Unfortunately, domestic violence is a regular theme in family law. Whether it be physical violence, verbal/emotional abuse or sexual assault, the interplay between family law and domestic violence is something family law lawyers regularly deal with. An unfortunate fact, however, is that courts and judges do not seem to deal with this issue in a consistent way. While this is the reality of taking any family law matter to court and giving up all control to a judge with their own subjective views, domestic violence issues can be especially unpredictable.
Things may change with the incoming changes to the Divorce Act, but it remains to be seen how the courts interpret and apply the legislative changes. The new Divorce Act defines family violence as:
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;
The current version of the Divorce Act does not define family violence or make any reference to it. The new legislation not only defines family violence, it also says that family violence is a factor to be considered in determining the best interests of the child.
It will be interesting to see how these legislative changes play out in court once the new Act takes effect on March 1, 2021. In my personal experience, courts sometimes downplay family violence unless the child was directly injured or was present when the violence occurred. There has been no legislative framework to guide the court in dealing with family violence. This means there have been no enforceable laws that lawyers and judges can follow and use when advising clients. Hopefully, the new Act will lead to more consistent and predictable outcomes that protect children from the outcomes of family violence.