Significant revisions to both the federal Divorce Act and Ontario’s Children’s Law Reform Act came into effect more than two years ago; changes that included an expansive definition of family violence, a requirement that this violence be considered when decisions about children are made and new language to replace the terms custody and access.
Since then, there has been a steady increase in family court decisions that explicitly reference these new provisions and language, which is very encouraging. The changes were much needed to ensure the well-being of both children and their mothers in cases involving family violence.
It’s still a real pleasure when I come across a case in which the judge has understood the family violence language in a deep and nuanced way. A recent decision by Justice Mandhane was one such case. (You may remember Justice Mandhane from her groundbreaking decision in the Ahluwalia case, in which she established a family law tort of family violence. While her decision was overturned on appeal, the case may be making its way to the Supreme Court of Canada.)
Parenting arrangements
In the recent case, Justice Mandhane made a thoughtful ruling on the issues of parenting time and decision-making responsibility for a child as well as on spousal support, in the context of family violence.
The two parents had been married for several years, although during that time they only lived together for about 19 months. They had one child, who was 10 years old at the time of the family court trial. The father, who was represented by senior lawyers throughout the proceedings, had engaged in abusive behaviour towards the unrepresented mother, which was described by Justice Mandhane as “a pattern of violent, coercive and controlling behaviour.”
She noted:
“Overall, the Father’s behaviour during the marriage has exacerbated the Mother’s pre-existing disability and has left both the Mother and the Child in a perpetual state of hyper-vigilance, worry, and fear.”
Her decision included a highly detailed history of the parents’ relationship, including the many incidents of intimate partner abuse. The marriage was a traditionally Christian one, in which the father expected to be in charge. He was verbally, financially, emotionally and physically abusive to the mother, often when the child was present. He threatened to abduct the child and, on one occasion, threatened to kill the mother’s parents, saying he would “slit their throats,” “burn their house down,” “watch them die in the fire,” and “dance on their graves.”
She wrote:
“I am satisfied on a balance of probabilities that between 2012 and 2013, the Father was violent, threatening and financially controlling in relation to the Mother. . . both the Mother and the Child have developed serious anxiety on account of the Father’s pattern of violence during the marriage. The Mother and Child’s experiences of family violence are intimately intertwined because of their shared experience of abuse, and because of the Child’s strong attachment to the Mother. [T]he Mother has not “alienated” or “poisoned” the Child against the Father, rather, the Child’s feelings about his Father are a direct result of the Father’s own abuse.” (emphasis added)
Too often, women’s evidence of intimate partner abuse is ignored or minimized by judges who think abuse of one parent by the other is not relevant in determining parenting and decision-making arrangements. This decision makes its relevance clear, and for that I applaud it.
Justice Mandhane’s point that that the child’s feelings about his father are the result of the father’s abuse and not the mother’s actions is also important and welcome. Parental alienation claims are increasingly common in family law cases involving family violence, with abusive men alleging that their former partner has turned the children against them rather than admitting that their abusive behaviour may have contributed to how their kids feel about them.
In making her decision, Justice Mandhane noted that the child loved and wanted to spend time with both his parents but that his feelings about his father were complicated by the family violence.
Ultimately, her decision was for the mother to have primary parenting time and sole decision-making responsibility. She also required the father to participate in family counselling if he wished to seek any additional time with the child.
Spousal support
Ontario’s Family Law Act governs, among other things, spousal support. Section 33 sets out the factors the court is to consider when deciding if spousal support is to be paid and, if so, how much should be paid and for how long. These include the length of the relationship, the age of each spouse, their mental and physical health, the impact their roles within the family may have had on their income and potential income and others.
In this case, Justice Mandhane found that, despite the short length of the marriage, the mother met the criteria to receive spousal support and that, based on the factors set out in the legislation, she should receive support at the high end of the range in recognition of her parenting role during and after the marriage and because the family violence exacerbated her disability, making it difficult for her to work continuously or consistently.
She also referred to section 33(10), which states that the court shall “have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship:”
“I have no trouble concluding that the Father’s pattern of financial abuse, violence, coercive and controlling behaviour during the marriage was an ‘obvious and gross repudiation of the relationship’ that had a detrimental impact on the Mother’s economic circumstances, and which favours an order of support at the high end of the range.”
It’s a happy day when I can read a decision like this one.