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Domestic Violence and Power Imbalances in the Context of Separation/Divorce Settlement
per the Family Statute Law Amendment Act (2006)
of the Province of Ontario, the merits of an application to the courts, for
custody or access to a child, shall be determined on the basis of the best interests of the
child. Also included in the Act is that the court shall consider matters of
violence or abuse against the applicant’s spouse, parent of the child, any
child or other members of the household.
however that this statute relates to the determination of violence and/or abuse
issues as a factor in considering the best interests of the child and is not
directed to the actual process of determination per se. In other words, matters
of domestic violence and power imbalances are not required considerations in
terms of court processes.
the new regulations (April 30, 2007) of the Arbitration Act require the
arbitrator to consider the presence or impact of domestic violence, power
imbalances and safety considerations on the actual process of arbitration. Here,
the arbitrator is required to consider these matters as they might impact the
actual arbitration process and safety of the parties and their children. To this
end, there are rules in place regarding screening and requiring Family
Arbitrators to be trained in screening and understanding matters related to
domestic violence and power imbalances.
Ministry of the Attorney General, for the Province of Ontario indicates that there
is no prescribed method of screening for family arbitration and no prescribed
screening report but does suggest that the training should follow the principles
set out in the Ontario Association for Family Mediation's Policy on Abuse.
legislative changes in the Province of Ontario requiring screening and training,
speak to the concern that persons using arbitration as an alternate dispute
resolution mechanism may not be doing so entirely voluntarily and/or without
coercion with regard to the process and/or outcome. This was a matter long ago
addressed by practitioners in the mediation communities wherein there was a
history of concern, mainly for women, entering mediation, yet still subject to
the impact of domestic violence and/or power and control issues.
a result of these changes in the Province of Ontario, many practitioners of
mediation and now all practitioners of family arbitration are increasingly
informed in these matters or are in the process thereof.
Law groups are yet to set standards of practice in view of these issues.
However, there are practitioners of Collaborative Law with knowledge and
training in mediation, where that knowledge and training may have included
addressing issues of domestic violence and power imbalances. Further, the
practice of family law does not specifically require any such training in
matters of domestic violence and power imbalances.
consumers seeking help in sorting out their separation/divorce agreement,
particularly where there will be an ongoing parental relationship, it is likely
wise that if they feel these issues to be at play in determining their
settlement agreement, that they seek service providers with such training.
At issue in addressing these concerns are; the ability of the parties to freely engage in the process without fear of undo influence; due consideration to safety concerns for all involved in the presence of such issues; and that any agreements take these issues into consideration as appropriate.
Direnfeld, MSW, RSW
For information on Direnfeld's book, Raising Kids Without Raising Cane, click here.
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