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12 Can. J.L. & Soc. 101 (1997)
Spousal Abuse, Children and the Courts: The Case for Social Rather Than Legal Change

handle is hein.journals/cjls12 and id is 105 raw text is: Spousal Abuse, Children and the Courts: The Case For Social Rather Than Legal Change Linda Neilson * Department of Sociology University of New Brunswick Abstract - This article explores arguments for and against proposals for statutory changes that would require Canadian judges to consider partner or spousal abuse when making decisions about child custody and access, in terms of the likely implications for women. The author discusses, in historic context, the relationships of social change to the evolution of social ideology and professional knowledge about gender and family and the influences of these on the evolution offamily law, in order to demonstrate that legal changes alone are unlikely to produce positive benefits for abused women and their children. Moreover, an analysis of the legal discourse of judges as reported in the Canadian Reports on Family Law between 1983 and 1996 suggests the need for caution. Instead of judicial sensitivity to the special vulnerabilities of women in abusive situations, the case law indicates that judges are applying an objective incidents-based approach to assessments of abuse. Because this approach ignores the special vulnerabilities of women and makes it appear that abuse is symmetrical by gender, women may be disadvantaged if judges are required to deny or limit abuser's access to, or custody of their children. The author concludes that, if what is intended is the protection of abused women and children, the solution lies less in giving more power to judges than in promoting social change through collective action, the evolution of professional knowledge that ultimately will find reflection in law, and the allocation of tangible resources for the benefit of abused women and their children. Risumi - Dans cet article, l'auteure pose le pour et le contre de certaines modifications a la loi qui obligeraient les juges canadiens, au moment de l'octroi des droits de garde et d'accds, tenir compte des actes de violence du conjoint ou du conjoint de fait. Elle expose les incidences de telles modifications pour les femmes victimes de violence conjugale. Tentant de demontrer que les Three students provided valuable research assistance in connection with this project. A grant from the University of New Brunswick Research Fund enabled Judith Begley, then a law student at the University of New Brunswick, to provide assistance with the collection of data from reported family law cases. Tina Oates and Kiran Pure of the Muriel McQueen Fergusson Centre for Family Violence Research prepared an annotated bibliography of psychological research titled Ongoing Post-Divorce Conflict and Its Effects on Children.

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