Domestic violence or intimate partner violence is unsettlingly common in Canada. Reports of domestic violence account for approximately one quarter of all police reported violent crimes. We also know that a large portion of domestic violence goes unreported.
Why is the issue of domestic violence relevant to family law?
Not only does a history of violence inform how family law lawyers negotiate, communicate or otherwise proceed in their representation of a client, it is also relevant to issues of parenting under various laws in Ontario.
Parenting
The Children’s Law Reform Act, directs a court to consider whether a person has at any time committed violence or abuse against: (a) his or her spouse; (b) a parent of the child; (c) a member of the person’s household; or (d) any child. While a history of violence may not disqualify a parent from having parenting time with a child, it may require that safeguards are put in place.
On July 1, 2020, the Divorce Act will be amended to specifically recognize the relevance of family violence. The Divorce Act defines family violence as:
- physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
- sexual abuse;
- threats to kill or cause bodily harm to any person;
- harassment, including stalking;
- the failure to provide the necessaries of life;
- psychological abuse;
- financial abuse;
- threats to kill or harm an animal or damage property; and
- the killing or harming of an animal or the damaging of property.
It is important to note that the behaviour does not have to be criminal to be considered by a court.
A court will have to consider the impact of family violence on parenting and contact arrangements, including its impact on the ability and willingness of the person who engaged in family violence to care for and meet the needs of the child.
Where there is domestic violence/intimate partner violence/family violence, it may not be appropriate to agree to joint or shared custody.
Exclusive Possession of the Matrimonial Home
If your spouse is violent, you can request an order form the court granting you exclusive possession of the matrimonial home. This will force the other spouse out of the home (regardless of who is on title to the home).
Child Protection Concerns
If the violence is directed at children or if the children are exposed to or witness family violence, you should report it to your child protection agency. It is important to note that all persons, including parents have a duty to report violence or possible violence to child protection agencies.
If you are involved in a family situation in which there is domestic violence, intimate partner violence, or family violence, please contact us at Frenkel Tobin. We have years of experience addressing these issues and can help you navigate the challenges of family law.