Over the last few years, family law legislation has been making ground-breaking changes in an attempt to take family violence more seriously. Considering recent events, it has become dramatically clear that family violence is still not dealt with the seriousness that it warrants.
On Tuesday, October 24, 2023, Ontario saw another instance of the importance of treating family violence seriously. Five people, including three children, were found dead in Sault Ste. Marie homes as a result of intimate partner violence.
Amendments to the Divorce Act
In 2021, the Divorce Act was amended to include and define “family violence” in the context of the best interest of the child, as it includes direct violent acts and the harm that children’s exposure to family violence can cause. Section 2 of the Divorce Act set a broad definition of family violence, as follows:
“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
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property
Ontario also amended sections 18(1) and (2) of the Children’s Law Reform Act to provide that the same definition of family violence will apply to all Family Law cases involving children.
In theory, these amendments would provide a framework for judges to ensure cases involving family violence would be treated consistently and would not be left entirely up to a judge’s discretion on potentially arbitrary considerations. However, defining family violence is useless if those directly impacted by it are not taken seriously by the systems meant to enforce and support them.
The Reality of the Treatment of Family Violence
Despite the changes to Family Law legislation, we continue to see family courts fail survivors of domestic violence. Family violence allegations are notoriously difficult to prove, as many instances of family violence go unreported and happen behind closed doors. Family Law Judges are very careful to point out that all judges have to base their decisions on evidence, not on allegations or speculation.
The topic of family violence is rife with myths and stereotypes that effectively discredit the experiences of survivors. Some examples are that survivors exaggerate, survivors are vindictive and make claims of violence because they do not want their children to see the abuser spouse, and that it is an attempt to gain more financial support. These stereotypes reflect the types of arguments that are used to diminish survivors when family violence is addressed in family law proceedings. When judges do not challenge these stereotypes, they have the effect of reinforcing and perpetuating these stereotypes and diminishing the experience of survivors of domestic violence. Judges should be hyper-aware of these stereotypes so that they can apply critical thinking when presented with these arguments.
When determining parenting time arrangements for children, courts must make a decision that is consistent with the best interests of the child. With this being said, there has been an increase in shared parenting arrangements where both parents have had a significant role in the lives of the children before separation. Some judges have believed the “maximum contact principle,” now at s. 16(6) of the Divorce Act, and s. 24(6) of the Children’s Law Reform Act create a presumption of shared parenting arrangements, equal parenting time, or regular access, implying that having as much contact with both parents will be in the best interests of the child. However, the Federal Government carefully worded the section to make contact with each parent subject to the child’s best interests, not a presumption that equal time or shared custody is in the child’s best interest.
Judges continuing to place equal sharing of parenting time ahead of children’s best interests has resulted in many survivors of domestic violence feeling like they are being served a life sentence of torture as they are forced to maintain a connection with their abusers for the sake of their children. Survivors of intimate partner violence must still be granted permission to relocate away from their abusers if children are involved, and while courts consider the best interest of the child, they fail to consider how abusers can manipulate the system to continue to utilize coercive control over their former spouses.
Additionally, s. 16(3)(c) of the Divorce Act (and s. 24(3)(c) of the Children’s Law Reform Act) is known as the “friendly parent rule.” This is a principle that suggests that courts should take into account the willingness of each parent to assist with facilitating a relationship with the other parent. It is well established that survivors of domestic violence may be less inclined to assist with facilitating a relationship with their abuser for their child. The courts can see this as a reason for a parent not to be awarded primary decision-making or parenting time for a child. When an abused parent prioritizes their safety over assisting their child with fostering a relationship with their abuser, judges may find them to be participating in alienating behaviour. As a result, many survivors of domestic violence face “double victimization” as they are punished for reporting abuse.
This is where judges need to exercise their judicial discretion. Knowing what we know about intimate partner violence, there is no longer an excuse for the courts to perpetuate myths and stereotypes, double victimize, and effectively use the judicial system to punish survivors of intimate partner violence.
On April 23, 2023, “Keira’s Law,” became law across Canada. The law arose out of the death of 4-year-old Keira Kagan at the hands of her father in 2020 after judges ignored her mother about the father’s potential for violent behaviours. Keira’s Law amends s. 60 of the Judges Act to provide training to federally appointed judges regarding intimate partner violence and coercive control.
In Keira’s case, her mother noted that when she went to trial for her matter, the judge had a background in labour and employment law and did not allow her to speak when she began to discuss domestic violence and parenting and the impact on her daughter. The judge maintained that domestic violence is not relevant to parenting. She had been before ten different judges, and 53 court orders were issued against her former spouse due to his violent behaviour. The court forced Keira’s mother to comply with the court-ordered weekend parenting time visit despite Kiera’s father becoming increasingly violent.
Although this case was before the Divorce Act amendments, family violence is one of many factors judges consider when assessing the best interest of a child, and it does not weigh more heavily than any other consideration, especially if a judge believes that the child has a strong relationship with the abuser.
Although Keira’s Law is another step in the right direction for family law, it does nothing if judges do not actively educate themselves on the complexities of family violence and continue to challenge the stereotypes associated with family violence. If judges in family courts continue to maintain the position that shared parenting is in the best interest of the child and dismiss the impacts that it has on the parent that is directly impacted by it, then courts will continue to be used as a control mechanism for abusers.
This blog was co-authored by articling student Toni Pascale.