Domestic violence and changes to Divorce Act©8H –

*Trigger warning: this article discusses a real case involving domestic violence, which may be triggering to some readers.

Recent judicial interpretation and application of the expanded protections for victims of domestic violence in Family Court

On March 1 of this year, there were significant changes made to the family law legislation, both federally and in Ontario, which included refurbishing the definition and relevance of domestic violence in family law cases. These changes got considerable media attention and caught the interest of the general public. Many victims of domestic violence have been encouraged — in speaking with their counsellors, support workers, and lawyers — that these amendments to the legislation will bring a shift in the Family Court discourse towards more protection for victims and children affected by domestic violence.

There are not yet many reported decisions in Ontario which interpret and apply the newly amended Divorce Act and Children’s Law Reform Act (CLRA). Justice Gibson recently released a decision which thoughtfully lays out the relevant sections of the Divorce Act (which the CLRA models as well) and applies it to a case where both physical and emotional violence were alleged. This particular decision was the result of a father’s motion to expand his parenting time with the children to either unsupervised or supervised by his parents, including overnight visits. It’s not clear from the decision, however one may infer that the father was only having supervised access at a facility at the time of this motion.

In this case, Justice Gibson accepted the mother’s evidence of the father perpetrating coercive and controlling behaviour, however the extent is not elaborated on. The decision does refer to father having pleaded guilty to a charge of mischief for destroying the mother’s cellphone. The father subsequently completed the PAR (Partner Assault Response) Program.

‘Best interest of the child’ in Divorce Act

As Justice Gibson points out, the only test for the court to consider is “the best interest of the child”, however the recently amended paragraph 16(3) of the Divorce Act enumerates a number of factors to be considered in determining the best interests of the child. These factors include:

  • s.16(3)(i), the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  • s.16(3)(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
  • s.16(3)(k), any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Justice Gibson then explains how these factors can be relevant to a situation, such as the one at hand, involving a history of physical and emotional abuse between the spouses (paragraphs 14-15):

Flexible arrangements may not be appropriate for parents unable or unwilling to cooperate or communicate with each other. Detailed agreements or orders specifying the arrangements for the children may make it less likely that the children will be exposed to conflict between the parents.

In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. To help courts assess the impact, severity and risks of family violence, s.16(4) provides a non-exhaustive list of additional criteria.

Paragraph 16(4) of the Divorce Act now states:

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(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.

Justice Gibson applies the statutory factors, and assesses the facts of this case as follows (para 21):

When considering the factors referred to in subsection 16(3), I must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being;

There are significant concerns in this case about past family violence, the prospect of future family violence, and the ability and willingness of the parties to co-operate with each other;

In light of this, I must consider whether a co-operative parenting arrangement is appropriate;

In allocating parenting time, I must give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Father’s parenting time

Ultimately, Justice Gibson found it appropriate to expand the father’s parenting time to include overnight visits supervised by his parents. Justice Gibson wasn’t prepared to go as far as the father’s initial request for expansive unsupervised access, namely because (para 23):

I consider that a co-operative parenting regime necessarily inherent in the extensive parenting time requested by the Respondent in his primary submission is not currently appropriate. The potential for friction between the parties, and the potential impact of this on the best interests of the children, is too high.

While the application of sections 16(3) and (4) of the Divorce Act to the history between these two spouses weighed against “co-operative” parenting arrangements, the court also had to balance the need to ensure the children have sufficient quality and quantity of parenting time with both parents in accordance with the children’s best interest. If a compromise can be found to mitigate any risk to the children while also increasing their time with that parent, such as having grandparents play an active role, the courts will often take this approach, at least as a stepping-stone towards a more permanent plan.

This is an early decision of legislation not yet 3 months old. As the courts continue to interpret the new legislation, the law around domestic violence in family matters will hopefully become more nuanced. We will certainly be following these developments.

You should always seek advice from an experienced family lawyer because each family’s situation is unique.

Bayly Guslits is an Associate with the Family Law Practice Group and can be reached by email.