“Family Violence” vs. Crime – What’s the Difference?
Anyone who has ever watched a CSI-type television show is familiar with the concept of violent crime, and the repercussions to those who commit it. Our country’s Criminal Code of Canada categorizes culpable violence into crimes like assault, battery, and sexual assault; if a person is convicted, they can face sanctions that include hefty stints of time in prison.
But the concept of “family violence” is something else entirely. Under Canadian Family Law, it has its own unique meaning, and serves a distinct purpose in that particular branch of our justice system. And here’s the important distinction: Conduct that falls short of being a crime can still be considered “family violence” for Family Law purposes.
First of all, the meaning of the term is expressly and extensively defined in both the federal Divorce Act and the Ontario Children’s Law Reform Act (“CLRA”). For example in section 18(1) of the CLRA, the term covers “any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person …” In section 24(4)(f), the court is expressly directed to consider the impact of family violence, and whether it “causes the child or other family member to fear for their own safety or for that of another person”. The Divorce Act definitions are virtually identical.
This means that under either statute, courts are mandated to not only look for and hear evidence of family violence, but also consider its presence among the factors relevant to making determinations about the best interests of a child. As the court explains in a recent case called Armstrong v. Coupland:
The definition of family violence specifically recognizes that conduct that may not constitute a criminal offence can constitute family violence for Family Law purposes. The examples of conduct that constitute family violence is expansive, but it is non-exhaustive. The broad definition recognizes the many insidious forms that domestic violence can take other than physical violence and accords each equal weight in the best interests assessment. The specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognizes the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact that parent’s ability to meet the child’s physical and emotional needs.
By extension, this also plays into the courts’ analysis when allocating parenting time between separated and divorce parents, and when resolving disputes around things like parental decision-making authority and mobility.
But that’s not all. “Family violence” can also give rise to a claim for monetary damages in some circumstances. The Ontario courts have newly recognized the common law tort of “family violence”. This can see a family member who is engaged in a pattern of violence-based conduct – that includes repeated physical, psychological, financial, or sexual abuse, and/or threats, harassment, stalking – to be liable for civil damages to his or her victim.
Practically speaking, family violence will naturally cover outright physical abuse. But it also covers more subtle patterns of conduct that can be described as threatening, controlling, fear-inducing, harassing, and stalking. It even covers both financial or psychological abuse.
To the full credit of the lawmakers, it’s a broad and fulsome list. In an upcoming Blog, we’ll take a look at some specific examples of how the concept is applied, and how it’s taken into account as part of the courts’ decision-making on various issues.
For the full text of the decisions, see:
