We recently reported on an Ontario Superior Court of Justice decision that recognized a new foundation of liability for family violence. The judge, in that case, awarded the plaintiff damages for the common law tort of family violence after she suffered abuse during her marriage.
Family violence is also a potentially relevant factor in parenting issues before the courts. This article takes a look at the statutory framework relating to family violence along with a recent decision of the Court of Appeal for Ontario in which a mother sought sole decision-making responsibility. She alleged that the father engaged in family violence, warranting a parenting order in her favour.
Under the Canadian Divorce Act and the Ontario Children’s Law Reform Act, when a court makes a parenting order regarding decision-making responsibility or parenting time with respect to the child, the court must only take into account the best interests of the child.
In determining the child’s best interests, the court is required to consider all factors related to the circumstances of the child and shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.
The legislation contains a list of factors related to the circumstances of a child, including any family violence and its impact on, among other things, the ability and willingness of any person who engaged in the violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons to cooperate on issues affecting the child.
In recent amendments to the Divorce Act, family violence was defined as:
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…
The definition then lists various forms of violence, including physical abuse, sexual abuse, threats to kill or cause bodily harm to any person, harassment and psychological abuse.
Under the legislation, in considering the impact of family violence, the court is to take into account a range of factors, including the nature, seriousness and frequency of the violence, whether the violence is directed toward the child (or they were exposed to it) and the risk of harm to the child.
The court can only take into account the past conduct of a person if it is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with the child.
In Proulx v Proulx, the parties separated after an 18-year relationship, during which they “fought constantly”. The mother left the home with their son (now 10 years old). She also made criminal allegations against the father. He was later acquitted of all criminal charges following trial.
Following the separation, the mother and son lived in the matrimonial home in Renfrew. The father moved to Barrhaven, approximately an hour away.
The mother applied to the court seeking sole decision-making responsibility for the child, primary residence with her, and parenting time between the father and child. The father sought joint decision-making responsibility and for each parent to have equal parenting time with the child.
The mother testified that the father had a temper, that he threatened her, that he damaged property in the home, and on one occasion, that he choked her. She also testified that she had been sexually assaulted by the father, stating that at night he would force himself on her.
The trial judge preferred the father’s more detailed evidence. The judge did not accept that the choking occurred as described by the mother and also preferred the father’s evidence that he had begged for sexual attention and she consented to this without desiring intimacy. The judge said:
The mother provided no details of when the sexual assault(s) occurred, the circumstances leading up to them, the nature of the sexual activity that took place, what was discussed before, during, or after, or whether steps were taken by the father to ascertain consent, and what, if anything, she may have said in response… I do not find that sufficient evidence has been presented to establish that non-consensual sexual activity took place.
While accepting that the father engaged in yelling, was loud and prone to emotional outbursts, the judge did not find that the father’s conduct constituted family violence that warranted a parenting order in favour of the mother.
After considering the best interests of the child, the judge made an order that the parties have joint decision-making responsibility, primary residence with the mother and scheduled parenting time with the father. The mother appealed this decision.
The Court of Appeal held that the trial judge properly considered whether there was family violence. It said that the trial judge “painstakingly” considered all the mother’s allegations, weighed the relevant evidence and ultimately found against the mother. It rejected the mother’s ground of appeal, explaining that the trial judge’s findings were amply grounded in the record.
The Court of Appeal dismissed the mother’s appeal.
If you are experiencing child access and parenting time disputes, contact the experienced family lawyers at NULaw in Toronto. NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters, including decision-making responsibility (formerly referred to as custody) and parenting time (formerly referred to as access). Contact us online or at 416-481-5604 to book a consultation.
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