Written on behalf of Shariff & Associates
Domestic violence is an unfortunate consideration in a number of family law disputes. To avoid factoring in valid concerns of family violence when making decisions in a family dispute could potentially place a former spouse, or a child, in danger of further abuse.
Courts have long accounted for family violence when making orders around parenting time or access. As an example, a parent who has exhibited violent behaviour in the past may only be permitted to spend time with their child in a supervised setting, in order to facilitate an ongoing relationship between the parent and child while mitigating the chance of harm due to mental or physical abuse.
In cases where the violent history exists just between the adults in a family, a court might order shared parenting time, but enforce a rule stating that the parents must pick up and drop off their children in a public place to avoid potential in-person conflict.
Family Legislation Amended to Include Consideration of Family Violence
In March of this year, the federal Divorce Act was formally amended to include family violence as a factor when considering the best interests of a child in a family law dispute. Notably, the change considers both physical and emotional violence, with the definition of “family violence” including, but not limited to, the following circumstances:
- Physical abuse
- Sexual abuse
- Threats to kill or cause physical harm to another person
- Harassment or stalking
- Failure to provide the necessities of life
- Ongoing controlling or coercive psychological abuse, or psychological abuse that causes another person to feel that their safety is threatened
- Financial abuse
- Threats to cause harm to or kill an animal, or cause damage to property
The Justice Department also noted that a child’s exposure to such violence, even if aimed at another person, a parent for example, is also harmful. For this reason, violence may be a factor in family law decisions affecting a child even if there is no direct threat of violence against the child in question. This concept was at the heart of a recent decision in a case involving the decision-making authority with respect to a child who spent time with both parents.
Mother Requests Sole Decision-Making Authority, While Father Requests Shared Authority
In a recent decision of the Ontario Court of Justice, L.B. v. P.E., the mother had brought an application seeking an order for sole decision-making authority with respect to her son. The parents had cohabitated for just under two years, before they separated. At the time of separation, the father was charged criminally following an incident in which he assaulted the mother. Post-separation, the child resided with the mother, and the father was granted supervised access to his son.
The mother eventually withdrew the charges against the father, explaining that she had spoken with him and wanted to grant him an opportunity to “be a good parent for the child”. The parties shared access over the next several years, with the child residing primarily with the mother, and staying with the father for regular visits.
The mother brought a motion seeking an order to create a schedule for the father’s parenting time on alternate weekends and every Wednesday for an overnight visit. In addition, she sought an order that she be granted sole decision-making authority with respect to major decisions affecting the child. The father requested equal parenting time and joint decision-making ability.
The parties had previously shared decision-making ability, however, under a previous order, had strict rules in place around communication. The court, in the case at hand, noted that even without the consideration of past incidences of violence, the parents were not good candidates for an order for shared decision-making ability, considering their difficulties with communicating effectively.
Family Violence Concerns Solidify Need for Final Decision-Making Responsibility
In examining the child’s best interests, which is the primary consideration in all parenting disputes, the court determined that it would not be in the child’s best interests for the parents to have an equal say in important decisions, saying:
There is a power imbalance between the parties. The father can be controlling and coercive. The mother is submissive with him. A joint decision-making responsibility order, or any allocation of decision-making responsibility to the father would run too high a risk of exposing the mother and the child to family violence and escalated conflict.
While the mother must keep the father informed with respect to any important decisions, such as issues related to education, health, or religious upbringing, the decision would ultimately lie with the mother, in an effort to protect her safety and autonomy. Further, this arrangement will hopefully prevent the child from being placed in the middle of, or being subjected to fallout from ongoing disputes between his parents.
Contact the Family Lawyers at Shariff & Associates for Compassionate and Proactive Legal Representation in Family Disputes Involving Domestic Violence
The empathetic lawyers at Shariff & Associates regularly work with clients dealing with family violence as a factor during or after a separation or divorce. We work closely with each client to find the best forum and result for their specific matter, while working to ensure their safety, and that of their children. To review your matter in confidence with a member of our team, please reach out to us online, or call us at 905-591-4545.