“I am very aware of the importance to take into consideration the presence of family violence in any family matter dealing with the parenting of a child (Barendregt v. Grebliunas, 2022 SCC 22). The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interest analysis (see s. 16(3)(j) and (4)). Family violence is broadly defined in s. 2(1) of the Divorce Act 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. In the case of a child, family violence includes the direct or indirect exposure to such conduct.
Section 2(1) provides a non-exhaustive list of the many forms of family violence which include physical abuse, forced confinement, sexual abuse, threats to kill or to harm, harassment including stalking, psychological abuse and financial abuse. Other types of conduct not specifically mentioned in s. 2(1) of the Divorce Act have been recognized as a form of family violence. For instance, the concept of a pattern of coercive and controlling behaviour has been found to encompass the following types of behaviours:
a) Making numerous unsubstantiated allegations against the other party;
b) Unilaterally changing court-ordered parenting time terms without justification; and,
c) Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent (A.B. v. M.G.C., 2022 ONSC 7207, at para. 184).
Assessing the credibility of family violence allegations presents significant challenges. Justice Chappel described those challenges in M.A.B. v. M.G.C., 2022 ONSC 7207, at paras. 179 and 180:
179 The social context considerations around family violence are such that the typical indicators of credibility in the litigation arena are unhelpful in some situations and may in fact lead to distorted and dangerous outcomes. For example, one traditional yardstick for assessing credibility is whether the witness can provide a clear, detailed and consistent version of the events in question, with a solid recollection of the chronology of those events. However, victims of family violence often suffer from significant trauma associated with the abuse, which may affect their ability to provide a detailed, consistent and accurate recollection and timeline of the events in question (K.K. v. M.M., 2021 ONSC 3795 (S.C.J.); aff’d 2022 ONCA 72 (C.A.)). In addition, as the Supreme Court of Canada emphasized in Barendregt, “family violence often takes place behind closed doors, and may lack corroborating evidence” (at para. 144; see also V.M.W. v. J.Mc.-M., at para. 167, per Zisman J.; W.A.C. v. C.V.F., 2022 ONSC 2539 (S.C.J.), at para. 396, per Finlayson J.). Furthermore, there may not be evidence of prior consistent disclosures of family violence to rebut claims of recent fabrication, as there are many reasons why victims of family violence may not disclose the violence (V.M.W. v. J.Mc.-M, at para. 167; W.A.C. v. C.V.F., at para. 396).
180 Notwithstanding these challenges in assessing the credibility of family violence claims, and the need for caution in relying on traditional credibility indicators, courts must remain cognizant of the reality that some allegations are in fact fabricated or exaggerated. Being closed-minded to these possibilities poses an equally serious threat to the achievement of justice in cases where family violence claims are advanced, and the courts must therefore meticulously assess the evidence in its totality to ensure that family violence claims are credible and are not being maliciously advanced to obtain a litigation advantage.
These challenges are multiplied when the court is required to assess the veracity of family violence allegations in the context of interim motions based on untested written evidence in the form of affidavits, the content of which – let’s be frank – is often extensively reviewed and tailored by counsel to meet the needs of the case.