April 11th, 2022
The area and practice of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FamilyMatters is the Lerners Family Law Group's weekly update on how that change is being made:
On March 21, 2021, major changes to Canada's Divorce Act came into effect. One key change was the addition of family violence when a Court sets out decision-making responsibility or allocates parenting time.
The Divorce Act defines family violence as conduct "… towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct".
The law recognizes that abuse extends far beyond physical and sexual abuse but includes threats to kill or harm to any person, harassment, failure to provide the necessaries of life, psychological abuse, financial abuse, and making or following through on threats or kill or harm an animal or damage property.
The Law in Practice.
What types of behaviours have Courts found to be family violence?
Earlier this year an Ontario Judge found that a father had engaged in family violence after demonstrating an inability to manage conflict and control his temper. Some of the behaviour which led to the Judge's conclusion included:
Duvet incident: one weekend, the mother and father were putting a duvet cover on a duvet. As they were putting the duvet cover on, they heard it tear. The mother told the father to be careful. In response, the father began to tear the duvet cover "more and more." He was angry and swore at the mother. He said it was her fault. He insisted that she go right away and buy a new duvet cover. The mother was scared. She left immediately to buy the duvet cover.
The dentist incident: after the children's first dental appointment, the father was upset, having to do with the cost and insurance coverage. He was loud and angry with the dentist's receptionist. The dentist came to see what was happening. The dentist told the receptionist to give the father back the money because it was not worth it. The children saw this. On their way to the car, the children were upset. The mother tried to hold their hands. That is not what they wanted. They both wanted to be held by her.
In P.A.J.H. v. M.K.H., 2021 , a mother testified about harassment and verbal abuse, which, among other actions, included the father making false allegations that she was soliciting herself on prostitution websites, and threatened to call media organizations to make false allegations. The Judge held that the father's threats and harassment constituted family violence, and it was in the child's best interests to further restrict the father's parenting time.
Drawing the Line.
If exposing a child to an inability to control one's temper is exposing a child to family violence and unacceptable, then, in the greater social context, exposing a child to what other types of behaviors is exposing a child to violence, and as a result equally unacceptable.
With the initiation of war by Russia against Ukraine, children are exposed to daily acts of aggression. With each shooting, targeted or random, children are exposed to maiming and death. With many protests or demonstrations, children are exposed to people or things being doused with paint, destruction of property, and unbridled noise. With political campaigns, children are exposed to name-calling and things being thrown.
These exposures are direct or indirect through news outlets and social media. Are they exposing a child to violence? Are these exposures child abuse? And in the greater social context, are these exposures acceptable? It's time to get the conversation going.
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