“If the court finds that there has been family violence then s 24(4) directs the court to take into account the factors set out in that subsection when considering the impact of that family violence.
Exposure to conflict has been called the “single most damaging factor for children in the face of divorce”: per Backhouse J., in Graham v. Bruto, [2007] O.J. No. 656 (S.C.), at para. 65, aff’d 2008 ONCA 260 (CanLII); Mattina v. Mattina, 2018 ONCA 641.
The Supreme Court of Canada has specifically addressed the issue of family violence in the context of the best interests analysis under the Divorce Act, the provisions of which are similar to the CLRA: Barendregt v. Grebliunis, 2022 SCC 22. Findings of family violence are a critical consideration in the best interests analysis. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives and can result from direct or indirect exposure to domestic conflicts.
The Court must objectively assess the frequency, severity and recency of the incidents of family violence in weighing its impact upon a relationship. Human relationships are not easy, and the court must be very cautious, and must take a broad and comparative approach, in assessing the impact of family violence on post-separation parenting. Family violence, and its impact, is thus best assessed by the placement of each individual case on a spectrum that accounts for frequency, severity and recency: Abaza v. Adam, 2023 ONSC 1776.
Children may experience family violence in a variety of ways; they may be the direct victims of family violence, they may be directly exposed to family violence by one family member towards another or may experience the aftermath by observing injuries, seeing police and CAS investigations as well as observing the emotional turmoil that follows: S.V.G. v. V.G., 2023 ONSC 3206.
Violence may not be physical but may be emotional or psychological. Denigrating the other parent in front of the children or within earshot meets the definition and can be devastating to the child.
Parents should be encouraged to resolve disputes outside the court when not affected by family violence or a power imbalance: Colucci v. Colucci, 2021 SCC 24. It is therefore essential that the court consider whether a co-operative parenting arrangement is appropriate where there has been family violence.
The court also must remain alive to the possibility that some allegations are fabricated or exaggerated. Ignoring such a possibility poses a serious threat to the furtherance of justice in cases where family violence claims are advanced; the court must ensure that the claims are credible and that they are not being advanced to obtain a litigation advantage: S.V.G. v. V.G., 2023 ONSC 3206.
Unwarranted calls to authorities, such as the police and CAS can be psychological abuse as can surreptitious recordings, insults, unwarranted criticism about parenting and demanding to know whereabouts: K.M. v. J.R., 2022 ONSC 111; Dayboll v. Binag, 2022 ONSC 6510.”