SECTION 1: INTRODUCTION
In 2016, racialized people comprised 22.3% of Canada’s population, 70% of whom were born outside Canada (Statistics Canada, 2017b). According to Statistics Canada (2022b), immigration was the primary driver of population growth between 2016 and 2021. Individuals from racialized groups make up over half of the immigrants in Canada, and that number is projected to increase by 2036 (Statistics Canada, 2017a; 2019). According to Nichols et al. (2019), nearly 80% of newcomer youth identified as racialized in the 2016 census.
Based on Canada’s obligations under the United Nations Convention on the Rights of the Child, children have the right to participate in the judicial and administrative proceedings that affect them. The judge’s role in FV cases is evolving. Judges now play a part in ensuring that judicial dispute resolution appropriately reflects substantive equality principles. In the words of the former Chief Justice of Canada, Beverley McLachlin, a judge’s role is to exercise an “informed impartiality,” which requires an introspective, open, and empathetic approach and an appreciation of the social context within which the matters at issue arose. This “informed impartiality” is especially needed in child abuse and domestic violence cases (Martinson & Jackson, 2012).
Although the 2019 amendments to the Divorce Act have been primarily guided by legal professionals, researchers, and health professionals at the forefront of working with separating and divorcing families, including experts who work in FV (Canadian Heritage, 2019), there are still significant gaps in knowledge grounded in children’s experiences. A notable gap is research about young people who have witnessed or experienced high conflict or intimate partner violence (Callaghan et al., 2018), particularly studies using a child-rights, intersectional lens. Much of the available research has been grounded in professional experience and, more recently, parent experiences (Archer-Kuhn, 2018b). Young people can offer a wealth of knowledge in a context where adults attempt to make child-rights-based decisions to ensure the best outcomes.
Incorporating children’s narratives and social contexts
Although FV is experienced in every culture and society due to patriarchy (Razack, 2003), racialized immigrant children living with FV are underrepresented in academic literature (Herrero-Arias et al., 2021; Overlien, 2010). While there is abundant literature on the impact of FV on children, there is scant literature on the impact of FV on racialized immigrant children in Canada or elsewhere. This lack of understanding of racialized immigrant children’s experience of FV can lead to a misrepresentation of their perspectives and an ineffective response by way of services that support these children.
This report centres the voices of racialized immigrant youth on the violence they have witnessed and experienced in their childhood to provide new knowledge grounded in their experiences. Emerging from our research findings, there is an urgent need to focus on the impact of FV on racialized immigrant children and, based on their recommendations, develop services that respond to their needs. We also argue for modifying and expanding the principle of the Best Interest of the Child to suit the context of FV experienced by racialized immigrant families.
In the last decade, there has been a growing awareness in the family justice system of the harmful effect of spousal violence, not only for direct victims, but also for children. It is estimated that roughly one quarter of all separations and divorces in Canada involve spousal violence. Exposure to spousal violence is the fastest-growing category of child abuse cases reported to child welfare agencies (Bala et al., 2007).
We continue to see family court decisions which assume that someone who is violent and abusive towards an intimate partner can be a good parent. Many justice service professionals, including judges, assume that FV targeted at a parent does not impact young children. This assumption is held by other service providers as well. We continue to see court cases where it is assumed that if a parent has not directly abused a child, their violence does not reflect on their parenting ability. The courts and justice system professionals often expect a victim of abuse to “move on” and develop a co-parenting plan to work cooperatively with their abusive former partner.
There is an increasing concern about child homicide in the context of parenting cases, previously known as custody cases. Child advocates are calling for more effective prevention and more appropriate responses from the family justice system. A Private Members Bill C-233, also known as Keira’s Law, which calls for more education and training about domestic violence for federally appointed judges, was passed in the Senate on April 18, 2023, and sent to the Governor General and received Royal Assent on April 27, 2023 C-233 (44-1) – LEGISinfo – Parliament of Canada. The Attorney General of the Province of Ontario introduced Bill – 102. On June 8, 2023 Bill 102, the Strengthening Safety and Modernizing Justice Act, received royal assent in the Ontario Legislature. It made it mandatory for all provincially appointed judges and justices of the peace to be educated and trained in intimate partner violence, coercive control, and sexual assault as a condition of judicial appointment.
On February 9, 2020, four-year-old Keira, whose parents were involved in intense parenting litigation, was found dead with her father in Milton, Ontario, at the bottom of a cliff CBC News, 2023) and was undoubtedly the victim of a murder-suicide. Her mother advocated for the enactment of this Law, in the hope that other tragedies could be prevented.
Historic legislative reform and objectives
On March 1, 2021, significant amendments to the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) and the Ontario Children’s Law Reform Act, R.S.O. 1990 c.C.12 [CLRA] came into force. These historic legislative amendments substantially changed the legal relevance of FV, with both acts providing an evidence-based definition of FV. Federal family laws had not been substantially updated in more than 20 years.
These legislative amendments had four key objectives: promote the best interests of the child, address FV, help reduce child poverty, and make Canada’s family justice system more accessible and efficient.
The legislative changes aimed at reducing children’s adverse childhood experiences (ACE) and introduced a new approach for family courts to focus on reducing family conflict. The dual challenge of reducing ACEs and reducing family conflict demands adequate screening for family violence, followed by all service professionals working with families and children to understand the root causes of FV, assessing the risk, and understanding the context of systems and their cumulative impact on children and their families.
Children’s participation in defining their own best interests
A child’s right approach to determining the best interests of children is an important consideration. A child’s rights approach views the concept of a child’s best interests as ensuring the full and effective enjoyment of all their rights and promotion of the child’s holistic development. Canada has ratified various international conventions and participates in international reporting to the Committee on the Rights of the Child. According to the United Nations Convention on the Rights of the Child (UNCRC) Committee statement, “an adult’s judgment of a child’s best interests cannot override the obligation to respect all of a child’s rights under the Convention,” which include the child’s participation rights. UNCRC is one of the core international human rights instruments and aims to promote and protect the rights of children all around the world. UNCRC defined child as a human being under the age of 18 and advanced the understanding of how the children are viewed and treated globally i. e. as human beings with distinct sets of rights instead of passive objects of care.
On May 18, 2022, Canada concluded its periodic report to the Committee on the Rights of the Child. Many important questions were deliberated during this reporting period: Would Canada consider establishing a federal ombudsperson to address children’s rights? What was being done to ensure greater awareness raising on the rights of children? What was being done to end the large proportion of children living in poverty in Canada? Why are children from migrant and Indigenous populations disproportionately affected by poverty? (Statistics Canada, 2022c). Canada, as a state party, reported that it views the Convention as an anchor for improving children’s rights across the country at the federal, territorial, and provincial levels. Even after 30 years, the UNCRC remains a vital, living body of law, guiding the international community to fulfill children’s rights better.
Coercive control framework
The amendments to the Divorce Act and CLRA adopted the framework of coercive control. The social science literature recognized Coercive control as a feature of intimate partner relationships since early 1980’s. However, it is a relatively new term in the arena of FV legislation. The dynamics of coercive control are challenging due to their insidious nature. The invisible impact of non-violent abusive and controlling behaviour is often more harmful than visible physical injuries because of the pattern of abusive and/ or controlling behaviour and its cumulative impact, which continue to impact victims and their children long after separation.
There is a clear connection between the best interests of the child and the children’s safety. It is essential to note the cyclical nature of abuse—child abuse is not linear. It is essential to hear children’s voices to assess all risk factors regarding the pattern, frequency, severity, and escalation of abusive behaviour. Research demonstrates that the risk of lethal violence is particularly high following parental separation, especially within the first few months (Hotton, 2013). A report from Statistics Canada indicated that from 2007 to 2011, the risk of women being killed by an ex-spouse was almost six times higher than the risk of being killed by a current legally married spouse, with jealousy and frustration being the motives behind the homicide (Sinha, 2013). This risk exists for adult victims and children (Hamilton et al., 2013; Olszowy et al., 2013).
Between 2002 and 2017, there were 390 domestic homicide and homicide-suicide cases in Ontario. Of those 390 cases, 280 (72%) were homicides, and 110 (28%) were homicide-suicides. The 390 cases resulted in a total of 543 deaths. Of the 543 deaths, 433 (80%) were homicide victims, and 110 (20%) were perpetrators who committed suicide or were otherwise killed (e.g., shot by police). Of the 433 homicide victims, 349 (81%) were adult females, 40 (9%) were children, and 44 (10%) were adult males. Of the 110 perpetrator deaths, 107 (97%) were adult males (Ministry, 2021). This statistic is specifically relevant in understanding the ongoing need to obtain critical information about the existence and escalation of risk, risk management, and safety planning.
The impact of FV on children is evident on many levels, economically, socially, physically, emotionally, and intellectually, and there can also be issues of mental health, addiction, and substance abuse. Given this, including children’s voices, considering their identities and realities and protecting them is paramount.
The participants in this study shared their knowledge and insights about being marginalized as children and navigating socio-economic marginalization as racialized immigrants.
We have discussed the research outcomes and recommendations from racialized youth in support of comprehensive and multisectoral approaches to prevent and address the impact of their exposure to FV and ACEs.
Our research reveals the importance of giving children a voice to express their views and preferences about FV and its impact on just outcomes. There is a growing realization that children’s human rights must be recognized, which begins with treating them as holders of their legal rights. By improving the understanding of intersectional vulnerabilities of racialized youth and the impact on them of multiple systems, we can strengthen prevention and improve responses.
Our research endeavours to provide the necessary social context that would be useful for judges and other justice service professionals dealing with family violence cases involving children experiencing or witnessing abuse in racialized immigrant families.
Structural and systemic violence as a factor in enumerated Best Interest test:
Family courts in Canada are tasked with determining the best interests of the child, which includes considerations of whether the FV is directed toward the child or whether the child is directly or indirectly exposed to FV (Divorce Act, R.S.C., 1985, 16 (4)). The amendments to the Divorce Act introduced the enumerated Best Interest test and took a two-pronged approach to FV: Analysis of what constitutes the harm and what can be done to reduce such harm to children.
The best interests of the child test also requires consideration of the child’s cultural, linguistic, religious, and spiritual upbringing and heritage (Divorce Act S. 16 (3) (f)). The amendments to the Divorce Act are focused on the reduction of children’s ACEs. However, too little knowledge exists on racialized immigrant children’s experiences of FV to correctly interpret the child’s Best Interest principle in their context.
Based on the above considerations, this study centres the voices of racialized immigrant youth on the violence they have witnessed or experienced in their childhood to provide new knowledge grounded in their experiences. Emerging from our research findings, we argue that it is urgent to recognize children’s rights and value their input while dealing with FV cases. The findings provide insight into the agency of participants in dealing with FV, along with the severe negative impact on their overall life. Based on the recommendations shared by young people, we argue for developing holistic, trauma-informed, and culturally appropriate services that respond to children’s contexts of FV.
