“The court notes the special provisions in subsection 24(4) of the Act relating to family violence. The following paragraphs provide further commentary about this significant issue.
The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 made the following observations about family violence:
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- The recent amendments to the Divorce Actrecognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
- The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).
- Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).
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Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows:
The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.
In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. See: Bell v. Reinhardt, 2021 ONSC 3353.
Family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviors which are usually very difficult to prove because they often take place in private. Abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive. Victims of family violence are often the only witnesses who can attest to their abuser’s behavior and unfortunately, they are sometimes not believed because of their inability to support their allegations with objective third party evidence. See: Volgemut v. Decristoforo, 2021 ONSC 7382.
Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.
Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. See: Dayboll v. Binag, 2022 ONSC 6510; El Khatib v. Noun, 2023 ONSC 1667.
Financially controlling your spouse by deliberately making inadequate support payments can constitute family violence. See: N.M. v. S.M., 2022 ONCJ 482; F.S. v. M.B.T., 2023 ONCJ 102.
Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021 ONSC 7302; N.M. v. S.M., 2022 ONCJ 482.
The court is also very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.”