“Family violence has always been relevant in the assessment of a child’s best interests: see for example Freitas v. Christopher, 2021 ONSC 2340 ¶ 43 and 44. See also ¶ 30 of McLellan v. Birbilis. Since March 1, 2021, family violence is defined in section 18(1) of the Children’s Law Reform Act. It means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct. At ¶ 237 of Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201, Sherr J. wrote that, “…family violence has been defined and given heightened importance as a best interests factor in the recent amendments to the Act. It is an issue that this court takes very seriously when assessing a child’s best interests”.
Section 18(2) makes it clear that the conduct need not constitute a criminal offence to be family violence. The section includes a non-exhaustive list of nine kinds of behaviour that constitute family violence. Physical abuse, psychological abuse, threats and harassment, all of which are in issue in this case, are amongst that list in section 18(2). As Tellier J. found, the Court is not precluded from finding that other conduct fits within its meaning, too: see ¶ 27 of McLellan v. Birbilis.
Section 24(3)(j) of the Children’s Law Reform Act provides that 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, are factors related to the child’s circumstances in the best interests analysis. If a finding of family violence is made, section 24(4) directs the Court, when considering the impact of family violence under section 24(3)(j), to consider a further list of factors. Those include the nature, seriousness and frequency of the violence and when it occurred, patterns of behaviour, whether the violence was directed towards the child or whether the child was exposed, safety concerns, any preventative steps taken and “any other relevant factor”.”