In March of 2021, the Divorce Act and the Children’s Law Reform Act were amended. The acts no longer refer to “custody” or “access”, but instead state “decision-making responsibility” and “parenting time” or “contact”. The amendments also stress the significance of family violence in family law matters – particularly the requirement for the court to consider family violence when making orders regarding decision-making responsibility or parenting time.
Section 2(1) of the Divorce Act, and sections 18(1) and 18(2) of the Children’s Law Reform Act define family violence as “any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct”. Family violence includes but is not limited to physical violence, sexual abuse, psychological abuse, financial abuse, threats to kill/harm any person or animal, or the killing or harming of an animal.
So, what does this mean? In making an order regarding decision-making responsibility or parenting time, the Court must consider the best interests of the child, which now includes family violence. Paragraph 143 of the Supreme Court case of Barendregt v Greblinas states:
The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator's parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., "A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth" (2014), 5 I.J.C.Y.F.S. 493, at p. 497.
Depending on the nature, timeline, and impact of the family violence on the child’s best interests, the Court may order supervised parenting time, a graduated parenting time schedule, or even suspension/termination of parenting time. The conduct of a parent towards the child or the child's other parent is a significant factor in this determination. It is critical that the Court is fully aware of any such behaviour by the parents prior to making any decision. There are separate legal tests for each level of parenting time that the Court must consider when making any parenting time order. At Shankar Law, we possess the required skills and knowledge to analyse the facts of your case to determine the best path forward. We will advocate for you and ensure any relevant family violence is appropriately presented to the Court.
We look forward to working with and serving you through our physical offices in Owen Sound, Kincardine, Wiarton or Port Elgin and virtually from anywhere in Ontario. We are here to help with your Family Law, Criminal Law, Wills & Estates and Real Estate Law needs.
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