Domestic Violence & Best Interest of the Child

Although domestic violence, also known as family violence, is not a new concept, it has only recently been made a legal consideration following the passage of Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and the make consequential amendments to another Act.1 Per the amended Divorce Act2, as of March 1, 2021, the court must consider the presence of family violence under the best interests of the child test.

Domestic violence is not something that happens as an isolated event; it is often a pattern of emotional, sexual, physical, and psychological abuse and threats of abuse spanning at least part of an intimate relationship.3 Domestic violence is not limited to the adults in an intimate relationship; it can affect anyone living in the household, including children and pets.

Prior to Bill C-784, the previous Divorce Act5 was silent on family violence despite the extensive research available on the matter. The new definition of family violence in the amended Divorce Act6 is a step in the right direction and is as follows:

2(1): 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 behaviour 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;

Per the amended Divorce Act7, the court must consider a child’s physical, emotional and psychological safety, security, and well-being above all else. The following are factors that the court must take into account when making a parenting or contact over: Under section 16(1)8, the court shall take into consideration on the best interests of the child of the marriage in making a parenting order or a contact order...

(3)(j) and consider any family violence and its impact on, among other things

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child, and

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.


Factors relating to family violence9

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

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

(b) whether there is a pattern of coercive and controlling behaviour 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 their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

It is important to note that family violence under the amended Divorce Act10 carries a different burden of proof than in criminal law. Under family law, the burden of proof is on a balance of probabilities rather than the criminal standard of beyond a reasonable doubt, which means a lower threshold of guilt is needed in family law for a finding of family violence. Family violence affects an alarming number of Canadians and separation and divorce can exacerbate an already volatile relationship11. The new definition and mandatory consideration of family violence is a step in the right direction for increasing protection for children and abuse survivors and for creating greater uniformity in decision-making across the country.12 Prior to the considerations under the amended Divorce Act, more often than not, judges did not turn their minds to the potential presence of family violence. If they did, it was not uniform across the country. The new definition is important as it recognizes that family violence is not limited to physical or sexual abuse, but also includes coercive control, which can be exceptionally dangerous.

While the new definition and mandatory consideration of family violence in family law proceedings is an essential step in supporting families, it is crucial to note that there are still barriers for abuse survivors including: the high cost of family law litigation; fear of the abuser; intersectionality with other issues including marginalization and discrimination which affect access to legal services amongst other things; cultural considerations; being believed by parties within the legal system; legal bullying tactics employed by the abusive party such as choosing to be self-represented to maintain direct contact; being failed by one’s lawyer who may not be trained in family violence recognition or who lacks sensitivity around family violence; and being forced to partake in alternative dispute resolution which the amended Divorce Act13 mandates for families to consider.

The amended Divorce Act14 is a significant step forward in recognizing the detrimental effects of family violence on abuse survivors and children, yet it is just the first step. For there to be real and meaningful change in preventing family violence and ensuring the safety of abuse survivors and children, it is of utmost importance that additional safeguarding measures are incorporated into various systems. As well, certain barriers that abuse survivors face must be addressed including difficulties with reporting family violence, the social stigma around intimate partner violence, and the overall access to justice problems within the family law system. While meaningful effort in Parliament, society, and the legal system has been initiated, more can be done for abuse survivors and children; it shouldn’t be this hard to protect and support family violence survivors.

If you or someone you know is experiencing family violence, please consider getting help; you do not have to go through it alone. Please consult the resources at: https://endingviolencecanada.org/getting-help-2/

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