Husband and wife Philip Viater and Jennifer Kagan near their home in Vaughan, Ont., on April 24.Galit Rodan/The Globe and Mail
On the stand at her child custody trial, as Jennifer Kagan laid out the abuse she experienced at the hands of her ex-husband, the judge cut her off. That wasn’t relevant to her ex’s parenting abilities, the judge told her – and he’d be ignoring it.
Dr. Kagan was stunned.
“He was so impatient with me, and just looked so apathetic,” she said. She remembers thinking: “This is not somebody who is going to protect my child.”
On Feb. 9, 2020, Keira Kagan and her father, Robin Brown, were found dead at the bottom of a snowy cliff in the Rattlesnake Point Conservation Area, a popular hiking spot in summer, but a dangerous and puzzling destination in winter. Keira was four years old.
Family struggling to make sense of four-year-old girl’s sudden death
Dr. Kagan, a palliative care physician, believes the deaths were a murder-suicide by an ex-husband determined to hurt her – and, in part, a consequence of judicial ignorance. The Domestic Violence Death Review Committee of the Ontario coroner’s office’s is examining the case.
The judge eventually granted sole custody of Keira to Dr. Kagan, giving her full decision-making powers over her care. Mr. Brown got weekly unsupervised parenting time, even though he sometimes refused to return Keira after a scheduled visit. As well, the judge had acknowledged that Mr. Brown once stuffed a dead mouse in Dr. Kagan’s mouth in a fit of rage. And that he lied, pathologically, including falsifying documents for two PhDs.
Two years after her daughter’s death, Dr. Kagan is advocating for an amendment to the federal Judges Act that would require training on domestic violence and coercive control for all new judges, and expand the existing training for sitting judges, which she hopes could prevent future tragedies.
“Judges are supposed to be taking into account family violence, including coercive control – but they don’t know how to recognize it,” she said. “We want to give them the tools to recognize it.”
Keira’s Law is part of a private member’s bill tabled in the House of Commons by Quebec Liberal MP Anju Dhillon. Bill C-233 also includes a separate proposed amendment to the Criminal Code that would allow a judge to order someone charged with intimate-partner violence to wear an electronic monitoring bracelet upon release from custody.
On Feb. 9, 2020, Keira Kagan, pictured, and her father Robin Brown were found at the bottom of a snowy cliff in the Rattlesnake Point Conservation Area.Photo courtesy of Jennifer Kagan
A law passed last year requires sexual-assault training for new federally appointed judges. The goal in both cases is to address what advocates see as a knowledge gap, although such proposals have also raised concerns that government mandates could impede judicial independence.
“Keira was completely failed by our our judicial system,” said Ontario MP Pam Damoff, who worked with Ms. Dhillon to draft the bill. Ms. Damoff added that the judge who decided the custody case had specialized in labour law in his legal practice, not family law.
Bill C-233 is scheduled to be debated in Parliament on Friday.
During the custody trial, the judge characterized the case as high-conflict. Dr. Kagan and her ex made a laundry list of accusations against each other, he said, that he did not feel he was in a position to parse through.
“When I talked about abuse, [my ex-husband] would counterallege abuse ... to obfuscate from his own conduct,” Dr. Kagan said. “And as you can see, that strategy is effective because judges throw their hands up.”
Dr. Kagan’s new husband, Philip Viater, a family lawyer, says this is common. Many judges, he says, “just have so little knowledge about abuse, and they penalize [victims] for even raising the issue. And the gap, the disconnect, is the education. It’s them not understanding.”
Research into child homicides by the Canadian Domestic Homicide Prevention Initiative found that about 30 children are killed by a parent in Canada each year. Over the past decade, mothers have been responsible about 40 per cent of the time, and researchers found postpartum depression or mental illness often played a role. In the 60 per cent of cases where fathers are the killers, researchers have usually found a history of domestic violence and retaliation against their partner after separation.
Mr. Viater said education for judges is important, particularly since those deciding the cases do not necessarily have family law backgrounds.
The Judges Act was amended in 2021 to require sexual-assault training for new federally appointed judges, in part after an Alberta judge came under fire for asking a victim, among other things, why she didn’t keep her knees together. The training is available to all judges, although it is not mandatory.
The Canadian Judicial Council, which oversees and disciplines judges, noted that governments cannot actually mandate training.
Johanna Laporte, director of communications for the CJC, said the amendment “uses permissive language, such as ‘should’ not ‘shall,’ to convey a suggestion on what could be included in judges’ training. Any mandatory aspects of judicial education come as a result of judges themselves deciding that a well-educated and informed judiciary that adheres to high standards of competence is essential to preserving public confidence. We would expect the same from C-233.”
Mr. Viater said mandatory training would be a “minimal intrusion” on judges’ independence.
Ms. Dhillon said it would be up to the CJC to oversee the creation of any new training. Dr. Kagan and Mr. Viater say it should include how to recognize postseparation abuse, risk factors for lethality, and trauma responses of victims.
Tony Paisana, chair of the criminal justice section for the Canadian Bar Association, said judicial independence should be considered sacrosanct – and that any external direction on education should be done with caution.
Having herself been subject to abuse from ex-husband Robin Brown, Kagan now does advocacy work on behalf of victims of domestic violence.Galit Rodan/The Globe and Mail
“We have a very well-defined separation of powers in Canada, between, among other things, the executive and the legislature and the judiciary. Where one is telling the other what kind of education they should have, it does raise, on its face, concerns about whether or not judicial independence is being interfered with,” said Mr. Paisana, a criminal lawyer.
He said it is common for judges to oversee different areas of law than those they worked in as lawyers.
“I don’t think any magic particularly turns on their backgrounds. If it were otherwise, it would be completely inconsistent to have a jury system at all,” he said. “Here are 12 people that don’t have a shred of legal training … and we entrust them with these incredibly important decisions.”
The National Judicial Institute, which delivers most of the education for judges in Canada, said intimate partner violence is “addressed extensively throughout our judge-led judicial education programming on sexual assault and family law, and the surrounding social context.”
Coercive control is a type of psychological abuse and a pattern of behaviour that runs through many abusive relationships. Here's how to recognize it.
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Molly Hayes