What is the role of violence (including separation violence) in custody and access cases?

The presence of violence in the family is an important consideration in custody and access cases. It is, as we discuss below, one of the factors in the best interests of the child test.

However, this does not mean that all judges understand how important this issue is or that all lawyers know how to present evidence about it effectively.

This FAQ looks at what the best interests of the child test is, where violence fits into that test in Ontario, what a better test might look like and how women can present (or encourage their lawyers to present) evidence of abuse effectively. (You can learn more about the best interests of the child test in another FAQ.)

The “best interests of the child” test is the test judges use when they are making decisions about custody and access. It is set out in section 24 of the Children’s Law Reform Act as follows:

24(2) The court shall consider all the child’s needs and circumstances, including,

 (a) the love, affection and emotional ties between the child and,

(i)    each person entitled to or claiming custody of or access to the child,

(ii)  other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child’s care and upbringing;

(f)  the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

24(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

24(4)  In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

24(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

Judges determine how much weight each factor is given based on the facts and circumstances of each family, so judicial discretion plays a significant role in how the test is interpreted.

You can see that abuse enters the test through section 24(2)(g), which is supported by section 24(4) and (5).

These sections have been added to the best interests of the child test relatively recently, and there is no doubt they are a big improvement. Prior to their introduction, consideration of violence was not mandatory and, in many cases, judges wanted evidence that the children had been directly involved in the violence before they would consider it when making custody and access decisions. Some judges did not want to consider violence against women at all.

However, the test could be stronger. The best interests of the child test in British Columbia’s Family Law Act provides an example of what really good legislation can look like.

Family violence appears directly in the best interests test, unlike in Ontario’s legislation where it appears in a subsequent section. The B.C. best interests test says explicitly that family violence is to be considered whether it is directed to the child or other family members. It also requires the court to consider whether the actions of the abuser indicate that the person may be impaired in their ability to care for the child.

The court must also consider whether an arrangement for the children that requires the parents to cooperate is appropriate or would increase safety risks for the child or other family members. When it is assessing family violence, the court is required look for any pattern of coercive and controlling behaviour on the part of the abuser.

(While not directly related to this FAQ, it is interesting to note that the B.C. legislation also includes a section that details when it is “not wrongful” to deny access. The reasons provided include:

  • when a parent reasonably believes the child might suffer family violence
  • when a parent reasonably believes the other parent is impaired by drugs or alcohol
  • when the child is sick
  • when there have been repeated failures to exercise access in the preceding 12 months)

Because, as noted above, not all judges (or lawyers) are well informed about the reality of violence in families and, in particular, many do not understand the extent to which abuse and violence continue (and may even escalate) post-separation and the impact this can have on important issues such as custody and access, it is important for women to present strong evidence in their case.

The standard of proof in family court is what is called “on a balance of probabilities.” This is an easier standard to meet than the criminal standard of “beyond a reasonable doubt.” However, it still requires evidence: it is not enough for a woman to simply assert that her partner abused her. She needs to provide specific, detailed information about the abuse that has happened during the relationship.

She needs the judge to understand:

  • The pattern of abuse (how often it happened, what triggered it)
  • How long it has been going on
  • Whether it is getting worse
  • Whether she has received any physical injuries
  • What the children have seen, heard or are otherwise aware of
  • The impact of the abuse on her and on the children
  • The pattern and prevalence of abuse post-separation
  • Whether she has current safety concerns based on past or ongoing abuse

The better organized the woman’s information is, the more easily it will be understood by the judge. And, the same is true if she has a lawyer and is organizing her information for her lawyer. She should:

  • Be direct and specific
  • Stay focused on the legal issues of her case
  • Be factual and avoid exaggeration
  • Not underplay the seriousness of what has happened
  • Start with the most recent event, then move back to the beginning of the relationship. She wants the other person to know immediately what is going on right now and, once she has told them that, she wants to tell her story in the order it happened

Women should include information/evidence from sources other than herself as well. This could include:

  • Records of 911 calls, if any have been made
  • Police incident reports, if she has ever called the police. Even if no charge has been laid, the police may have filed an incident report, which could contain relevant information
  • Criminal charges, bail conditions, terms of probation etc.
  • Information about any breaches of  previous family court restraining orders
  • Crown disclosure package in any criminal proceedings
  • Any comments by the criminal court judge that verify there was abuse. This evidence is best if contained in the transcript of the judge’s reasons for judgement or reasons for sentence, which can be ordered from the criminal court
  • Hospital reports, including any records from the Sexual Assault/Domestic Violence Care Centre,  if she ever went to the hospital for treatment after an assault
  • Information from her family doctor, if she ever talked to her or him or if she or he has asked her whether she is being abused
  • Her religious leader, if she has turned to her or him for support
  • Neighbours, if they have witnessed abuse or violence
  • School teachers and day care workers if the children have demonstrated an awareness of abuse at home
  • Photographs
  • Evidence of post-separation stalking
  • Her own notes or diary if she kept a record of what was happening at the time it happened
  • Emails, letters, text messages, information on Facebook by her partner that demonstrate his abuse, violence, control or harassment
  • Tape-recorded messages from the abuser
  • CAS records, including any voluntary service contracts she has signed
  • Any information from her employer about her abuser’s violence, control or harassment of her in the workplace

The task of finding and gathering all this evidence can be daunting, especially for a woman who is dealing with ongoing harassment and intimidation from her abuser as well as dealing with the trauma of past abuse. However, it is critically important if she wants the judge to appropriately apply the family violence provisions in the best interests test.

Service providers can play a critical role in supporting a woman to present the evidence of her abuse in such a way that it helps the judge understand her reality.

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