Case Summary: Family violence and parenting arrangements
In this decision, Justice Mandhane makes a number of important statements with respect to family violence and parenting arrangements. She also explores the concept of applying restorative justice principles in family law cases.
Background
The parents met online and began dating in 2009. They started living together in 2012 and got married in 2015. They have two children: a son, who was born in 2015 and a daughter born in 2016. The relationship was “rocky throughout,” and the parents separated for the final time in 2020.
Note: While this case also dealt with support and property matters, this case commentary is limited to discussing the parenting arrangements in the context of family violence and the restorative justice approach brought by the judge.
Parenting arrangements and family violence
Since the parents’ separation, the children had lived primarily with the mother in the matrimonial home, seeing the father, who lived with his parents, sporadically. This was due in part to his work schedule, as well as to no-contact orders in place after he was charging criminally because of his abuse of the mother. As well, over time the son refused to spend time with his father.
During this time, the father paid no child or spousal support, even though the mother was at home full-time caring for the children.
The father brought an application seeking joint decision-making, increased parenting time and a police enforcement clause, claiming the mother frequently withheld the children from him. The mother responded by asking for sole decision-making responsibility and primary parenting time. She denied there was any need for a police enforcement clause, suggesting that the access difficulties were, in part, the result of the son refusing to see his father. She wanted the son to receive counselling to help him feel more comfortable with his father, but his father had refused to permit this.
The father denied that he had engaged in family violence, despite the mother having had to call both the police and child protection authorities on a number of occasions, some of which led to the father being criminally charged.
Justice Mandhane makes a finding of family violence that has had a negative impact on the children, writing at paragraph 2:
“On a balance of probabilities, I find that the Father engaged in a five-year pattern of psychological, sexual, physical and financial abuse, coupled with controlling behaviors.”
She describes the cycle of abuse in a clear way and notes that it repeated itself throughout the relationship, meaning that both children were exposed to ongoing conflict.
She also relies on corroborating evidence to support the mother’s evidence of “a pattern of violent, coercive and controlling behaviour throughout the relationship:”
- Police and child protection reports made by the mother
- Criminal charges of sexual assault and assault laid against the father
- Testimony by the mother’s therapist
- Corroboration of financial abuse by the mother’s brother
- The son’s post-separation behaviour, which she found to be consistent with a child who has witnessed violence
- The father’s own admissions about the relationship
Justice Mandhane makes an important point at paragraph 48, in response to the father’s submission that because he was not convicted in criminal court there was no factual basis on which to make a finding of family violence:
“The criminal charges are not determinative of whether family violence occurred within the meaning of the Divorce Act.. . . In short, the fact that an accused might have been acquitted of charges related to specific incidents in a marriage, is not dispositive as to whether family violence occurred. “
She also notes that the father has not accepted any responsibility for the family dynamics and has denied the IPV, while blaming the mother for his limited parenting role and refusing to consent to therapy for the children. (According to the OCL report, the father blamed the court system for being biased against fathers.)
She is explicit that there is no presumption in favour of joint parenting time in the Divorce Act, noting that “the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s best interests.” (para. 26)
Justice Mandhane thoroughly canvasses the issue of family violence in the context of the best interests of the child test to make her decision that:
- the mother will have decision-making authority in all areas except extracurricular activities
- the father will have decision-making authority in relation to extracurricular activities
- the father’s parenting time will gradually increase, once he has completed the therapeutic interventions recommended by the OCL (emphasis mine)
- exchanges of the children will take place at their school
- there will be no police enforcement clause
- the parents will limit their contact to parenting issues and use a parenting communication app
- before returning to court should they want to change the order in the future, the parents will use a parenting coach to try to resolve the issue
Restorative justice
In her decision, Justice Mandhane writes at paragraphs 3 and 4:
“This is what the epidemic of IPV looks like through the distorted lens of the adversarial justice system, and this case made me question deeply my role as a judge. Criminal courts hold perpetrators accountable; child welfare courts protect children from harm; and civil courts award damages to victims; but what is the role of family courts when making parenting orders? In my view, our role must be restorative, rather than punitive, preventative or even reparative. This is because, despite a history of IPV, parents will often maintain a relationship for years into the future. . . .
“ . . . A restorative approach means restoring dignity, trust, emotional resilience and peace to the family relationship . . . . [and] acknowledges the complex family dynamics that underpin violent relationships, encourages each party to take responsibility for their role, builds each parent’s capacity to meet their ongoing parenting role within the family and reduces conflict so that the parents can focus on their children’s current and future needs.”
She writes, at paragraphs 73 and 74, that restorative justice is an appropriate outcome because of the “widespread and insidious nature of IPV, and its ubiquity within family unions,” says that it is “an antidote to stereotypical reasoning about the nature of IPV” and requires judges to “delve deeply into the dynamics and patterns that underpinned the violent relationship,” while understanding that “IPV exists on a spectrum:”
“This depth of analysis forces courts to move beyond an episodic approach and the binary victim-perpetrator dichotomy to isolate the broader family and social dynamics at play. . . [to find] a pathway towards transformative justice, or social change through a deeper understanding of how violence manifests itself in intimate partner relationships and families.”
While noting that RJ will not be appropriate in all cases, she finds that it is in this one. Justice Mandhane grants the father some decision-making responsibilities as a way for him to “build trust with other family members” and ties his increased time with the children to his completion of programming recommended by the OCL, noting that his focus should be on acknowledging the harm he has contributed to, working towards an apology to his family and committing to other steps to repair the harm to the mother and children.
Justice Mandhane also bases her order for the mother to participate in therapeutic programming on a restorative justice approach, writing that the children will not be comfortable during transitions or when with their father “until the Mother can build up her own emotional resilience.”
In rejecting the father’s request for a police enforcement clause, Justice Mandhane writes:
“In general, I see police enforcement of parenting orders as anathema to the goals of a restorative approach; they should be avoided unless there are ongoing safety concerns.” (para. 88)
The introduction of the concept of restorative justice to a family law case is new. It will be interesting to see if Justice Mandhane’s thinking is picked up in other family law cases involving family violence.
