Almost a year has passed since the implementation of significant revisions to the parenting provisions in Canada’s Divorce Act. The changes include new language, a detailed definition of family violence, and a list of 11 criteria to guide courts when applying the best interests of the child test.
Here’s a look at a few of the cases that have been decided since the new provisions came into effect.
Flexibility not always good
In a case that the judge described as “an ongoing high-conflict dispute,” the father wanted to increase his parenting time with the two young children. The mother opposed this because there had been a history of physical and emotional abuse and she continued to be concerned about potential violence.
In making his decision, the judge wrote:
“Flexible arrangements may not be appropriate for parents unable or unwilling to cooperate or communicate with each other. Detailed agreements or orders specifying the arrangements for the children may make it less likely that the children will be exposed to conflict between the parents. In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence.”
The court considered the issue of parental alienation in a case that began several years ago. The children had been removed from the mother and placed with the father on the basis of his allegation that the mother had alienated the children from him. During the 6½ years that followed, the mother had very little contact with her children. Eventually, the court reversed the original decision, finding that it was the father, not the mother, who had been alienating the children.
The trial judge concluded that “that the mother did not engage in any alienating conduct, but rather was the target of the father’s vilification and parental alienation.”
The judge also found that the father’s “relentless” manipulation and undermining of the mother’s relationship with the children had caused “irreparable harm.” She denied the father even supervised parenting time on a temporary basis, noting that a period of “no contact with the father” was in the child’s best interests.
Going beyond the physical
The new provisions related to parenting in the Divorce Act, mirrored in Ontario’s Children’s Law Reform Act, include emotional/psychological abuse in the definition of family violence. In one case decided since these changes came into effect, the court determined that the father had used parenting time to maintain power and control over his former wife; largely by telling the young children terrible lies about her, disregarding court orders and disrupting the mother’s and children’s schedules by picking up and returning the children at random times.
The mother sought to reduce the father’s access as a result of his behaviour.
The judge noted that, if the court did not act, the children would be subjected to ongoing and worsening instances of emotional abuse. She also found that the father’s ongoing denigration of the mother and grandmother in front of the children “could be considered family violence under the Divorce Act:”
“The recent amendments to the Divorce Act include a definition of family violence that goes beyond a physical assault. It includes any conduct by one family member against another that is threatening or causes another family member to fear for their safety or for the safety of another person (including the children), and which includes psychological abuse.”
Basic respect required
Another case involved a family in which the husband insisted that he was the “head of the household” and that it was his wife’s role to serve him. His abuse was verbal, emotional and physical; he controlled every aspect of the wife’s and children’s lives. This controlling and abusive behaviour continued after the relationship ended.
In her decision to grant the mother sole decision-making responsibility, the judge identified:
“tremendous concerns that [the father] will use this decision-making responsibility and authority to control the children and eliminate [the mother] from all aspects of the children’s schooling and activities.”
She also noted that the Inability to have good communication is a risk factor for conflict, which in turn is a risk factor for children:
“joint custody requires a basic level of respect and civility between the parents so that meaningful communication regarding the children can occur. Both parents must have the opportunity to express their views and have meaningful input into the decisions that have to be taken. . . . However, communication of this caliber will not occur in an environment or [sic] verbal abuse or intimidation. What happens is that the views of the bullying parent prevail, whether or not they are in the child’s best interests. No parent should be expected to subject himself or herself to the bullying of a former spouse in the name of joint custody.”
Keeping mothers safe
Even when there is no physical abuse, the court can make a finding of family violence. In this case, none of the husband’s abuse was physical and almost none of it was directed at the child.
The judge found the mother’s evidence about the abuse to be reliable and credible and the father’s denial of any wrongdoing to be unreliable, exaggerated and untruthful.
“[I]t is his non-physical behaviour that primarily creates “family violence.” The father’s behaviour consists of uncontrollable anger, denigrating comments, threats and harassment aimed at the mother, child, Society workers, teachers and others. It is behaviour that the child has witnessed on many occasions. The behaviour is relentless and continued during the trial. . . The turmoil and emotional harm to the child that results from the father’s conduct is obvious. . . . The father has shown a pattern of coercive and controlling behaviour aimed at the mother. . . It is in a child’s best interests that his caregiver is physically and emotionally safe. As a result of the father’s violence, the mother is not safe.”
What lies ahead
It’s early days yet to see how the changes to the Divorce Act and, in Ontario, to the Children’s Law Reform Act, will play out in the courts. Some decisions still seem to place contact with both parents ahead of concern for the safety of children and mothers. However, a strong body of positive decisions like these has emerged already, which is cause for hope.