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WHAT DOES THE DIVORCE ACT HAVE TO SAY ABOUT FAMILY VIOLENCE?

Introduction

The House of Commons will soon consider Bill C-223, the “Keeping Children Safe Act.” The bill’s supporters will say that the Divorce Act does not adequately protect children and survivors of family violence. That claim is mistaken. The current Divorce Act already provides strong protections for women and children, including male victims of family violence, and the case law makes clear that our courts treat family violence with the seriousness it deserves.

Does the Divorce Act:

  • protect victims of family violence?
  • protect children?
  • guard against the recurrence of family violence and the harm it can cause a child?

Yes to all three. The sections that follow explain why.

Wide Definition of Family Violence

The Divorce Act defines “family violence” in s. 2.1:

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

  1. physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
  2. sexual abuse
  3. threats to kill or cause bodily harm to any person;
  4. harassment, including stalking;
  5. the failure to provide the necessaries of life;
  6. psychological abuse;
  7. financial abuse;
  8. threats to kill or harm an animal or damage property; and
  9. the killing or harming of an animal or the damaging of property; (violence familiale)

Implications:

  1. The definition is very wide.[1]
  2. There does not have be a criminal conviction or even bad behaviour that qualifies as criminal.[2]
  3. If anyone and I mean anyone in the family fears not only for his/her own safety but even for the safety of someone else, then that behaviour is caught by the definition.  If the mom, for example, fears for her child’s safety because of the dad’s actions or even threats, then that’s family violence.[3]
  4. The perpetrator’s behaviour does not have to be directed just at his/her target.  If any family member fears for his/her safety, it’s family violence.[4]
  5. The child does not have to be physically present during the perpetrator’s bad conduct.  Even indirect conduct of any kind by the perpetrator constitutes family violence.[5]
  6. The definition gives examples of the types of behaviour.  Note that the lead-in to the list says “includes”.  That means objectionable behaviour does not have to be on the list to qualify as family violence.  The impugned behaviour list can grow.  Social media behaviour would be included here, for example.[6]

Family Violence and the Risk of it is part and parcel of Best Interests

Subsection 16(3) tells us that we are absolutely obliged to view best interests of the child through a family violence lens.  If family violence, widely defined, is present, we cannot ignore it.  We are statutorily obliged to consider it.  It’s not discretionary; it’s mandatory.

“In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including…”

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Implications:

  1. A family violence perpetrator may not have the ability to meet the child’s needs.[7]
  2. We have to give very careful consideration to even consider requiring a family violence victim to cooperate with the perpetrator re issues affecting the child.  This is quite correct.  We cannot hold it against a victim for not cooperating; she/he may fear for his/her personal safety in the widest sense of the word.[8]
  3. We always must be mindful of a child’s safety.  If there is any other proceeding going on, we must take cognizance of any orders, conditions, measures that are extant within that other proceeding when it comes to the child’s safety, security and well-being.  If there is a bail order that protects a child, then the family court cannot willy nilly just override such order, condition etc.[9]

Subsection 16(4) – Part of best interests

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

  1. the nature, seriousness and frequency of the family violence and when it occurred;
  2. whether there is a pattern of coercive and controlling behaviour in relation to a family member;
  3. whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
  4. the physical, emotional and psychological harm or risk of harm to the child;
  5. any compromise to the safety of the child or other family member;
  6. whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
  7. any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and,
  8. any other relevant factor.

Implications:

  1. There are seven factors that the court must consider when addressing section 16(3)(j) – ie. when the court examines family violence and its impact upon any remedial measures that the perpetrator has undertaken as well as when the court looks at the ‘cooperation’ factor in parenting cases.[10]
  2. Those seven factors are very wide ranging. They are not even a complete list because sub (h) says “any other relevant factor”.[11]
  3. There is even an extra reminder here that “coercive and controlling behaviour” can cause real damage.[12]
  4. There should be no judicial risk taking when it comes to the safety of any child or other family member.[13]
  5. If anyone in the family unit fears for their safety, the court cannot ignore that.[14]
  6. The perpetrator can take steps to improve and negate the risks if he/she has engaged in  comprehensive and effective measures to put everyone’s mind at ease.  But such measures cannot and should not override the court’s concern to ensure that the child is safe and that all family members are safe.[15]


The Divorce Act provides robust protections to family violence victims. Case law shows that courts treat family violence with the seriousness it deserves.

Footnotes

1 McBennett v Danis, 2021 ONSC 3610 at paragraph 84; S.C.H. v S.R., 2023 ONSC 4928 at paragraph 478.

2 McBennett v Danis, 2021 ONSC 3610 at paragraph 84; A.E. v A.E., 2021 ONSC 8189 at paragraph 81.

3 Ahad v Ahad, 2023 ONSC 3836 at paragraphs 26 to 27; Ghiyas v Khan, 2023 ABKB 274 at paragraph 36.

4 Droit de la famille — 232084, 2023 QCCS 4710 at paragraphs 18 to 19; McBennett v Danis, 2021 ONSC 3610 at paragraph 86.

5 S.C.H. v S.R., 2023 ONSC 4928 at paragraph 478; Gill v Gill, 2023 ONSC 5882 at paragraph 86.

6 Droit de la famille — 23840, 2023 QCCS 2072 at paragraph 49; Malone v Cappon, 2023 ONSC 4344 at paragraph 121.

7 Barendregt v Grebliunas, 2022 SCC 22 at paragraph 143; J.L. and J.F. v New Brunswick (Justice), 2021 NBQB 150 at paragraph 22.

8 Bell v Reinhardt, 2021 ONSC 3352 at paragraph 15; N.M. v S.M., 2022 ONCJ 482 at paragraphs 110 to 111.

9 Bell v Reinhardt, 2021 ONSC 3352 at paragraph 13; Jewish Family and Child Service of Greater Toronto v N.S., 2020 ONCJ 525 at paragraphs 48 to 52.

10 Kostrinsky v Nasri, 2022 ONSC 2926 at paragraphs 22 to 25; Abaza v Adam, 2023 ONSC 1776 at paragraph 19(d).

11 Droit de la famille — 23840, 2023 QCCS 2072 at paragraph 49; Zychla v Chuhaniuk, 2022 ONSC 6884 at paragraph 32.

12 J.L. and J.F. v New Brunswick (Justice), 2021 NBQB 150 at paragraph 24; A.V. v B.D., 2023 ONCJ 318 at paragraph 65.

13 V.K.G. v I.G., 2023 ONSC 6329 at paragraphs 94 and 112; VLM v AJM, 2021 ABCA 267 at paragraph 43.

14 Dayboll v Binag, 2022 ONSC 6510 at paragraphs 42 to 43.

15 Friesen v Friesen, 2022 SKQB 83 at paragraphs 81 to 84; Armstrong v Coupland, 2023 ONSC 5451 at paragraphs 549 to 552.

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