Navigating the legal system is challenging for any self-represented litigant (SRL), but for victim-survivors of intimate partner violence (IPV) or family violence, it can also be deeply retraumatizing. Without a lawyer, SRLs are directly exposed to the adversarial nature of the court process, where abusers can continue harassing victim-survivors through aggressive and oppositional tactics. At least 40% of family law litigants self-represent, often because they earn too much to qualify for legal aid but not enough to sustain representation. Abusers exploit this financial vulnerability, hoping that financial hardship will force their victims to give in—particularly in custody and support disputes. As a result, rather than providing safe, neutral spaces to respectfully work out divorce and custody disputes, for many survivors courts become yet another arena where abuse can continue. This is particularly true for women, who may be disproportionately targeted by post-separation abuse: courts also tend to assume that abuse ends when a relationship ends, but research shows that post-separation abuse is both common and under-recognized. While public perception sometimes suggests that family law is biased in favour of women, the reality is more complicated. Women who don’t conform to narrow stereotypes about the “ideal victim” or “ideal mother” can be penalized in rulings about parenting time and decision-making. Many people also struggle to accept the prevalence of IPV under the assumption that it’s rare and/or deployed as a ‘tactic’ in family law litigation, thereby dismissing legitimate claims as improbable. In reality, 30% of all the police-reported instances of violence in 2019 were reports of IPV, which is particularly significant given that 80% of all IPV isn’t reported at all.
Family violence and coercive control
These gaps in protection are especially dangerous when abuse takes the form of coercive control (loosely understood as an ongoing pattern of domination and harm), rather than isolated incidents. While there’s still significant debate about the definition of coercive control, it usually includes some combination of tactics such as stalking/surveillance, psychological control (e.g. threats, false reports of abuse), financial control, physical violence, and/or sexual abuse. Critically, abusers can exploit court-ordered arrangements to continue violence after the end of a relationship, particularly when children are involved. They use parenting time arrangements to track victim-survivors, alienate children from mothers during unsupervised parenting time, and/or use pick-up and drop-off to create conflict.
Courts also generally assume that it’s in the “best interests” of a child to have access to both parents, but mothers may be held to much higher standards than fathers, whose presence is frequently seen as almost universally beneficial to children, even when they have histories of violence. For example, in KM v JR, the mother filed a motion to reduce the father’s parenting time, arguing that he was abusive. He countered that she had fabricated allegations of family violence to dissuade the court from considering a co-parenting arrangement. The reality is that fabrications of family violence are rare. However, mothers are frequently advised against bringing up violence to avoid accusations of parental alienation (which can be weaponized as against a spouse alleging violence), and women who raise concerns about IPV can receive harsher judicial treatment. The judge in KM found the mother to be pleasant and generally credible, but also that her justification for reducing the father’s parenting time was selfish – this, notwithstanding the court also finding that the father was disrespectful and unruly in court. Justice Pazaratz saw his aggressive behaviour as a sign of “honesty” and “authenticity.” He determined that the father’s behaviour as a parent was more relevant than his courtroom behavior, while the mother’s credibility was questioned when she showed discomfort answering questions about her abuse. She was apparently held to a far higher standard, even though the father’s courtroom behaviour was consistent with her allegations.
As noted, mothers who speak out about abuse can be accused of parental alienation, especially if they don’t fit the mold of the “ideal victim.” Courts expect abuse to be physical, well-documented, and followed by an immediate exit from the relationship. The reality is that financial dependence, forced isolation, pre-existing vulnerabilities, and/or psychological manipulation make it difficult, if not nearly impossible, for many women to leave abusive relationships within timelines that courts find credible. A delay in leaving an abusive partner is often used to discredit a woman’s experiences. In KK v MM, the father’s lawyer suggested that if the mother had actually been abused, she would have left the marriage. However, the mother wasn’t allowed to have a bank account or cell phone, and wasn’t allowed to work, making it nearly impossible for her to leave. She stated that she had wanted to leave the father, but had nowhere to go, unaware of women’s shelters or community supports.
SRL status
In these cases, it appears that SRLs are expected to adhere to the stereotypes of both the competent litigant/advocate and the credible victim. Litigants are expected to be both represented and emotionally neutral, so when SRLs (particularly women) show emotion, they’re often seen as irrational or untrustworthy. And if their experience of abuse isn’t packaged neatly into a clean, linear narrative sufficiently backed-up according to the assumptions of the court (which is particularly difficult for SRLs navigating the legal system on their own), they risk accusations of parental alienation or false allegations of violence. For instance, in KK v MM, a court-appointed doctor (testifying for the father) found that the mother (self-represented at the time), had attempted to alienate the couple’s children from the father by alleging abuse. This finding was used to grant the father temporary primary care of the children with no contact with their mother for 3 months. This finding of parental alienation was ultimately discredited, and the doctor subject to remedial training. But this case illustrates how accusations of parental alienation can be weaponized against mothers (and SRLs) who allege abuse, especially those marginalized by language, class, race, or other vulnerabilities.
SRLs also continue to struggle to articulate their claims in a way that aligns with legal language and procedure. This is particularly challenging in the context of family law when a SRL is attempting to introduce legal and evidentiary issues of family violence. In Mane v Mane, the self-represented mother repeatedly referred to the “tort of abuse,” and was inconsistent on whether she was making a tort claim at all or just using the claim to support her position on parenting time. Because legal language and substantive law remains complex, SRLs often struggle to navigate it with little to no support. In these moments, it is incumbent on a judge to adopt a more supportive or inquisitorial approach to clarify the nature of the claim.
Moving Forward
We know that many SRLs face barriers such as language and literacy issues, limited access to technology, limited knowledge of the law, and a general lack of familiarity with the legal system; the challenges faced by SRLs generally are exacerbated in cases involving family violence. Groups that already work on IPV and family violence are well-positioned to help, with the right support and resources. They can offer training and education not only to victim-survivors, but for trusted intermediaries who are likely to encounter survivors in their work. Settlement workers, for example, are typically the first people newcomers encounter in Canada, and are more likely to have the language skills to communicate effectively with new immigrants. But many working in this field may not have the training to recognize IPV or respond when someone discloses abuse. Organizations should look to work directly with those who are likely to encounter victim-survivors to provide education about IPV and coercive control, in ways that are accessible to victim-survivors of different backgrounds. This is especially important because language and cultural contexts shape how people speak about violence. In KK v MM, the mother attempted to explain her experiences to hospital staff but didn’t know the phrase “domestic violence” in English. Additionally, it is imperative that the justice system insiders – judges and lawyers and court workers – who encounter cases at the intersection of self-representation and family violence are made aware of the unique challenges associated with representing oneself in such a case, and how the presentation of their case by an SRL might be impacted by the very circumstances of the family violence.
The case law and lived experiences of SRLs, as well as those who work on issues of IPV and family violence, reflect the urgency of this issue. The question from an access to justice perspective is how collaboration among individuals and organizations might provide better support to SRLs who are attempting to navigate the intersection of family law and IPV/family violence.
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