Family violence, what is it and how does it affect my separation / divorce?

Jan, 2025

According to the Divorce Act, “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 behavior 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

(a)   physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b)   sexual abuse;

(c)   threats to kill or cause bodily harm to any person;

(d)   harassment, including stalking;

(e)   the failure to provide the necessaries of life;

(f)     psychological abuse;

(g)   financial abuse;

(h)   threats to kill or harm an animal or damage property; and

(i)     the killing or harming of an animal or the damaging of property.

Family violence affects the way that family matters are dealt with through the family court system in numerous ways. Firstly “cruelty” is considered a determinative factor a court uses to establish whether to grant a divorce order prior to the parties being separated for more than 1 year, which would typically be the standard amount of time required to be separated to get a divorce in Canada. The reason cruelty is a factor is because courts consider the mental and physical well-being of the victim in family violence related cases. If the police are involved then courts will often pair orders for divorce with restraining orders, or other forms of communication restriction. Judges understand that by allowing the parties to continue to be associated with each other under the law it can lead to the harm of the victim’s mental health.

When the police are involved in a family law case, and criminal charges are laid, it causes the parties to have a criminal and a family matter in the court system that they must deal with separately. This means that a Defendant may seek representation for both the family and the criminal matters. The Complainant may seek representation for the family matter, as their role in the criminal matter is represented by the Crown.

Secondly, when children are involved in family violence, the court considers family violence as a determinative factor when considering the “best interest of the child” regarding Parenting Time and Decision-Making Responsibility. The factors a court considers are the following:

(a)  the nature, seriousness and frequency of the family violence and when it occurred;

(b)  whether there is a pattern of coercive and controlling behavior in relation to a family member;

(c)  whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d)  the physical, emotional and psychological harm or risk of harm to the child;

(e)  any compromise to the safety of the child or other family member;

(f)  whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g)  any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h)  any other relevant factor.

Depending on a balance of the above factors and other factors related to the best interest of the child, a court will determine how much parenting time or decision-making responsibility a parent who committed family violence should receive in consideration of the best interest of the child. This often manifests as supervised parenting time with the children, or parenting time in certain designated locations, etc.

The circumstances also change when the Children’s Aid Society or the police is involved. Typically, courts investigate the file with the CAS and ask for a report from the caseworker assigned to the file. Depending on what is written in the CAS file the court may use it as a determinative factor in assessing the best interest of the child(ren).

Depending on the family situation and the result of the designation of parenting time and decision-making responsibility, it can affect spousal support, child support, possession of the matrimonial home and more.

If you have any questions regarding family violence or family matters in general, book a consultation with one of our family lawyers today.