Canadian Journal of Family Law


Wanda Wiegers

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Both the child protection and the family law systems are intended to promote the best interests of children, and both can profoundly affect the relationships between children and their parents or caregivers. Over the past two decades, both systems have also accorded more weight in the assessment of best interests to how exposure to domestic violence can harm or place children at risk. However, these systems have evolved differently, are governed by different statutes, and are administered in different ways. Child protection proceedings purport to have primarily a protective function and invariably involve a public agency, while family law proceedings, under the Divorce Act and similar provincial and territorial statutes, typically involve disputes between private litigants. In this article, I compare the impact of the two systems in cases involving allegations of domestic violence, highlighting the challenges within each, the differences between them in their identification and response to domestic violence, as well as the problematic ways in which the systems interact and generate contradictory pressures for survivors, most often mothers. While I reference research findings in other jurisdictions, my inquiry is focused on Saskatchewan, a jurisdiction with relatively high rates of children in state care and the highest rate of domestic violence of all provinces. I draw on multiple sources that include extensive in-person interviews with legal professionals, government employees and service providers. I argue that the tensions and contradictions experienced by those affected by domestic violence could be mitigated by the provision of adequate and appropriate preventative and legal supports in both systems along with information and procedural protocols, more uniform understandings of domestic violence and adequate training for all court and Ministry personnel in the dynamics of domestic violence, the impact of systemic inequalities and the specific issues arising at the intersection of both systems.