Canadian Law and Domestic Violence

A recent family mediation began with the father shouting, "Do you know what I'd do if my son ever came home with an earring? I'd cut off his ear." He was responding to the mother's request that he stop berating their son. 

This outburst was no surprise. In a pre-mediation screening questionnaire, the mother said the father had abused her. Although she wanted to try mediation, she was unsure whether she could participate on an equal basis with the father. As the mediation progressed, the mother willingly acquiesced to the father's visitation demands in his presence. However, she said privately that she did not want him near her or their children, and that she had agreed to his demands only because she was afraid of him. The mediation ended in an impasse, with no reported mention of the father's abusive history or the mother's fear of further abuse based on her conduct at the mediation. 

This case illustrates a situation in which earlier participants in the case should have noted the existence of domestic violence and exempted the case from mediation. "Participants" refers not to the parties, but to those participating in the family law process: lawyers representing the parties, the clerk of the court, the judge, and the family mediator. 

Ultimately, the mediator in a family case must screen for domestic abuse to determine whether mediation is appropriate. However, this determination should not be the sole responsibility of the mediator. Long before the mediator sees the case, other participants should screen for such abuse by asking the parties about domestic violence. Because some parties may not be literate, screening should include a personal interview in addition to a written questionnaire. Preferably, someone other than the mediator will conduct the interview.