increases with the threat of separation and may continue long after separation. These types of cases are often characterized as coercive controlling violence, though it is important to recognize that there may be coercive controlling behaviour with little or even no physical assaults.

Perpetrators of this type of violence tend to deny their acts or minimize the effects of their behaviour on victims and their children. Coercive controlling violence is more frequently represented in the experience of victims who access police, criminal court, and shelter services compared with those victims who do not access these services. These couples often eventually separate. Often, the perpetrators of this type of violence also abuse their children.

Violence within and outside of an intimate relationship

Some people, most often men, are violent in a range of situations, both within the family and elsewhere. These are people who use violence in situations inside and outside of the family to resolve conflict or to satisfy aggressive impulses. They may, for example, assault their associates or the police, as well as their intimate partners. Intimate partners of individuals who are generally violent most often fear their partner and experience the physical abuse perpetrated by their partner as part of a pattern of coercive control.

It should be appreciated that many cases of family violence, including coercive controlling violence, involve perpetrators who are not violent elsewhere. These perpetrators may present outside the home as deceptively calm.

Acts of physical violence, with no pattern of coercive control

Frederick and Tilley (2001) recognize that there are cases where the violence is not part of a pattern of power or control. In these cases, the perpetrator normally recognizes the behaviour as inappropriate and expresses remorse.

Some of these cases may be characterized as “situational couple violence,” where the violence is a result of an escalation of conflicts or verbal argument, without one partner being the dominant or a primary aggressor (Johnson, 1995; Johnson & Ferraro, 2000). The violence in these cases is less severe and generally less frequent than in situations of coercive controlling violence.

Johnson and others (1995; 2000) report that this is the most common type of IPV, and that in many of these cases, the couple does not separate, though when they do, violence usually ends with separation. Although women may be injured in cases of situational couple violence, and children harmed from being exposed to the conflict, women are not psychologically controlled as a result of this type of violence. Another term that is used for this type of situation is “common couple violence.”

This category includes acts of violence which only occurred around the time of separation, such as after discovery of an act of infidelity but where violence was not present in the relationship prior to separation and did not continue after separation (sometimes called “separation engendered violence”). Often, after an escalation of outrage and anger physical violence is typically perpetrated by the partner who is being “left.” The violence may not develop into an ongoing pattern of violence but stops after one or a few isolated incidents at the height of the separation. Such isolated acts of violence may be very disturbing to victims and are criminal offences, but their context needs to be taken into account when assessing its significance for post-separation parenting. These comments are not intended to minimize separation violence as separation is considered a risk factor for lethal violence.

Physical violence and mental incapacitation

Mental illness may contribute to use of violence. For perpetrators who have some mental health impairment, their use of violence in a relationship may be linked to their mental health issues and may be treatable. This includes violence that is associated with psychotic or paranoid reactions due to mental illness or “drug-induced dementia.”

Many perpetrators of family violence have histories that include childhood trauma or intergenerational abuse, for example, from Indian Residential Schools. An understanding of the life history of a perpetrator may help in the development of a treatment plan to reduce the likelihood of recurrence of abuse, if treatment is available and the perpetrator is willing to engage.

However, Bancroft (1998) notes that an abusive partner who has a mental health problem may have issues requiring multiple intervention strategies. Further, treating the mental health problems alone may not eliminate IPV. Bancroft argues that a perpetrator of IPV who has co-existing mental health problems may require an approach like the one needed for the substance abusing batterer; that is, both problems need to be specifically addressed in interventions.

Use of physical violence in self-defence or as an act of resistance

Self-defensive violence is physical aggression used in response to an abusive partner’s violence or threat of violence. The use of violence by this person is not part of an attempt to gain control in the relationship, but rather is a response to attempt to protect oneself or one’s children, or gain control in a particular, violent situation. Although men sometimes act in a restrained, defensive way in a violent situation with a female partner, it is more often the female partner who acts in self-defence. In some cases, victims of coercive violence may be traumatized and their response to an act of violence may seem disproportionate to a specific assault, but is understandable in the context of the whole abusive relationship.

As discussed above, there are also cases of situational couple violence, where both partners may initiate physical violence at different times, or use of violence in self-defence may alternate, depending on the conflict. In such cases, asking about who initiates violence tends to be less helpful than asking about which member of the couple uses violence to end the conflict (i.e., which partner can force the other into submission). There is increasing recognition of some women’s violence as self-defence in the context of a history of domestic violence and coercive control (Lysova & Salas, 2020; Tyson, 2020).

2.3.4 Technology-facilitated abuse as an increasingly common concern

Lawyers, judges, and other professionals should also be aware that an increasingly widespread form of violence is harassing, controlling and denigrating victims through the use of technology (Douglas et al., 2019; Harris & Woodlock, 2019; Henry et al., 2020). Perpetrators can disrupt the lives of victims through phones, computers and gaming platforms, in a variety of settings including at home and in the workplace (Douglas et al., 2019; Harris & Woodlock, 2019; Henry et al., 2020). The ability to constantly communicate with their victim allows a perpetrator to take away a victim’s sense of safety as the violence goes beyond geographical and spatial boundaries. Perpetrators may employ tactics like hacking, surveilling, tracking, impersonating, harassing, spamming, distributing images and false information against their victims, and controlling their physical environment through hacking of household control devices (Douglas et al., 2019; Harris & Woodlock, 2019; Henry et al., 2020). Similar to other forms of domestic abuse, these tactics affect the psychological well-being of victims (Henry et al., 2020; Hoffart & Kardeshevskaya, 2022).

Technology-facilitated abuse might be part of any form of coercive control. For example, a perpetrator may cause a victim to fear for their physical or emotional safety by stalking them online or by posting or threatening to post embarrassing or harmful material. Conditions of subordination may be created by refusing to allow access to online banking or by controlling access to the Internet. A perpetrator may, for example, cause a victim to doubt the reality of their experience by using the Smart Home function to arbitrarily raise or lower heat or turn lights on and off or by making small changes to a victim’s online accounts. A perpetrator may also violate the privacy and emotional well-being of a victim by hacking into their personal accounts, or using drone surveillance.

2.3.5 Litigation abuse

Separation often does not lead to the end of family violence, especially if there is coercive controlling behaviour. Separation opens opportunities to continue control and abuse through the family court process, even if the physical violence ends. Researchers have described the inappropriate use of family court proceedings as “litigation abuse,” or legal bullying. Litigation abuse has been defined as “a malevolent course of conduct involving the use or threatened use of legal and other bureaucratic proceedings by fathers to obtain, or attempt to obtain, care time with their children far more than their involvement with them prior to separation” would warrant (Elizabeth, 2017, p. 187).

If there has been coercive control during the relationship, litigation abuse is likely to be a post-separation pattern of coercive control more commonly perpetrated by men. This conduct may involve actions such as bringing frivolous motions, timing legal processes to cause maximum disruption, not providing financial information, refusing to follow court orders, or seeking review soon after an order is made. The family court process can be used to prolong contact and extend coercive control over survivors after separation (Douglas, 2018; Elizabeth, 2015; Laing, 2017; Nonomura et al., 2021a, 2022; Watson & Ancis, 2013). Constant litigation exacts a high emotional and financial cost for victimized parents.

Perpetrators may choose to be self-represented despite having the resources to afford a lawyer, which can heighten opportunities for abuse by berating the other parent in court and through cross-examination (Zeoli et al, 2013). Men are, for example, more likely than women to decide to self-represent because they want to have the opportunity to cross-examine their former partners (Birnbaum et al., 2018).

One common form of ongoing abuse by those who have perpetrated domestic violence is withholding financial resources despite having the means to pay support; perpetrators may do this by avoiding taking the steps necessary to resolve financial issues, by being deceptive about their assets or income, by providing confusing and contradictory financial information or by refusing to make reasonable interim financial arrangements. Paying support means giving up control of how the funds will be spent, which may have been an aspect of control in the relationship. There may be other motives such as using finances as a way to try to get victims to return to the relationship. Many victims ultimately walk away from the conflict or negotiate a safer parenting agreement in exchange for giving up proper support (Colucci v Colucci,SCC, 2021). A fight over support may be an avenue for litigation abuse, forcing the case to drag on without resolution or enforcement (Douglas & Nagesh, 2021; Natalier, 2018; Ward, 2015).

It may be challenging to determine whether litigation abuse has occurred, but courts may take account of this form of family violence in making parenting decisions. For example, in Barendregt v Grebliunas (2022),the Supreme Court of Canada upheld a trial decision that allowed a mother to relocate with her children in light of the father’s perpetration of domestic violence, which included abusive litigation conduct, such as filing an affidavit that included a nude “selfie” of the mother, which served no legal purpose but was intended to embarrass her.

Single judge case management of proceedings may help the court to identify and address litigation abuse (Martinson, 2010). Consequences of a finding that there has been litigation abuse may include a financial award to cover part or all the victim’s costs in family litigation. It is also possible to apply to the court to have the perpetrator of litigation abuse be named a “vexatious litigant,” and have further access to the court process restricted. Judicial officers and lawyers should be educated to be able to both identify and address litigation abuse (Douglas, 2018; Nonomura et al., 2022).

2.3.6 Severity of domestic violence and risk factors for lethal domestic violence

In considering incidents and patterns of domestic violence, judges, lawyers and other professionals cannot stop at the question of whether family violence occurred, but instead, must consider multiple dimensions of severity, impact, and the likelihood of recurrence and escalation.

Some violence is severe, injurious and controlling with pervasive impacts on the lives of victims. It is important to recognize that, in some cases, domestic violence is a “life and death” matter. Domestic Violence Death Review Committees allow for better understanding of the most severe cases of domestic violence through investigating contextual factors that may have led to the homicide. Some of the most commonly identified risk factors for domestic homicide include the following:

These risk factors increase not only the likelihood of intimate partner death, but also the risk of death of children in the family, since children are at risk for violence if their mother is also at risk for violence (Hamilton et al., 2013; Scott et al., 2020). The potential harm of family violence places an increasing demand on family court professionals to engage in screening cases for family violence as well as seeking more comprehensive risk assessments. Rather than relying on experience and intuition, there is the need for more structured interviews, and use of risk assessment tools. Risk assessment tools allow service providers to better identify the level of risk for future domestic violence, which generally includes the likelihood and severity of this violence (Campbell et al., 2016). Lawyers may conduct their own risk screening and assessment or refer out to other court-related professionals or community partners with this expertise.

In addition to conducting risk assessments, it is critical to consider whether and how such assessments are shared. A recent study of a coordinated family violence court in New Brunswick highlighted that, even in this specialized court context, more than half of the cases where the offender could be classified as “high to extreme risk” (using assessment tools) resulted in peace bonds, conditional discharges, or withdrawn charges. Without the implementation and sharing of these assessments across the “silo divide”, the level of danger these abusers pose to their victims remains unknown to Crown prosecutors and judges (Neilson et al., 2022).

A victim’s perception of risk is also an important consideration when conducting these assessments (Campbell et al., 2016). Although not always an accurate prediction of future violence, their perceptions, when used in conjunction with the results of a risk assessment tool, can increase predictive accuracy (Messing & Thaller, 2013).

2.3.7 Differentiating high conflict from family violence

In the family justice literature, “high-conflict” couples are identified as those who have high levels of hostility and often require lengthy family court involvement to resolve disputes post-separation. Family violence issues are present in many high-conflict separations, though certainly not all (Birnbaum & Bala, 2022). This distinction is important because not all conflict can be considered violence, and conversely, violence should not be euphemized as conflict. When analyzing high conflict separations, it is important to consider whether both parties are significantly contributing to or escalating the conflict, or whether one is more child-focused while the other is driving the conflict to maintain power and control in the relationship. It is also important to recognize that there are family violence cases in which there appears to be no conflict as victims will often accede to an abuser’s demands to protect their or their children’s safety or due to the impacts of trauma.

Unlike family violence, which is defined in the Divorce Act s.2(1), high conflict does not have a legal definition, but it is a helpful concept that is used by judges, lawyers, mediators and mental health professionals involved in the family justice process. The use of the term reflects the reality that most separations are not high conflict. Most separating parents can make and adapt parenting plans and resolve economic issues outside the court system, though perhaps involving professionals like mediators, counsellors or lawyers. The parents in these lower-conflict cases may experience stress, dislocation, and feelings of anger because of the separation, and often have disagreements about parenting, but they are able to communicate effectively and jointly problem solve. They can keep their children out of their disputes and support their children’s relationship with the other parent.

It is important to appreciate both the distinctions and the overlap between cases that may be characterized as “high conflict” and cases where family violence is the central concern (Archer-Kuhn, 2018; Birnbaum & Bala, 2022). All the considerations discussed above about IPV need to be considered (i.e., coercive control, nuance in understanding physical violence, technology-facilitated abuse, litigation abuse, and severity). While the contexts of both high conflict and family violence raise significant concerns for children, there can be important differences in the nature and most appropriate approaches to these cases.

An increasing number of high-conflict cases in Canadian family courts involve claims of parental alienation, claims by one parent that the other is manipulating or influencing a child to reject the other parent (Bala et al., 2010; Fidler & Bala, 2020; Paquin-Boudreau et al., 2022). Although it is important not to minimize the seriousness of genuine alienation, there are some who argue that many parents, especially mothers, who raise concerns about family violence are making false or exaggerated claims of abuse to allow them to alienate their children and exclude the other parent from their children’s lives. There are challenging issues related to proof of claims of both alienation and family violence, but it should be appreciated that denial and minimization of IPV by genuine abusers are more common than false or exaggerated claims of IPV by alleged victims. While alienation is increasingly being raised in Canadian family courts, courts only validate these claims in a minority of cases where they are raised, and recognize that the desire to limit contact with the other parent is often an appropriate protective response (Bala et al., 2010; Paquin-Boudreau et al., 2022). The need for proper assessment and investigation into claims of both alienation and abuse is essential to ensure that appropriate parenting arrangements are aligned with the unique dynamics and needs of each family.

Cases of high conflict may involve pre-separation acts of relatively infrequent and minor physical aggression such as slapping, throwing items, or pushing that does not cause injury to or create fear in the other partner, and these may be cases where there is a roughly equal balance of power (Fidler & Epstein, 2008). If there are continuing family violence concerns, power is very likely to be unequal.

If there are family violence concerns, especially if there has been coercive control or violence is continuing after separation, the primary response must focus on the family violence and safety concerns. In high-conflict situations, the types of parenting arrangement may vary, but in family violence cases, violence must be considered in making parenting arrangements (Fidler & Epstein, 2008). In many high-conflict cases, safety planning does not need to be the focus of courts and other professionals in making parenting plans, whereas safety planning and risk management must be a priority in families where there are ongoing concerns about violence (Fidler & Epstein, 2008; Jaffe et al, 2008). This focus on family violence aspects of a case is consistent with the need to protect the safety of victims of family violence and their children, and with the Divorce Act s.16(2), which now provides that in making decisions about a child’s best interests, a court “shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”

As will be discussed further, often the major challenge facing professionals and the courts is determining the credibility and reliability of the parents. What is the history of the relationship and what is presently occurring? In cases of family violence, victims may also be suffering the effects of trauma and may present as poor witnesses, even if they are honestly and reliably describing what they and their children experienced (Epstein & Goodman, 2018).