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FAMILY VIOLENCE AND PARENTING ORDERS: DETERMINING THE BEST INTERESTS OF THE CHILD

A person’s hand asking to stop (violence)

Family violence can take many forms, and it is known to have a profound effect on children. Separation and divorce can exacerbate an already violent relationship and the period following separation is the highest time of risk. Despite all that is known about family violence and its potential impacts on children and parenting, the Divorce Act was silent on this important issue.

That changed on March 1, 2021, when significant amendments to the Divorce Act came into force. This article will highlight the new provisions added to address family violence and protect the best interests of children.

 

New Definition of Family Violence in Canada’s Family Law

The new definition of “family violence” in section 2 of the Divorce Act (see here for the full text) is expansive and intended to recognize that many forms of behaviour can be violent or abusive. Here are the key points of the new definition:

  • “Family violence” means conduct that:

    • is violent, or

    • is threatening, or

    • forms a pattern of coercive and controlling behaviour, or

    • causes a family member to fear for their safety or the safety of another individual.

  • The conduct does not have to be a criminal offence or meet the criminal threshold of “proof beyond a reasonable doubt” to be considered family violence under the Divorce Act.

  • The definition contains a non-exhaustive list of examples of conduct that constitutes family violence, including physical abuse, psychological abuse, sexual abuse, forced confinement, financial abuse, harassment (including stalking), failure to provide the necessaries of life, threats to damage property, and threats to harm or kill any person or animal.

  • It includes a child’s direct or indirect exposure to family violence.

The inclusion of both direct and indirect exposure to family violence is significant. It brings the federal Divorce Act in line with the existing definition of family violence in the BC Family Law Act and recognizes that both types of violence can have a profound effect on children. Children who are indirectly exposed to violence are at risk for emotional and behavioural problems throughout their lifespan, and these impacts are similar to the risks of direct abuse.

 

How Family Violence Factors into Decisions about Parenting


It has long been the law that the best interests of the children are the only consideration for the court when making parenting decisions. The March 1, 2021, changes to the Divorce Act clarified how family violence factors into the best interest test. To determine which parenting arrangement is in the best interests of the child, the court must consider:

  • The impact of family violence on parenting and contact arrangements, including, among other things, its impact on the ability and willingness of the person who engaged in family violence to care for and meet the needs of the child: section 16(3)(j)(i). To this end, the court must consider what the history of family violence demonstrates about that person’s ability to parent in the child’s best interests.

  • The appropriateness of making an order that would require the parties to co-operate on matters affecting the child: section 16(3)(j)(ii). A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. Co-operative arrangements may lead to opportunities for further family violence.

  • Any criminal or civil proceedings, orders, recognizances, undertakings, measures or other instruments relevant to the safety or well-being of the child: section 16(3)(k). Many types of orders related to civil and criminal proceedings may be relevant to the safety or well-being of the child. For example, a conviction related to an assault against the child; a current or past child protection order; a criminal conviction for an offence committed against a family member of the child. The consideration of this type of information should promote consistency between various court orders that might have an ultimate impact on the child.

To help the courts assess the impact, severity and risks of family violence, the Divorce Act now provides a non-exhaustive list of additional criteria related to family violence in section 16(4). In considering the impact of any family violence, the court must take into account factors such as the nature, seriousness and frequency of the family violence and when it occurred; whether there is a pattern of coercive and controlling behaviour in relation to a family member; whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; and whether the family violence causes the child or other family member to fear for their own safety or for that of another person.

While all violence is of concern, generally the most serious type of violence in family law is coercive and controlling violence. This is because it is part of an ongoing pattern, tends to be more dangerous, and is more likely to affect parenting.

 

Child’s Safety, Security and Well-being Are the Primary Considerations


In addition to family violence being a factor in the best interests test, the new Divorce Act sets out a list of other factors to be considered, including the child’s needs; the child’s cultural, linguistic, religious and spiritual upbringing and heritage; the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; and the child’s views and preferences, giving due weight to the child’s age and maturity (section 16(3)).


In some cases, there may be conflicts between two or more of these best interests factors. The Divorce Act has a new “primary consideration” provision to resolve conflicts that may arise in determining the best interests of the child (section 16(4)). The primary consideration provision states that in making a parenting order or a contact order, the courts must prioritize the safety, security and well-being of the child above all other considerations. This may be particularly important in cases of family violence.

 

Set up a Consultation with Us


If you have children and are facing separation or divorce, you should consider consulting with Valerie M. Little Law Corporation at your first opportunity to make sure your rights and those of your children are not compromised. Ms. Little will make your children a top priority, and will help you move forward in a way that protects the safety, security and well-being of you and your family.

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