With the amendments to the Divorce Act in 2021, we saw a legislative emphasis on the concept of family violence for legally married couples. Family violence was previously known as “domestic violence.” It has now been defined under the Divorce Act as:

Family violence means 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 and includes:

• Physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person.

• Sexual abuse.

• Threats to kill or cause bodily harm to any person.

• Harassment, including stalking.

• The failure to provide the necessaries of life.

• Psychological abuse.

• Financial abuse.

• Threats to kill or harm an animal or damage property.

• The killing or harming of an animal or the damaging of property; (violence familiale)

How Family Violence Impacts Parenting Decisions

With this definition, the Court is tasked with considering the impact of family violence in relation to the “best interests of the child” test under s. 16(3)(j) of the Divorce Act. It is this test that the Court considers when making determinations on the decision-making and parenting of a child. The Divorce Act goes even further with the concept of family violence, outlining at s. 16(4) several factors relating to it that the Court may consider, including:

• 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.

• The physical, emotional and psychological harm or risk of harm to the child.

• Any compromise to the safety of the child or other family member.

• Whether the family violence causes the child or other family members to fear for their own safety or for that of another person.

• 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

• Any other relevant factor.

The inclusion of these provisions in the Divorce Act outlines the seriousness that the federal government wants the Court to take regarding family violence and the impact it has on children. Our provincial legislation, the Parenting and Support Act, has also adopted a definition of family violence that applies to families that are not legally married.  The best interests of the children are now required to be considered based on the impact of family violence, regardless of the family structure.

The idea that family violence has no impact on children, and no impact on the ability to parent, is no longer a reasonable assumption.

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Accordingly, family violence can be a significant concern in the best interests test and is something the Court takes very seriously. If your matter involves family violence, please contact our office to discuss the options available to you in addressing parenting and decision-making.