Watch Gene C. Colman’s presentation at the Sept. 2022 Men & Families Conference – “The Newly Expanded Definition of “Family Violence” in the Divorce Act” (of Canada)
Changes made to the federal Divorce Act last year are affecting cases across Canada, including one involving relocation.
The Supreme Court of Canada recently ruled that a mother could relocate with her children 10 hours away from the father, even though a shared parenting agreement was in place. The ruling stems from claims that the father had likely been abusive. (This link connects to the SCC decision. See paragraphs 141 to 147 where the court emphasizes the crucial importance of family violence in the context of parental relocation cases. The previous link to the Globe and Mail article should be read with some degree of caution. The article may not be totally correct in terms of its legal analysis. There was more than one incident of violence as per the Divorce Act’s now expanded definition of “family violence”.)
Protecting a child’s best interests
The message that this ruling sends is that family violence can play a more significant role in determining what is in a child’s best interests than maximizing both parents’ parenting time.
As such, the courts can be more amenable to relocation requests from non-violent parents trying to keep their children safe and keep themselves safe and healthy.
Types of abuse that can affect parenting time
Abuse can take a devastating toll on children and parents alike. And it can come in many different forms, all of which have the potential to dramatically affect a child’s welfare and positive development.
Physical abuse can be the most visual form of abuse because it can leave bruises, scars and lacerations. It can involve:
If a parent is physically abusive toward the other parent or the child, staying away from the abusive party is crucial to protecting everyone’s safety.
Psychological or emotional abuse
Psychological abuse is also a threat to a child’s wellbeing. Gaslighting, isolation and wearing down a victim’s self-esteem are all ways that an abusive party can mistreat someone.
Another manifestation of this type of abuse is humiliation. In the case mentioned above, the father reportedly included an illicit photograph of his ex-wife with legal filings for no purpose other than to embarrass her.
Turning a child against the other parent, called parental alienation, can also be psychological or emotional abuse. But the Supreme Court of Canada did not address that point in the recent case. To what extent “parental alienation” will be deemed to constitute “family violence” remains to be determined.
Abusive partners might use money to control victims and exert power over them. They might restrict access to bank accounts, rack up debt in a victim’s name or control how much money the victim can have at any time.
Stripping a person of financial assets can prevent them from going anywhere or doing anything independently.
Violence and a child’s best interests
Every instance of family violence or abuse has the potential to harm a child, and the courts appear to be taking these claims very seriously. In the context of parenting time or relocation, this could mean approving situations that reduce or restrict how much a child sees an abusive or violent parent. On the other side, coercive and controlling behaviour connected with unreasonable parenting time restrictions (“gatekeeping”) can also arguably be seen as “family violence”. But keep in mind that while abuse or “family violence” as it is now called and is so widely defined, constitutes one set of factors in what can be a very complicated matrix of competing facts.
Recent statutory changes and recent cases are reintroducing bad behaviour into family law. It just might very well help to consult with a family law lawyer.