The topic of “family violence” has been a recurring theme lately.
In our early-December Blog, we wrote about the Ontario government’s support of federal legislation titled “Keira’s Law”, which aims to educate judges on intimate partner violence. We also wrote previously about the different between “family violence” and a crime.
Canadian Family Law addresses the reality of “family violence”, through various measures – one of them being legislation. Both the Children’s Law Reform Act (which applies to unmarried parents) and the Divorce Act (which covers married parents) define that term as including a “pattern of coercive and controlling behaviour” by one partner against the other. This definition then comes into play whenever courts are asked to allocate parenting time between separated and divorcing parents, since the presence of “family violence” is one of the factors that must be considered.
The exact nature of the definition’s “controlling behaviour” element came up in a recent case called Hicks v. Geist.
The court was asked to rule on the parenting time allocation between the now-separated mother and stepfather of a young child. The parents were unmarried, so the Children’s Law Reform Act (CLRA) governed their scenario. The court pragmatically introduced the narrative this way:
At a certain point, the Respondent Mother lost her enthusiasm for the family life they were, until then, enjoying together. So be it. She does not respond to the suggestion that this arose from her express interest in polyamorous relationships, but why she lost enthusiasm doesn’t really matter unless it was due to conduct by the other falling within [the factors to be considered by the court under the CLRA].
In her court-filed materials, the mother had raised allegations of “controlling behaviour” by the stepfather during their relationship. But upon looking at the evidence, the court ruled that – even if her allegations were proven – they fell short of the applicable threshold that constituted “family violence” under the CLRA.
The court explained:
The Respondent Mother began to frame her complaints about abuse and family violence well after this litigation started. Although I certainly recognize that delayed insight or disclosure of abuse is quite usual, in the present case it is entirely inconsistent with the evidence she herself provided by her many contemporary communications.
The court went on:
But, objectively, there is no element of control, just disagreement. I do not find that the Respondent Mother invented these sensibilities. But objectively, there is no evidence that the Applicant Step Father was controlling to a fault, nor that any of it amounted to family violence.
And finally:
I observe that a subjective experience of an interaction with another might feel like being “controlled” by the other. I observe that in many relationships, whether family or other relationships requiring frequent interaction, when one is dissatisfied that things are not going as one prefers it is normal to feel resentment towards the other. Many relationships break down by the resentment that builds, and looking back, it feels like the other was controlling.
Full text of the decision: Hicks v. Geist, 2022 ONSC 5671 (CanLII)
