|The Report Newsmagazine, 2001 04 16, p. 35|
Men don't matter
A new study finds the ex parte order is a woman's best weapon prior to divorce
by Louise Malenfant
After much hair-pulling and verbal sparring, the government of Alberta proclaimed the Protection From Family Violence Act (PFFVA) in June 1999. A special law to protect victims of violence, many feared it would be a law for women only, denying men the due process required to defend themselves against allegations of domestic abuse. All that worry seems misspent now. Few people have used its Emergency Protection Orders (EPO)--protection which allows the police to call a justice of the peace and obtain an order forbidding attendance in the home or contact with the spouse.
Howard Research of Edmonton, contracted to provide an assessment of the impact of the PFFVA in the province, reviewed its use in Calgary, Edmonton, Lethbridge and Fort McMurray. Many people are scratching their heads over the fact that only 129 requests for orders under the act were requested in the first year of implementation.
The mystery may be explained by the fact that the older, infamous Ex Parte Order is still available and still the process of choice, given the extensive family law relief it provides. Under the standard rules of court in Alberta, one party may apply in court to obtain custody, access, exclusive use of residence, child and spousal support, right along with their restraining orders. The term ex parte means that the party affected by all of this is given no notice of the court proceeding, and no opportunity to defend himself. The Howard Report notes that in the year of their study, 520 ex parte orders were granted in the four cities.
As many had feared, the ex parte order is almost exclusively a woman's weapon to wield in divorce court. The Protection and Restraining Order Project, part of the court services in Edmonton, reports that in the year 2000 only 52 (or 6%) of the 861 new clients served were men.
So how do men who are victims of violence get treated by the system? The story of Elvis is a cautionary tale.
Thirty-year-old Elvis Van (not his real name) claims he was assaulted on May 19, 2000, and ran from the house shared with his partner, Kendra. He did manage to get away with his five-month-old son, but not without receiving multiple facial injuries when she tried to stop him. A few blocks from home, he phoned the police and was told to get right down to the station.
Elvis claims this was only one of numerous times that Kendra drank and got angry, but it was one time too many. However, instead of escorting the injured Elvis home with the baby and telling his alleged abuser to leave, the Edmonton police took him home to get some possessions, then left him on his own to find a place to stay. No photos were taken of his obvious injuries, so Elvis had to call the next day to request that action. Three weeks later he called police to ask when his abuser would be in court, only to learn that she had not been charged with an offence. Charges were laid the following day. Kendra was convicted of criminal assault in March in an Edmonton courtroom, but the court provided her with an absolute discharge so that she would not have a criminal record arising from the incident.
Elvis' story does not end there, because shortly after asking the cops to charge his abuser, she applied for an ex parte order of custody for her infant son. In her hearing before provincial court Judge J. Buchanan, Kendra made no mention of the assault charges she faced or the circumstances surrounding Elvis' departure from the home with the baby. She simply swore: "He will not say where he has my son and has refused me access unless I sign a paper waiving custody until June 29th, 2000." The June date was the scheduled hearing for Elvis' application for interim custody and access to the mother. To Kendra's credit, she did not make any wild allegations of abuse, but then she did not have to. A quick trip to court put the six-month-old boy in the hands of a woman with a history of alcohol-fuelled rage.
Chris Kellet, staff sergeant for the Edmonton Police Family Support Services, says his officers make no gender distinction when it comes to victims of violence. Asked if police give different advice to male victims, Staff Sgt. Kellett noted the absence of referral services for men. "We have no shelter for men in Edmonton," he says, "and the resources the police can refer men to are just not there."
On the question of why the new Emergency Protection Orders are not being used in place of the ex parte order, an Edmonton lawyer who asked to remain anonymous says that the ex parte order may just be better at getting all the family court prizes, in comparison to the EPO that is applied for by the police. "There is no test, or any legislation that gives guidance to the court to determine the circumstances where an ex parte order is called for," says the lawyer. He adds that most judges are afraid that if they do not grant the order, they will be left holding the bag if tragedy happens.
David Knight, a lawyer who wrote a paper on the subject during the PFFVA debate, believes the problem is that the courts are in the position of having to "rely almost entirely on the say-so of a person who potentially has much to gain if they are believed." Family advocates say that in Edmonton courtrooms, judges routinely hold five-minute hearings at the start of the day and make ex parte orders without any inquiries as to why the opposing party cannot be notified. Edmonton Conservative MLA Julius Yankowsky, who has taken a special interest in family law issues, expresses concern that if the ex parte orders are being used as a matter of convenience, it may require a review of the intent of the act and how it is being interpreted in the courts. Mr. Yankowsky notes that "family breakup, especially where children are involved, is a very serious matter, and all decisions before the court should be made very carefully." The making of an ex parte order is troubling to many because only scant evidence from one party who benefits most from the order is heard. Mr. Yankowsky notes that in all family disputes, "the welfare of the children, who stand to be hurt the most," is what is at stake.
Tell that to Elvis, who now sees his son at the whim of his former girlfriend, and "worries a little bit every day" that Kendra will lose her temper--only he will not be there to take the heat.
Ó The Report Newsmagazine
|Hoist on his own law|
When he ran the Winnipeg police department's family and child abuse unit in the early 1990s, now-retired Inspector Ken Biener wrote its zero- tolerance policy on domestic violence. Known for his aversion to wasting police resources on false allegations as much as for his concern for abuse victims, he found himself last year at the receiving end of his own policy. Though the alleged victim repeatedly told the court and police that she had not been assaulted, a friend of the woman's reported an alleged incident of violence by Insp. Biener, setting him the expensive task of defending against a charge with no witness and no victim. "I have a host of concerns...about how this matter was dealt with by the Winnipeg Police Service, particularly senior management," said Mr. Biener, adding, "This has been a waste of police resources." Last week charges were finally dropped against him. Observers were left to wonder: if a cop with 20 years' loyal service gets this kind of action, what chance does the average guy have to obtain fair treatment?