COVID-19, the Shadow Pandemic, and Access to Justice for Survivors of Domestic Violence

Forthcoming, Osgoode Hall Law Journal

Osgoode Legal Studies Research Paper

44 Pages Posted: 26 Sep 2020

See all articles by Jennifer Koshan

Jennifer Koshan

University of Calgary - Faculty of Law

Janet Eaton Mosher

Osgoode Hall Law School

Wanda Anne Wiegers

University of Saskatchewan - College of Law

Date Written: September 23, 2020

Abstract

The COVID-19 pandemic has co-existed alongside a far less visible “shadow pandemic” of violence against women, with COVID-19 impacting the number and complexity of domestic violence cases and enabling new tactics for coercive control. This article provides a preliminary assessment of the extent to which Canada’s responses to the COVID-19 pandemic have prioritized the safety of women and children, with a focus on the courts and women’s access to justice. We examine court directives and judicial decisions triaging which cases would be heard as “urgent,” as well as courts’ decisions on the merits in cases involving domestic violence and COVID-19, spanning the areas of family, child welfare, criminal law, and civil protection orders. In the sixty-seven reported decisions in our sample, we find very little awareness overall of the heightened risks for survivors during COVID-19, in keeping with the pre-pandemic tendency of decision makers to focus on incident-based physical violence instead of patterns of coercive control. Our analysis also suggests that survivors’ ability to prove domestic violence and secure court orders that would help to ensure their safety was hampered not only by procedural complexity but also by the reduced availability of a range of services—health, counselling, housing, and supervised access centres, for example— as a result of COVID-19. The cases further reveal significant differences in judicial interpretation of the risks of COVID-19 relative to the risks of domestic violence, often depending on the area of law in question. This again aligns with observations of the judicial treatment of domestic violence prior to the COVID-19 pandemic, with different and sometimes conflicting norms and assumptions prevailing in different legal contexts. We conclude that despite some positive government responses and judicial decisions, COVID-19 has further exposed many of the gaps in knowledge about domestic violence and in the supports and resources necessary to make women and children safe that long pre-dated COVID-19. In addressing the ongoing pandemic of violence against women, we offer some suggestions of measures to improve access to justice during this and future disasters.

Suggested Citation

Koshan, Jennifer and Mosher, Janet Eaton and Wiegers, Wanda Anne, COVID-19, the Shadow Pandemic, and Access to Justice for Survivors of Domestic Violence (September 23, 2020). Forthcoming, Osgoode Hall Law Journal, Osgoode Legal Studies Research Paper , Available at SSRN: https://ssrn.com/abstract=3698160 or http://dx.doi.org/10.2139/ssrn.3698160

Jennifer Koshan (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Drive NW
Calgary, Alberta T2N 1N4
Canada

Janet Eaton Mosher

Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

Wanda Anne Wiegers

University of Saskatchewan - College of Law ( email )

Saskatoon, Saskatchewan
Canada

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