The deaths of Chloe and Aubrey Berry, possibly at the hands of their father, are a tragedy that touches us all. This story is relatively isolated in its extreme consequence. Yet it makes visible systemic concerns that exist within our family-justice system. It is especially concerning given that B.C.’s new Family Law Act pays special attention to family violence.
After more than a decade of consultation, B.C. introduced an overhaul to its family law in March 2013. Two fundamental changes were prominent in the new Family Law Act. First, a parenting regime was introduced, replacing a regime structured around the allocation of custody and access. The new regime focuses on issues tied to the creation of parenting plans, and the allocation of parenting time and parenting responsibilities.
Second, a broad definition of family violence was introduced, with the aim of bringing coercive and controlling behaviour, intimidation, harassment and threats to persons, pets and property within the ambit of family violence. The act makes it clear that this definition of family violence and several related factors must be considered when addressing the best interests of a child. These factors include violence that targets a spouse.
These changes were heralded as overdue and progressive. Those who work on family violence placed much hope in their application and interpretation, not just by judges, but by the lawyers, mediators and others who deal with the day-to-day negotiated agreements that settle the majority of disputes.
However, a 2015 study by Susan B. Boyd and Ruben Lindy highlighted lingering concerns about how cases of family violence and parenting were dealt with under the new act.
These concerns shed some light on the post-separation parenting decisions that were made concerning Chloe and Aubrey.
Early judgments under the new act showed three troubling trends. First, while decision-makers are required to consider emotional, psychological and physical violence when addressing a child’s best interests, they have considerable, possibly excessive, leeway about how that informs any resulting parenting plan. Second, this leeway permits use of faulty assumptions about the nature and impact of spousal violence, which reinforce the gendered, racialized and other dynamics of privilege that still inform family law. And third, normative assumptions about the value of shared parenting can detract from the significance accorded to determinations of family violence.
As well, evidentiary issues remain a challenge in what are primarily private interactions. Case law shows that notwithstanding clear statutory language, emotional and psychological violence are not considered to be as serious as physical violence. And even with the celebrated decision not to enshrine a “maximum contact” principle, like the one in our federal divorce law, decision-makers still demonstrate tremendous faith in, and optimism about, shared parenting.
Despite its noble directives to take seriously the risks of family violence, the act is still predominantly interpreted to emphasize the benefits of co-parenting while minimizing the risks of being in the care of a violent parent. Judicial decisions still come close to adopting the assumption that shared parental responsibility and parenting time are appropriate goals even in the face of violence.
B.C. Supreme Court Justice Victoria Gray offered thorough and careful reasons in her decision in Cotton v. Berry in May 2017. She detailed the coercive and controlling behaviour of Andrew Berry, including threats of violence, inappropriate touching, unexplained injuries to his daughters and negative discussions about their mother in front of them, amongst other concerns.
Nevertheless, her judgment embodied hope that, “at least in time, both parents can focus on what is best for the children.” Describing Berry as a “loving father who has much to offer his daughters,” the court found that it was in the best interests of the girls to have significant parenting time with him. Their father’s abusive conduct was cast as “poor judgment” and family violence was not deemed to be a significant factor for determining parenting arrangements. Family violence is a complex phenomenon, to be sure, but the Family Law Act states that agreements and orders are not in a child’s best interests unless they protect, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.
Not connecting the dots between the varied forms that family violence takes, and failing to take seriously the warning signs of controlling and manipulative behavior, can have tragic consequences. So, too, can expecting one parent to accommodate problematic behavior in the name of shared parenting.
Sarah Cotton tried her best to facilitate her daughters’ relationship with their father, while asking the family justice system to help establish boundaries to ensure their safety. Ultimately, and tragically, her efforts were not enough.
Gillian Calder is associate professor at the Faculty of Law at the University of Victoria. Susan Boyd is professor emerita at the Peter A. Allard School of Law at the University of British Columbia.