Putting Children's Interest First - Federal-Provincial-Territorial Consultations on Custody and Access and Child Support

Part 1: Parenting after Separation or Divorce (continued)

FAMILY VIOLENCE

Family violence can take many forms, including physical violence or threats, sexual abuse, and emotional or psychological harm. Children can experience family violence directly as victims of abuse by a parent or sibling. They can also experience violence indirectly as witnesses to violence by a parent against another family member. Sometimes they experience both.

Family violence in any form is particularly harmful to children, no matter how they experience it. Research has shown that children who witness violence by one parent against the other often suffer emotional trauma, find it hard to deal with others, show increased aggression, have fewer close emotional ties, and experience disrupted parenting. These children are also at greater risk of becoming victims and perpetrators of violence themselves.

The presence of family violence can make the issues and choices separating or divorcing parents face even more complex. It is important for governments to ask Canadians about family violence - to help them assess what impact the presence of past or current family violence should have in determining the roles and responsibilities of parents at the time of separation or divorce.

There are ways in which the legal system could respond to the presence of family violence when parents are separating or divorcing, including the following:

  • Specialized assistance or services could be provided to these families. Currently, provinces and territories already provide such services in emergencies through shelters and transition homes. Long-term counselling and support programs are also available.
  • The law could offer specialized assistance to victims of domestic violence. Currently, certain provinces and territories have legislation in place that defines family violence in order to offer victims a higher level of protection through such measures as emergency protection orders.
  • The law could state whether or not family violence would be a relevant consideration when making parenting arrangements and, if so, under what circumstances and to what extent.

Most provincial and territorial family laws do not specifically say that judges must take family violence into account when resolving parenting disputes. However, judges often do. Only the laws in Newfoundland and the Northwest Territories require a judge hearing a custody or access application to take family violence into account. For example, the Newfoundland Children's Law Act requires judges to consider whether a person has ever acted violently towards his or her spouse or child when assessing that person's ability to act as a parent.

Currently, the Divorce Act says that, after divorce, children should have as much contact with each parent as is consistent with their best interests. The law also says that judges must take into account the willingness of each parent to facilitate contact between the children and the other parent when making parenting decisions.

The provision reflects a general assumption that the needs and interests of the children are best met when the children maintain significant contact with both parents. This principle has been controversial. Some have argued that this provision, known as the "maximum contact provision," is unfair and creates dangerous situations because it does not require judges to think about the possibility of family violence.

Here are some examples of how family violence is being taken into account in parenting arrangements around the world:

  • The Australian Family Law Act includes family violence as one of a number of factors to consider when determining children's best interests.
  • New Zealand and several American states have provisions in their laws, referred to as "rebuttable presumptions," that limit a violent parent's role in his or her children's lives, unless the parent can prove that such a limit is not in the children's best interests. The degree to which the parent's role is limited varies. Judges in New Zealand, for example, generally do not order custody or access, other than supervised access, to a violent parent.
  • The law in California uses a combination of approaches. It contains a general statement that exposure to violence harms children; includes family violence as a factor to be considered when determining children's best interests; and has a rebuttable presumption against ordering custody to a violent parent.

This section looks at how governments could respond to situations of family violence when parenting decisions are being made.

Looking at the Law

There are several approaches governments could take to promote child-centred decision-making in situations of violence to ensure the safety of children and others. Which of the following approaches would best serve that purpose?

  • Make no change to the current law.
  • Include a general statement in the law that acknowledges that children who are victims of violence or who witness violence are negatively affected, and that family violence poses a serious safety concern for parents and children.
  • Make family violence a specific factor that must be considered when looking at children’s best interests, and when making parenting decisions. The degree to which contact and decision-making are limited could be set out in the law or left to the judge to decide.
  • Establish a rebuttable presumption of limited parental contact and a limited decision-making role for a parent who has committed family violence. This means that, when a parent has committed family violence, his or her contact with the children, as well as his or her role in making decisions concerning the children, will be limited in some way, unless the parent can prove that this would not be in the children’s best interests.
  • Restrict the impact of the "maximum contact" provision by moving the principle from section 16(10) of the Divorce Act into the section that deals with the "best interests of the child." This way, judges would balance the principle of maximum contact with other important criteria related to the best interests of children. Within the context of family violence, judges would not take into account the willingness of each parent to facilitate contact between the children and the other parent. This helps the victim of abuse not to be afraid to raise the issue of violence.
  • A combination of the above. Please specify in your feedback booklet which of the approaches you would combine.

Please describe in your feedback booklet any other legislative approaches that you think would be helpful to ensure that family violence is taken into account when parenting decisions are being made on separation or divorce.

Looking at Services

Please check the six services from the list below that you think are most effective in ensuring that the issue of family violence is addressed when parenting decisions are being made after separation or divorce.

Information and Education Services

Education on family violence for parents and children:
this usually involves workshop-type sessions to improve parents’ and children’s understanding of the impact of family violence.
Information for professionals:
this refers to resource material that is distributed to individuals and organizations such as judges, family-law lawyers, mediators, law libraries, law associations, public libraries, family-service organizations, resource centres and all family-court offices. This could also include training sessions for professionals.

Support Services

Counselling for children:
this usually consists of programs that children can attend to focus on issues that relate to witnessing conflict and violence.
Counselling for parents:
this covers anger management, conflict resolution, debt reduction, substance abuse and employment.
Legal aid:
this service provides legal advice or representation to financially eligible parents.
Psychological assessments: these identify and provide understandings of children’s needs and the parents’ willingness and ability to meet those needs. The assessor’s recommendations may help parents reach a settlement or help a judge make an order.
Supervised access and exchange centres:
these offer a safe, supervised environment for children’s access and for parents to drop off and pick up their children.
Psychological services for parents and children.
Partner-assault response programs:
these offer groupcounselling for the assaulting partner and teach alternate means of dealing with conflict. These programs are often a compulsory component of a criminal conviction for domestic assault.

Other Services

Expedited court procedures:
a finding of family violence places the court case in a faster stream for resolution. In addition, parents do not have to go to mediation, and they take different parent-education programs from those other parents attend.

If you have had any personal experience with any of these services, please comment in your feedback booklet on how useful the services were in ensuring that family violence is taken into account when parenting decisions are being made.

Please describe in your feedback booklet any other family law services that you think would be useful to ensure that family violence is taken into account when parenting decisions are being made.

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