When justice becomes an involuntary “accomplice” of domestic violence

Caroline* lived for several years with a violent partner. She did not imagine to what extent this violence would continue, despite their separation, through the legal proceedings which would multiply against her.

He never took care of our child, and once I left, he asked for full custody, the mother is still surprised. For about three years, he made two to three requests per week. Each time, I consulted my lawyer, and each time, it cost me fees. Each email created mega-stress for meconfides Caroline.

According to her, it was a strategy to maintain control, sinceafter several safeguard orders, the day before the trial, he requested an amicable settlement.

His family matter case was taking place at the same time as his sexual assault complaint was being examined at the criminal level; a test. I was out of breath, drained, but I knew it was dangerous for my daughter.

Caroline estimates she has spent more than $15,000 in attorney fees and is unable to return to work at this time.

And her case is far from unique, explains Me Karine Barrette, lawyer and project manager at the Regroupement des centers pour femmes victims de violence conjugal.

Repetitive legal procedures, lack of collaboration, non-compliance with deadlines and frivolous requests, judicial violence is a strategy used to exercise control over one’s ex-spouse through the justice system, even after separation.

As part of his work, Me Barrette also observes situations where spouses resort to false declarations to the Youth Protection Department, cross-criminal complaints or unfounded allegations at the legal aid level.

Manon*, mother of two children and separated since 2018, is also confronted, like Caroline, with the complicated procedures of her ex-partner.

He asks me to go through my lawyer to exchange simple identity papers for the children. Since he changes lawyers all the time, these costs start again and again.

She claims to spend a lot of time responding to her ex-partner’s requests, which results in delays and costs. In addition, she maintains, they are full of lies about her.

In the last two years alone, Manon estimates she has spent more than $12,000 in legal fees.

This violence, in addition to harming the spouses who are victims of it, also harms the judicial system itself, notes Mr. Barrette.

She cites the example of rural areas, where there are few legal aid lawyers. Thus, a quarrelsome spouse can go so far as to consult several partners to create a conflict of interest situation and thus prevent their ex from having access to a legal aid lawyer.

In other cases, notes Mr. Barrette, the judicial violence is so intense that some lawyers withdraw from the case, bombarded with emails or because they are the subject of ethics complaints from the perpetrator.

Recently in jurisprudence

Although frequently noted by organizations providing assistance to victims of domestic violence, judicial violence only entered case law last year, in a decision by Judge Marie-France Vincent.

On October 3, 2023, she ordered a lawyer and university law professor to pay $95,000 in damages to his ex-spouse for having exercised judicial violence.

In her decision, the judge writes that the man abused emails to the lady’s lawyer […] and everything to delay the pronouncement of a divorce judgment”,”text”:”of the justice system by the production of a multitude of requests […]notified of procedures almost every week […]sent more than 1100 emails to Madame’s lawyer […] and everything to delay the pronouncement of a divorce judgment”}}”>of the justice system by producing a multitude of requests […]notified of procedures almost every week […]sent more than 1100 emails to Madame’s lawyer […] and everything to delay the pronouncement of a divorce judgment.

Concluding that the divorce proceedings should have cost the ex-spouse $5,000, and not more than $100,000 as was the case, Judge Vincent ordered the man to pay the difference, or $95,000, in damages, for the fees paid.

A great example noted by Judge Vincent, made a point of emphasizing the Minister of Justice, Simon Jolin-Barrette, who says he is well aware of this problem. As Minister of Justice and as a Member of Parliament, we receive testimonies from people who have sometimes experienced a trying process and sometimes through judicial violence. This is why it is important to intervene.

Although there are no statistics yet on the extent of the phenomenon, judicial violence is something we hear quite frequentlyconfirms Me Élise Joyal-Pilon, lawyer at Rebâtir, an organization which has supported nearly 13,000 victims of sexual and domestic violence since its creation in fall 2021.

It exhausts the victims both psychologically and financially.

Create an electric shock to the justice system

Quebec intends to take advantage of its family law reform to better equip the courts against judicial violence.

In its Bill 56, Quebec sets out criteria to help the courts detect it. For Minister Jolin-Barrette, the court should not be used as a weapon, sometimes against their child or their ex-spouse, to maintain control over them.

The bill notably asks the court to take into account the history of proceedings since the separation, the presence of family or marital violence and the impact on the children. Quebec is also asking the Superior Court to ensure as much as possible that each case always comes before the same judge, in order to better determine whether an appeal becomes abusive.

In Caroline’s case, judges had to sign safeguard orders repeatedly. If it had been the same judge each time, he might have seen the relentlessness in the proceedings.she believes.

Another new legislative lever envisaged: in the event of abuse, the judge will have to impose damages. can award them”,”text”:”The bill says that the judge must award damages, whereas today the judge can award them”}}”>The bill says that the judge must award damages, whereas today the judge can grantspecifies Me Joyal-Pilon.

It is a recognition to victims that abuse of process can have an impact on you, your financial and psychological health and that of your children.

According to Michaël Lessard, professor at the Faculty of Law of the University of Sherbrooke, Quebec is trying to create an electric shock to the justice system.

: you have this power, feel comfortable and legitimate to use it to protect victims and protect the justice system from becoming complicit in domestic violence.”,”text”:” We tell judges: you have this power, feel comfortable and legitimate to use it to protect victims and protect the justice system so that it does not become complicit in domestic violence.”}} “>We tell judges: you have this power, feel comfortable and legitimate to use it to protect victims and protect the justice system so that it does not become complicit in domestic violence.

Perfectible measures

The Group of Homes for Women Victims of Domestic Violence believes, however, that the bill could impose consequences that would beyond damages, from a dissuasive perspective. We cite in particular the example of a register, as there is for quarrelsome people.

The objective of assigning only one judge per case has already provoked reactions from several speakers heard during the study of the bill. It would be important for the assigned judge to be sensitive to family law issues., underlines Sara Arsenault, responsible for political files for the Fédération des femmes du Québec, to the Minister of Justice. She believes that training could help judges to better detect this insidious violence.

Finally, the FFQ recalls the logical challenges of such a measure. The congestion of the courts and the lack of judges in the Superior Court could pose challenges in terms of provisional requests which are requests that must be heard urgentlyadded Ms. Arsenault.

The Group of homes for women victims of domestic violence is participating today (New window) to the consultations organized at the National Assembly.

Awareness

This desire to define the concept of judicial violence is an important recognition for the mobilization against violence, according to the organizations which see it as a broader awareness.

Barrette. But the more judicial actors understand how insidious it can be, the more people will be able to recognize it.”,”text”:”In the past, we saw domestic violence as essentially physical and occasional violence, recalls MeBarrette . But the more judicial actors understand how insidious it can be, the more people will be able to recognize it.”}}”>In the past, we saw domestic violence as essentially physical and occasional violence, recalls Me Barrette. But the more judicial actors understand how insidious it can be, the more people will be able to recognize it.

In the same vein, remember that the federal government is studying a bill aimed at the criminalization of coercive control. These behaviors constitute a series of actions aimed at intimidating, manipulating or humiliating the victim, but which fall outside the scope of current criminal offenses.

Last March, Quebec sent a letter to the Canadian Minister of Justice, Arif Virani, asking him to immediately add coercive control as an offense to the Criminal Code.

*We have used fictitious names to protect our witnesses and their children.