Recent Developments In Family Law To Address Family Violence – Divorce

Irina Baranova


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Family violence is serious.

To address this, several recent changes have been made to
legislation, a common law tort of family violence has now been
recognized (as of February 2022), and on May 20, 2022, the Supreme
Court of Canada outlined the impact of family violence on parenting
and a spouse.

LEGISLATION

The Divorce Act  and Children’s
Law Reform Act 
were changed in 2021 to add family
violence as a consideration when determining the best interests of
a child (Divorce Act,  sections
16(3)-(4); Children’s Law Reform,  sections
24(3)-(4)).

Family violence has been held to have a “broad”
definition (Barendregt v.
Grebliunas
2022 SCC 22, para. 146), which
recognizes “the many insidious forms that domestic violence
can take other than physical violence” (Armstrong v.
Coupland
, 2021 ONSC 8186, para. 21).

While the Divorce Act 
and Children’s Law Reform Act  provides
examples of family violence, the respective lists have been held to
be non-exhaustive, leaving the Court open to concluding other
conduct falls within the meaning of family violence, such as
cyber-bullying (S.B. v. J.I.U., 2021 ONCJ
614, paras. 27, 38; 
Armstrong v. Coupland
2021 ONSC 8186, para.
21).

A recent direction from the Divisional Court, on appeal, was
that “[e]ven if there is no objective evidence, judges must
make some attempt to analyze the evidence of family violence
without dismissing it out of hand as merely unsupported
allegations…” (Bidgood-Lund v. Marston, 2022 ONSC
2357, para. 50).

In the end, “Courts must consider family violence and its
impact on the ability and willingness of any person who engaged in
the family violence to care for and meet the needs of the
child” (Barendregt v.
Grebliunas
2022 SCC 22, para. 146)

THE TORT OF FAMILY VIOLENCE

A significant development has been the recognition of the tort
of family violence. In A. v. A., Mandhane J.
recognized, for the first time, the tort of family violence, and
awarded damages of $150,000.00 (2022 ONSC 1303).

Mandhane J. reasoned that:

  1. “[t]he Divorce Act does not provide a victim/survivor
    (“survivor”) with a direct avenue to obtain reparations
    for harms that flow directly from family violence and that go
    well-beyond the economic fallout of the marriage” (para.
    46).

     

  2. The recognition of this tort “is consistent with the
    overarching imperative to remove the economic barriers facing
    survivors that try to leave violent relationships and access
    justice” (para. 67); and

     

  3. Extreme power imbalance needs to be addressed: “courts
    must send a strong message that it is not acceptable to resort to
    violence in the domestic context” (para. 70).

The elements of the tort were shaped off the family violence
changes to the Divorce Act  (para. 52), and now
provides a new remedy.

SUPREME COURT OF CANADA INPUT

Lastly, the Supreme Court of Canada, in Barendregt v.
Grebliunas, 
addressed many important aspects of family
violence, the impact of this conduct, and the harms. For
example:

  1. Impact on Parenting Ability:  the Court
    addressed family violence in relation to children and parenting
    ability (para.
    143
    ):

“The suggestion that domestic abuse or family violence has
no impact on the children and has nothing to do with the
perpetrator’s parenting ability is untenable. Research
indicates that children who are exposed to family violence are at
risk of emotional and behavioural problems throughout their
lives…”

  1. Harms: the Court noted that the harm can
    result from direct or indirect exposure (para.
    143)
    :

“Harm can result from direct or indirect exposure to
domestic conflicts, for example, by observing the incident,
experiencing its aftermath, or hearing about it…”

The Court stated that family violence not taking place in the
children’s presence “could not be determinative” as
indirect exposure to conflict [can] have
implications for the children’s welfare…” (para.
185)

  1. One Incident: the Court recognized the
    difficulty in proving domestic violence (para.
    144
    ), and that it mostly goes unreported (para.
    145
    ),stating that “proof of even one incident may
    raise safety concerns for the victim or may overlap with and
    enhance the significance of other factors, such as the need for
    limited contact or support” (para. 144)

The Supreme Court importantly noted that “cooperating,
staying, or reconciling with a party does not necessarily indicate
that an incident of abuse or violence was not serious”
(para. 186).

The change in legislation, creation of the tort of family
violence, and Supreme Court input in the area of family violence
are providing a clear message that this conduct must be considered
by the Courts and has consequences.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be ought
about your specific circumstances.

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