Domestic Violence and Family Law Disputes - LawNow Magazine

Domestic Violence and Family Law Disputes

Family Law ColumnDomestic violence – or family violence or intimate partner violence, call it what you will – is a serious problem in both intact and separated families. According to a 2013 report from Statistics Canada, there are 252.9 victims of domestic violence per 100,000 population, and domestic violence makes up more 26 per cent of all violent crime in Canada. Although children who are victims of domestic violence make up 243.5 people per 100,000 of the under-18 population, spousal violence is the most common form of domestic violence, and 68 per cent of all victims of domestic violence identify as female.

Domestic violence can be an issue in child welfare proceedings, as the abuse of a spouse is significantly predictive of child abuse and domestic violence has important direct and indirect impacts on children even if they are not abused themselves. It can also be a factor in family law proceedings in a number of ways, including:

  • the need to protect a family member from violence;
  • the impact of violence on children’s optimal parenting arrangements; and,
  • the various claims in tort that can potentially be brought against abusers.

Domestic violence was first accepted as a consideration in judicial parenting decisions in the late 1980s, however by the end of the 20th Century, the domestic relations legislation of only one Canadian jurisdiction, Newfoundland, explicitly identified domestic violence as a factor to be taken into account in the court’s assessment of parenting capacity. However, as time as passed the legislation of more provinces have been amended to include references to family violence, either in terms of the protection of victims or the assessment of children’s best interests.

Section 18 of Alberta’s 2003 Family Law Act, for example, required the court to consider “any family violence, including its impact on the safety of the child and other family and household members, the child’s general well-being, the ability of the person engaged in the family violence to care for an meet the needs of the child, and the appropriateness of making an order that would require the guardians to cooperate on issues affecting the child.” Section 37 of British Columbia’s Family Law Act, passed eight years after the Alberta legislation, went a bit further. The parties and the court are required to consider

(g)  the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h)  whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;

in determining what is in the best interests of a child. If domestic violence is a factor, section 38 provides a list of additional factors for the court to consider in assessing the impact of the violence. The federal legislation on domestic relations, however, the Divorce Act of 1985, remained silent on the issue of domestic violence.

According to a 2013 report from Statistics Canada, there are 252.9 victims of domestic violence per 100,000 population, and domestic violence makes up more 26 per cent of all violent crime in Canada.

On 22 May 2018, the federal government tabled Bill C-78 in the House of Commons. The bill proposes sweeping, much-needed changes to the Divorce Act, the first significant changes since the introduction of the Child Support Guidelines in 1997. Many of the amendments contained in the bill will have a significant impact on the practice of family law in Canada, such as the repeal of the terms “custody” and “access” and their replacement with child-centred concepts such as “decision-making responsibility” and “parenting time.” In addition, the amendments will introduce a legal test to help the court determine applications when a spouse wishes to move away from another spouse, with or without a child. The bill will also overhaul how the best interests of children are assessed by introducing a lengthy list of factors for the court to consider, including domestic violence, adopting an approach very similar to that taken in British Columbia.

Under the amended section 16, the court will be required to take only the best interests of children into consideration when making parenting orders and orders about the child’s time with persons other than spouses. The court will be required to give “primary consideration to the child’s physical, emotional and psychological safety, security and well-being” in assessing a non-exhaustive list of factors set out at section 16(3). Among those factors are:

(j)   any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k)  any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Where domestic violence is present, the court will also be required to assess, under section 16(4), the impact of a number of additional factors:

(a)  the nature, seriousness and frequency of the family violence and when it occurred;

(b)  whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c)  whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d)  the physical, emotional and psychological harm or risk of harm to the child;

(e)  any compromise to the safety of the child or other family member;

(f)  whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g)  any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h)  any other relevant factor.

If the bill become law, the factors set out in section 16 will allow the court to take a careful, more thoughtful approach to domestic violence when determining children’s parenting arrangements. The factors set out in section 16(4) should help the court differentiate between situational violence (the sort of abuse that occurs at moments of crisis but is not characteristic of the spouses’ overall relationship), episodic battering (a recurring pattern of abuse within the relationship that can escalate after separation) and coercive controlling violence (in which the abuse is part of a pattern of authoritarian control), and result in more appropriate decisions on parenting after separation.

The bill will not, of course, end domestic violence. It will, I hope, result in more nuanced decisions on children’s parenting arrangements that better promote and support the best interests and general well-being of children.

If domestic violence is an issue for you or someone you know, visit the Public Health Agency’s Stop Family Violence website. The site is an excellent source of information about domestic violence and provide links to supports and services, including help lines, by province and territory.

Authors:

John-Paul Boyd
John-Paul Boyd
John-Paul E. Boyd is a family law arbitrator and mediator, working in Alberta and British Columbia, and is the former executive of the Canadian Research Institute for Law and the Family.
 


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