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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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