What is Family Violence?
As covered in “Family Violence” vs. Crime – What’s the Difference? the Ontario Children’s Law Reform Act, and the federal Divorce Act require courts to consider the presence of “family violence” when assessing the best interests of a child, and when making parenting time determinations. That term is defined by legislation, and covers non-physical conduct such as financial an psychological abuse; it also covers a pattern of physical abuse that is threatening, controlling, fear-inducing, harassing, and stalking.
The case archives are peppered with instances of such misconduct, and the Family courts are – sadly – all-too-experienced at dealing with these scenarios. There’s little to be gained from dredging up examples. But we can learn much from hearing what those courts have to say about family violence, including: 1) the pervasive scope of its relevancy; 2) the depth of scrutiny for it; and 3) the role it plays in fostering important social objectives.
Relevancy
First, we know that in the course of adjudicating cases, courts look for the impact of family violence in a broad array of Family Law contexts.
One example is seen in the Supreme Court of Canada decision in Barendregt v. Grebliunas. There, the parents’ dispute focused on mobility, i.e. whether one parent should be allowed to move far away with the child, effectively compromising the other parent’s access. The Court was asked to rule on whether it was correct for the court to consider evidence of family violence in making this determination.
Not surprisingly, the Supreme Court had no trouble confirming that family violence is “an important factor in mobility cases.” Indeed, in many cases it is precisely the reason a parent is applying for permission to move far away – to get away from the other parent who is abusing them or other family members. Its presence in the family dynamic, in any form, also has grave implications on the development of children. Research shows that children who are exposed to family violence are at risk of emotional and behavioural problems. Most family violence also goes unreported, the Court added. This justifies an approach that views family violence as a critical consideration in determining what is in the “best interests of the child”, and considers it an important factor in Family Law rulings of many types.
Scrutiny
The second thing we know, is that family violence allegations are given intensive scrutiny by the Family courts.
As just one example, in Proulx v. Proulx the trial court spent a full 70 paragraphs of its written reasons carefully dissecting each spouse’s version of events around their historic of domestic conflict during and after the relationship. Although the trial court ultimately found no family violence within the definitions in the CLRA or Divorce Act (a conclusion later upheld on the facts by the Court of Appeal), the sheer depth of the court’s focus makes it clear that the issue is taken very seriously.
Application
Finally, in the interests of justice the courts are not shy to apply the “family violence” concept to even unusual scenarios.
In a recent case called Armstrong v. Coupland, the court found that one litigant’s abuse of the opposing party’s lawyer was held to constitute “family violence” for the purpose of determining parenting time. There, the unmarried parents of a young child had a very acrimonious split. The mother accused the father of abusive behaviour in the course of applying for unrestricted access to their child. As part of what the court called a “persistent, systematic campaign” of being demanding and uncooperative, the father frequently made derogatory, sarcastic and threatening comments about both the mother and her lawyer. He also engaged in particularly “disrespectful and malicious” conduct toward the mother’s lawyer (who politely asked him to stop). In concluding this was tantamount to “family violence” within the meaning of the CLRA, the court said:
The [father’s] conduct since September 10, 2021 in relation to his parenting time and his communications to [the mother’s lawyer] Ms. Swan and the [mother] constitute family violence within the meaning of section 18(1) of the Children’s Law Reform Act. The communications have often been inappropriately aggressive, demanding and threatening. While many of the comments have been directed towards Ms. Swan, they have been sent to the [mother] as well and have been clearly designed to destroy a solicitor client relationship that the [mother] considers to be critical to ensure the safety and wellbeing of herself and her two children. In this sense, the communications amount to a pattern of threatening, coercive and controlling behaviour towards the [mother].
As these cases show, “family violence” may be a relatively new concept in Canadian Family Law, but it’s already a well-identified one. The courts are clearly at-the-ready to acknowledge its existence, and to protect children and families against its harmful effects.
For the full text of the decisions, see:
Barendregt v. Grebliunas, 2022 SCC 22
Proulx v. Proulx, 2021 ONSC 3657, which was affirmed at the Court of Appeal, Proulx v. Proulx, 2022 ONCA 428
