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Pamela Cross

COVID-19 crisis complicates intimate partner violence issues, lawyers say

Thursday, April 16, 2020 @ 1:16 PM | By Ian Burns

The pressures of dealing with the COVID-19 pandemic have been well-documented, with people facing job losses, the inability to see loved ones face-to-face and, in some cases, having to deal with a relative who has lost his or her life after becoming sick. But for those individuals who are facing violence at the hands of their partners, or who have been faced with domestic charges, a new layer of complication is added with the shuttering of courts and difficulties in finding a place to go.

Since states of emergency were declared across Canada, reports have emerged about an increase in domestic incidents, including a 300 per cent spike in calls to a Vancouver domestic violence crisis line. Police in Ontario’s York Region also reported a 22 per cent increase in domestic calls in March. This has led to action from government, such as Ontario’s COVID-19 Residential Relief Fund, which includes funding to help address increased costs at emergency shelters for women and families fleeing domestic violence and survivors of human trafficking.

“This is a trying time for everyone, as we continue to stay at home to stop the spread of COVID-19, but we know that home isn’t safe for everyone,” said Ontario's Associate Minister of Children and Women’s Issues Jill Dunlop. “That’s why it’s critical during this time that residential organizations for people fleeing violence have the security they need to continue supporting vulnerable women.”

And Mitzi Dean, B.C.’s parliamentary secretary for gender equity, said B.C. Housing is working to support women and children who would “otherwise be trapped at home in dangerous situations” and is urging those suffering from domestic violence to reach out to VictimLinkBC.

Pamela Cross, legal director of Luke’s Place Support and Resource Centre

“While people across the province are staying home to stem the spread of COVID-19 and protect us all, for some, home is not a safe place. We know that social isolation is making life harder for women and children who live in unstable or violent situations,” she said. “If you reach out for help, we will make sure there is a safe space during this emergency — no matter where you live in B.C.”

Pamela Cross, legal director of Luke’s Place Support and Resource Centre in Oshawa, Ont., said there are likely several things which are contributing to this uptick in domestic violence reports, notably the fact that many women are in much closer proximity to their abuser.

“Let’s say hypothetically I was in an abusive relationship, but I had a job, or my partner worked outside the home and our kids were at school. There would at least be some time during the day where I would not be in the same space as he was,” she said. “And now we have situations where, except for people in essential services, we are at home — schools are closed, parks and libraries aren’t open. And these women are often confined to a very small space with the person who has been abusing them.”

And Cross noted, while domestic violence isn’t caused by things like stress, that can aggravate a situation where abuse is already a factor.

“Everybody is under stress, even those of us who have jobs because we don’t know how long this situation will continue and we don’t have our usual contact with family and friends,” she said. “Those people who are not employed have financial stress, many of us have worries about aging parents and whether or not they will get sick. So, all of those factors put together with the additional time a woman may be with her abuser contribute to the elevated levels of abuse.”

Brian Burke, Epstein Cole LLP

Brian Burke of Epstein Cole LLP said he feels all the dimensions of intimate partner violence are “not something that a lot of lawyers have thought through.”

“They say we need to go to court and get a restraining order which is all well and good, but the restraining order is just a piece of paper,” he said. “But if you have someone who has the psychology of wanting to harm an intimate partner... you will create the conditions of having them harm or worst of all kill their intimate partners. So, a strong hand is not always the right approach — you need proper safety planning and very deep thought.”

Add in the fact that access to courts has become very limited since the pandemic began, leading to possible confusion for both lawyer and victim alike on how to proceed. Burke said, given the delicate matter of dealing with domestic violence, he would be more cautious in dealing with clients.

“Many people have small places and nowhere to go, and so if you are trying to advise a client you have to be sure the husband isn’t listening. If you talk about safety planning and she Googles that, how do you know her partner isn’t going to see it?” he said. “Safety planning is more about urgent circumstances, so if someone is coming at you, you just have to dial 911, and then you are going to have to put yourself in the hands of your friends or a shelter if there is nowhere else to go.”

With family courts having suspended regular operations, services like duty counsel are no longer available to people except electronically, said Cross.

“That can make it more difficult for women to access those services if she can’t get to a private location. She may not feel as though she can have a private conversation with a lawyer about her situation,” she said. “And many lawyers are not opening new files now because they are working from home too — how can they vet a new client?”

Burke said courts are always “excellent” in dealing with issues of intimate partner violence but added “safety is now a little harder to come by.”

“It is just structural and certainly a family court would hear the matter, but I would be saying the front line for people would be principally to talk to the police ASAP,” he said. “And if you go to the other side and someone is accused of violence, this is where the new notice to the profession on urgent matters would be helpful as I think if you are saying you didn’t do this and you are going to contest the matter, you would likely be able to see your children again. Courts will have elevated safety concerns, but I believe these cases would be allowed to go forward because they are important.”

But Cross noted one of the things courts are saying right now in determining urgency for family matters is that people should negotiate their differences before coming to court, which is a “great instruction for people in general but not for families who have had a history of abuse.”

“If I were talking to a lawyer I would advise them to ask questions early on, if they are meeting with a new client, about whether there is any history of abuse or power control issues so they can better understand why the client is so fearful and understand the client may be dealing with trauma, as well as whatever legal issues they are presenting to their lawyer,” she said.

Julianna Greenspan, Greenspan Partners LLP

And the pandemic has led to issues with people who find themselves on the other side of the intimate partner violence issue. Criminal lawyer Julianna Greenspan of Greenspan Partners LLP said, as a result of a person being arrested on a domestic charge, they are usually not allowed to come into contact with the person who has made an allegation against them, which can mean not being able to come back home.

“And so, there is this real COVID-19 problem because where does that person go when they are being charged? You can’t just move in with someone else or sleep on a friend’s couch,” she said. “If somebody is charged, they absolutely should not have contact, but leaving the home becomes a necessary consequence when someone gets charged in a domestic violence matter — and when there is the issue of access to children, that becomes a real nightmare.”

There should be zero tolerance for domestic violence, Greenspan said, but noted if someone has made an allegation there is no one there to decide if an allegation is true or not.

“As a result, that has serious consequences during COVID-19 because if it is a false claim and that person is kicked out of the home, they have no access and may not know where to go to,” she said. “I think it presents a whole host of really serious problems.”

And Greenspan said she doesn’t think there is an answer to that problem.

“[The police] are not judge and jury, they are not assessing the case on the basis of the facts, but once they make a charge, they cannot have those two individuals residing together,” she said. “You can’t just create a facility for people charged with domestic violence to be staying at.”

There is a light at the end of the tunnel for most people in that the pandemic is likely to end and life will return to normal, but the exact date of when that will happen is a question that cannot currently be answered. And the issues plaguing the courts currently are not likely to be resolved the day courthouse doors re-open in Canada. Cross said she believes there will be an “onslaught” of family law cases once the crisis passes, coupled with an increase in demand for the services of organizations which provides family law support.

“This is because women who think I’m going to stay in a holding pattern until we see what is going on will suddenly say it is time to make a move,” she said. “I think demand for shelter services will also get high and remain high once the crisis is over — so I think all of us, whether we are delivering services in shelters or we do the kind of work we do at Luke’s Place, whether we are doing family court support work, we need to be prepared to stay in this crisis mode for some time.”

Greenspan said everyone in the criminal justice realm is concerned and apprehensive of what will happen once the courts return to normal, whenever that may be. She noted there have been increases in some criminal justice matters but significant decreases in a lot of other areas, so that may create a bit of “evenness” going forward.

“There are bail courts every day and Crown attorneys are not just dealing with new arrested but people in custody to see whether in light of COVID-19 people are releasable,” she said. “So, others who may have otherwise remained in custody by just a hair are now given house arrest in light of the world circumstances. That takes more people out of custody.”

Some Crown attorneys are looking at their files and asking whether a matter is in the public interest to proceed, said Greenspan

“There are some really good Crowns out there who care about prosecuting what is worthy to be prosecuted, and maybe not pushing ahead on some matters,” she said. “Everyone is still collectively working on how we can best get on track once the courts re-open. But that may not be in June — what if it is in July? We are all gearing up to do things in June and may be told things are not ready yet. There is a serious concern, even if we go one more week after that it becomes a problem.”

But Cross said “one of the positive things that may come out of this is the courts realizing they can operate electronically.”

“Lots of us had been hoping to see that move for a long time, and a lot of us are hoping once the immediate COVID-19 crisis is over the courts will continue to modernize in that direction, which would make it quicker generally to make cases move forward quickly,” she said.

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