As part of having a family law practice, we encounter clients that endure family violence.
Many non-lawyers are (understandably) unaware of the fairly recent changes to the Divorce Act which expanded the definition of family violence. If you read our MythBusters: Domestic violence is always physical post last week, then you already know that there is a common misconception that ‘family violence’ is synonymous with physical abuse only. However, family violence includes much more than physical abuse, and these changes are a good step towards addressing that myth.
The Divorce Act now states as follows:
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;
This expanded definition was a long-time coming and better aligns with some of the coercive behavior that spouses/partners have been sharing with their lawyers for many years which was not always captured by the previous definition. Coercive and controlling behaviour is a pattern of abusive behaviour which is used to dominate another family member through use of a combination of emotional, psychological, sexual, financial or other forms of abuse.
Coercive and controlling behaviour can often be difficult to identify as it does not relate to a single incident, and on its may not appear to be harmful. However, it can be just as dangerous, and in many cases is happening along side other more commonly accepted forms of violence, like physical abuse (for more examples of coercive and controlling behaviours, you can reference our MythBusters: Domestic violence is always physical post and check out our upcoming post “What We Saw and Family Law: Maid”).
Beyond expanding the definition of family violence, the Act was also amended to recognize the experience and impacts of family violence for children specifically. The Act confirms that simply witnessing or overhearing abuse between parents is in and of itself domestic violence. Further, this expanded definition, which includes children’s indirect exposure to family violence, is now a required consideration for courts in making parenting orders. Specifically, in considering the best interests of a child, the court shall consider:
(3)(j) 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,
Factors relating to family violence
(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.
These changes should help parents, judges, lawyers and other law officials make safe and appropriate parenting arrangements when there has been family violence.
Of course, this legislation is relatively new, so there is fairly limited information to date as to how the courts will apply these new laws. Given the prevalence of family violence, we are interested to see how the new changes will impact trends towards shared parenting arrangements. That will be something to watch for going forward not only in Manitoba, but across Canada, as the family law landscape continues to change before our eyes.
Richard Pollock
If you have questions about this post, contact me today at [email protected].