What is Family Violence
The modified Divorce Act is now defining “family violence” as a conduct between family members (be it a criminal offence or not — so no need to prove beyond reasonable doubt), which is threatening, makes a pattern of coercive and controlling behaviour or causing fear for other family members’ safety (or that of another person) and also exposing such a conduct to the children of the family.
Child abuse
Family violence includes child abuse:
- physical abuse,
- psychological abuse,
- financial abuse
- forced confinement,
- sexual abuse,
- threats to kill or cause bodily harm to any person,
- threats to kill or harm an animal or to damage property,
- actual killing or harming an animal or damaging property,
- harassment (including stalking),
- not providing necessities of life (including health care),
and also exposing children to those acts even indirectly (when a child ca see other family members injured or in fear).
Reasonable force used to protect oneself or others is excluded, though.
In practice we are talking of punching, slapping, kicking, forcible confinement, depriving from medical attention, ridiculing, yelling and criticizing — but it all should be in a threatening way (inducing fear) to be qualified as child abuse. Not giving a spouse access to his(her) own bank account or a pay cheque, preventing a spouse from working and similar acts do also count.
Assessment of family violence
Dealing with family violence and its impact on a child, a Court is obliged to look into:
- the nature, seriousness and frequency of the family violence.
Nature could be coercive and controlling as opposed to resisting someone’s violence to protect oneself and another person. Coercive and controlling violence is seen as the most serious, and it is more likely to affect parenting negatively.
Violence could also be situational — like usual anger mismanagement during family conflicts which is not necessarily associated with desire to control a partner.
There might also be a separation-instigated violence (provoked by the situation of separation and having small number of incidents as opposed to regular violent actions, which bear a greater risk of harm to the children). A serious violence act happened long ago but within the pattern of coercive and controlling behaviour is of greater concern than a single less serious incident at the time of separation.
In any case, severity of violence is the most important factor.
- if there is a pattern of coercive and controlling behaviour in relation to a family member (not only the child).
This means a cumulative pattern of behaviour aimed at controlling or dominating another person through a variety of means (like physical violence, emotional, psychological, sexual, financial abuse, choosing a partner’s clothing, controlling his/her money spending, preventing him/her from seeing friends).
The Court will look if the controlling partner used children to control the former spouse. Such a controlling partner might refuse to comply with parenting orders and threaten the former spouse with the loss of parenting time.
The underlying principle is that coercive and controlling family violence makes future family violence more probable than situational couple violence. Coercive and controlling spouses are seen as less likely capable to separate their role as a spouse from the role of a parent, so they are more likely to abuse children after divorce.
- Violence is directed toward the child, or the child is directly or indirectly exposed to the family violence.
When violence is directed toward a child, it’s more likely to be coercive and controlling, which increases the risk of further victimization after divorce.
- Actual physical, emotional harm or risk of harm to the child.
The word “risk” refers to a possible harm, which was not immediately apparent. It may indicate a need for counselling.
- If the violence cause the child or other family member to fear for their own safety or for that of another person.
A person’s fear of the abuser is seen as a reliable indicator of whether violence will reoccur. Yet there might be a fear when there is no actual risk. If this is the child’s fear, it’s relevant to the assessment of the “best interest of the child.” The Court might order a supervised parenting time.
- Any compromise to the safety of the child or other family member.
This refers to the risk of future family violence. This concern is separate from the court’s assessment of someone’s fear for their own safety: risks might be significant even if a person has no fear.
- If the violent person took steps to prevent further violence and improve their ability to care and meet the needs of the child.
Various programmes exist for child abusers, like “Caring Dad”, yet participation does not guarantee change in behaviour. Assessment should be made after completion of such a programme.
The past conduct should not be taken into account “unless it’s relevant to the exercise of parenting time, decision-making responsibility or contact with the child under a contact order.”
This list is not exhaustive, and the judges could decide to take into account whatever they will see relevant and appropriate in the view of the predominant consideration of the best interest of the child.
Not yet in force
These changes into the Divorce Act are not in force yet. They were meant to become in force on July 1, 2020, but in the circumstances of COVID-19 the date was changed to March 1, 2021. If you have questions, do not hesitate to contact our office for a consultation by phone: 514-816-4150 or via email: [email protected]. Lawyers of Allen Madelin are recognized to be among the best divorce lawyers in Montreal. They defend their clients’ interests vigorously and with commitment in divorce, separation, spousal support, child support payment and custody cases. They also offer education on the important implications of the recent changes in the Divorce Act. Contact us for more information.
