Sanctuary for the Abused

Wednesday, December 21, 2016

On Abuse, Shared Parenting, & the System


By Debbi Callander, Martin Dufresne, Janet Menezes and Ellen Murray

1. What is Joint Custody?

EM: The essence of custody is authority to make decisions about important issues for a child such as medical care. If custody is "joint", two or more persons share this authority. Joint custody does not mean that a child lives 50% of the time with each parent. The difference between sole and joint custody is not as stark as it may appear. Even a parent with sole custody can be limited in the decisions she can make (visiting times or non-removal from the jurisdiction can be specified by a court order). Furthermore, a parent with access rights is entitled to receive information from a child's school, doctor, and other important service providers.

There are variants of joint custody. With "full" joint custody, parents discuss and agree upon all important issues about a child. Their separation agreement will often provide that if here is disagreement they will mediate, with an option to go to court if disagreement persists. However, some joint custody agreements state that if there is disagreement after consultation that one parent (usually the "primary" parent with whom the child lives most of the time) can make the decision.

The Senate Committee has recommended that the Divorce Act be amended to remove the language of custody and access and instead require all divorcing parents file a "parenting plan". A "parenting plan" is an imprecise concept. It usually means a plan that sets out parenting rules (e.g., "The children will continue to attend Ryerson Public School.") and a dispute resolution process (e.g., mediation). However, it can simply set out the child's residential schedule and specify which parent shall make decisions if parents disagree.

2. What is mediation?

EM: Mediation is a process of dispute resolution. A mediator helps parties structure their discussion, consider alternatives and focus on mutually agreed-upon goals. A mediator does not have the power to make the decision for the parties if they do not agree. Mediation is not a regulated profession in Ontario. Anyone can call herself a mediator. However, there are training programmes and professional organizations for mediators.

Before mediation begins, the parties will sign a contract that sets out ground rules. It will specify whether mediation is open or closed (whether if mediation is unsuccessful, the mediator can give evidence in court about what was said in the process). Usually mediation is conducted between the parties without each party's lawyer being present. Mediation is not a substitute for legal advice. A woman should get legal advice before she mediates, so she knows what her legal rights are before negotiating.

3. What is your opinion on mandatory joint custody and parenting plans: Is joint custody a viable alternative for abused women in custody and access disputes? Why?

DC: The success of joint custody depends on key factors that are absent when there has been a history of abuse:

EM: Joint custody in a family in which there is spousal abuse is problematic for children. Some suggest that it decreases conflict; that is not my experience. A control-obsessed parent with joint custody can argue with more authority about issues in a child's life (e.g., can the child get counseling?) As for the parenting plan, one shortcoming is its' novelty as a legal construct. The word "custody" in a court order or agreement communicates to third parties (e.g., schools) who has the authority to make decisions about a child. These institutions will not take responsibility for legally interpreting a multi-page-parenting plan.

MD: Mandatory joint custody, quietly implemented everywhere, is a creation of the divorced men's lobby. Their goals: bring the State onside, terminate child support obligations, re-establish male control over women beyond separation and divorce, smear ex-partners as abusers, and generally make divorce a horrifying ordeal for the women they want to "punish." They aim their "rights" at children's best interests and at any entitlement and resources for primary caregiving parents. Any mandatory scheme will be especially hurtful for abused wives and children. Rebutting pro-Father presumptions is already proving an impossible burden, imposed on the most vulnerable parties. Wife battering will be swept under the carpet, or men will use so-called "therapy" or the promise thereof to trivialize past assaults and claim reform.

JM: This question is very difficult. To split children between parents is sometimes unfair to the child. How does the child benefit? There are some factors to take into consideration — school, friends, familiarity, and environment. When a Judge makes a ruling on behalf of the children to spend equal time with both parents this could have a negative impact or positive impact. When a woman leaves an abusive husband and still has to have contact with him because of the joint custody there are and can be a number of reasons it doesn't work:

1) The abuse could still continue;


2) The Father could abuse the privileges and not follow Court Orders — conditions in various Peace Bonds or Undertakings;


3) The difficulty this brings is too complex, for the children, the Mother, the School, the Courts, the police, the Probation Officer;


4) The children may not want it — they should be considered first of all, especially if they are old enough to understand; and


5) Men who abuse their partners can and will use children to control many situations, privacy, for one.
I originally wanted joint custody but now I am thankful that I did not get it. Because of my broken-ness, my husband could have used anything against me if I did not comply with the conditions of joint custody. This would also give him a reason to call me...contact me...control me...and because of the emotional abuse, I don't believe I could have handled the turmoil.

4. What are the pros and cons of mediation for abused women?

DC: Mediation does not work or breaks down when there is a history of abuse. Yet women agree to it because they fear costs will be assessed if they hold things up.

Tactics that corrupt mediation are not always apparent, like a certain look or gesture that will silence the partner.


Even when parties are in separate rooms, messages are transferred in language that is meaningful.


Victims are seasoned outside mediation not to challenge the abuser's agenda.

Mediation tempts victims to "compromise" needs and rights away to get it over with.
EM: A basic premise of mediation is that it involves two parties who can recognize his/her interest and bargain as equals to reach an agreement. A woman leaving a violent relationship fears abuse, and develops strategies, including compliance, to avoid it. Some abused women wish to mediate. Mediation can — in some circumstances—be quicker, less expensive and less traumatic than court action. If I had an abused client who decided to mediate despite the problems involved, I would recommend that the lawyers take an active role in the negotiation.

JM: Mediation is not suitable for women that have gone through abuse. The abuser's control can easily take over. I was frightened of my husband and would agree to almost anything he wanted. His overall body language scares me. It certainly would not be to my advantage to engage in this. I am afraid to see him, to hear him speak even when a mediator is present. I would be afraid that the mediator would not understand this or pick up on it. This information becomes defused when it is portrayed as a non-threatening exercise for the benefit of all involved.

MD: Mandatory mediation is also a creature of the men's rights movement. The premise is that fathers have absolute rights and have to be "happy" with the outcome. A father can start the process again whenever he gets unhappy. Abused women and children see their experience minimized, if not censored, in the name of "forgetting the past". Abusers have no difficulty manipulating mediation to their ends and locking themselves in their victims' lives, while avoiding accountability for their crimes, consequences of their minimal or abusive parenting and financial obligations to their children. No mediator can properly assess the intimidation, threats and previous broken promises underlying any "negotiation" with an abuser.

5. Given that feminists have noted that women do more than their fair share of the parenting work, isn't joint custody a way for men and women to share the parenting more equitably?

MD: Joint custody is about control, not tasks. Good fathers don't need to have their parenting legally-ordained, and egotistic men will not be pressed into decent caregiving by any law. One way to get men to do more parenting from the start might be to tie future entitlement to the actual work done before any break-up, to the real link created with the child(ren), as would a primary caretaker presumption. Joint custody does precisely the reverse, enshrining biology and guaranteeing the worst of parents equal "rights" to children.

EM: Joint custody is not necessarily about sharing work, but about sharing decision-making. Keeping control over a spouse is especially important to an abusive partner at the time of separation, and he will use joint custody as a vehicle to exert control, not to share work.

JM: For women that have gone through abuse, emotional or physical, the idea of equal parenting doesn't come into play. Some feminists might think differently, but when it comes to the safety of children, separating them from an abusive parent is all that really counts. Just because men father children doesn't mean that there good fathers and loving Dads. I think that mothers who have been abused and seen the impact on their children would gladly accept more responsibility when it comes to raising their children safely and in peace.

DC: The toxic parenting of an abusive spouse is not qualitatively equal to the parenting of a loving caregiver.

If father does not want more responsibility, he can put family or paid caregivers in place.

Parent relief is not effective if one is constantly worried about the children's safety.

6. What do you think needs to be done to shift public awareness and social policy issues about custody and access for abused women and their children?

MD: The goal should be to provide children and their caregivers with essential resources (safety, housing, child care, employment/income, autonomy, health services, etc.) instead of re-privatizing those needs and leaving women's and children's lot up to men's goodwill.

Raise awareness of abusers' behaviour in custody/access/mediation harassment.


Instead of romanticizing father-hood, really hold men accountable for their parental work (or lack thereof) and for intra-family violence.


Track assaults against women and children, holding the system accountable for negligence.


Label Male Lobby tactics and propaganda.


Challenge the tactical use by men of "abusers therapy", "mother substitutes" and misogynist "syndromes".
EM: Research about the effects of joint custody on women leaving violent relationships and their children must be available to everyone, including professionals who are influential in policy making and decision-making for separated families.

DC: All services require comprehensive training on the impact of violence in intimate partnership.

This training must come from frontline agencies so that it reflects the reality of women's lives.

Tools are needed to track and assess the effectiveness and accountability of services to abused women and their children.

All parties need to endorse the Emergency Measures list of the Cross-Sectoral Violence Against Women Strategy Group, in which women are telling the Province of Ontario what they need to prevent further murders and remove obstacles to the flight from violence.

JM: This is a very sad subject for me. I lost custody of my son to my abusive husband. I became very ill with chronic depression and my husband used this against me. Although I had legal counsel, it did not help. My husband should not have won custody. The impact that the abuse has had on my son is very sad. My husband had money, a house, was able to give generous gifts. The service providers in my life at the time did not want to be involved — not my doctor, the shelter, the hospital, social workers, the school, or the police.

PUBLIC AWARENESS IS A MUST. Educate the service providers, have strong protocols for the Justice system in dealing with Domestic Violence, provide education in Domestic Violence in schools, Colleges, and Universities. Custody and Access is sometimes looked at with indifference.

Judges, Crowns, and Defence are skipping through these cases when quality time and assurance for the safety of children should be taken into high regard. There are long-term effects as a result of the decisions made by the so-called professionals who do not understand the pain caused by wrong decisions — my relationship with my children will never be the same.

The decisions made never took into consideration the emotional abuse my husband and the children's father caused. The system failed me. In order for the Public to know what is really happening behind closed doors, abused women need to be able to speak openly in any and all public forums to share how the system fails us and our children.


Debbi Callander (DC) is the Legal support worker/women's advocate for Rosewood Shelter and the Sexual Assault Centre of Simcoe County. A member of the OAITH Lobby committee, she is also a single mother and a survivor.

Martin Dufresne (MD) is a profeminist activist based in Quebec City. Long involved with Montreal Men Against Sexism, he monitors Male Lobby activity, notably the so-called "fathers' rights" movement and "alternatives to justice" for wife batterers and child rapists. He is a co-founder of FIVERS (Feminists against Intimate Violence Empowerment, Resistance and Support), an international Internet discussion list dedicated to ending sexist violence. (To join, e-mail: fivers@yahoogroups.com).

Janet Menezes (JM) is a survivor of woman abuse. She is currently a member of the Accountability Committee of the Woman Abuse Council of Metro Toronto.

Ellen Murray (EM) is a partner in Murray & Gregory and practices primarily in the field of family law. She currently serves as a Dispute Resolution Officer in the Superior Court of Justice. She is a member of the Legal Aid test case committee and the Advisory Board for the Barbara Schlifer Clinic. She has worked and lobbied on issues concerning abused women throughout her career.

Editor's note: Each contributor was asked the following questions, with the exceptions of #1&2, where only Ellen Murray was asked to provide legal definitions
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IN THE U.S.A. - report all verbal, emotional, physical abuse of the co-parent to your attorney and the judge.  Report any slandering of you as well.  And push for SUPERVISED VISITATION if the co-parent does this.  Push for 'CONTEMPT OF COURT' orders every single time Child Support is 24 hours late.


This article mentions the male as the abuser, your abuser may well be female.

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shared by Barbara at 12:13 AM


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3 Comments:

I wish I read this 4 years ago when I agreed to Joint Custody through Mediation...which was a disaster. The ex just got away with winning a court order to stop paying child support and split everything down 50/50...I now have to pay big money to counter...I will not engage in any dialogue with this abuser.

4:44 PM  

MD can you try to imagine how hard it is for a father in the legal system when the mother is the narcissist? Your opinions do not consider this scenario. If it is hard to get parenting time/abuse of mediation priviledges etc away from an abusive father it is enormously harder to get it away from an abusive mother. From my experiences, mothers can do no wrong in the court system and is a reason fathers need more rights there. What needs to be done is more careful judgement of character in the process ..towards both the men and women...instead of the wham bam custody is done process that happens. But this will always be tricky and nearly impossible with our overloaded and, for good reason in some cases, overly careful system

8:59 AM  

Oh my God. This is my life. And sadly I am a so-called "success" story. I HAVE sole custody because our family doctor reported my husband for child abuse, CPS demanded supervised visitation, and our custody evaluator told the judge he suspected my husband had ASPD. But even so - the pro-joint custody ideology in our area is so strong that the court-appointed therapist has imposed what amounts to de facto joint custody on me "for the children's good." So I have to consult with my and my son's abuser about everything, see him several times a week, etc, etc.

At the moment the issue is exactly the one you raised: this man who violently abused our son is demanding the right to have veto power over whether he gets therapy and who his therapist will be. Hard to imagine. It seems as crazy to me as giving a rapist the right to say which doctor his victim gets to go to. But if I say anything about it I get pious speeches about how important it is for parents to avoid conflict.

Hello? Last time I checked I never hit anyone. And I'm pretty darn sure that my son remembers all the times his dad screamed at me that if I told anyone about the child abuse he'd divorce me and spend every penny we had making sure I never saw the kids again. And I know for sure that my son remembers the summer we had to spend living in the battered women's shelter. So what message exactly is this ridiculous charade this giving to him other than that there's a massive double standard and dads can do whatever they want and get away with it?

I feel so surrounded by hypocrisy and denial sometimes that it's hard to breathe. And I hate the fact that even after I risked my life and sacrificed so much to leave he STILL has so much power over us. I can't even speak to my own son about the abuse -- abuse we both clearly remember happening to us. And now it seems I can't even get my son therapy. Sometimes it feels so hopeless. I feel like a prisoner.

Thank God for anonymous comments! I really needed to say this. I would never dare to on a forum that wasn't anonymous because I'd be afraid he would somehow find it and use it to get me in trouble with the family court. This messed up system has to change! Women have to have a right to protect their children from people who beat and abuse them!

The one bright spot in it all is seeing that my kids GET IT. My son's class studied Martin Luther King Jr and the Civil Rights movement in school, and he came home and said: "Mom. Daddy and you are just like the black and the white people in Martin Luther King's time. You have to do all the work and he gets all the money." That really cracked me up. As they say, wisdom out of the mouths of babes! Maybe if we can just hang in there we can raise a generation of boys who will finally put a stop to the violence and abuse.....

9:36 PM  

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