As part of the changes to the Divorce Act, R.S.C. 1985., c. 3 (2nd. Supp.) that were enacted in 2021, family violence is now legislated as one factor that must be considered when a Court or other decision maker determines the best interests of a child of married parents (or formerly married parents) in family law disputes. The Divorce Act defines family violence as any conduct by a family member towards another family member that is violent, 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 for a child, the direct or indirect exposure to such conduct. Under the Divorce Act, family violence includes:
A) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
B) sexual abuse;
C) threats to kill or cause bodily harm to any person;
D) harassment, including stalking;
E) the failure to provide the necessaries of life;
F) psychological abuse;
G) financial abuse;
H) threats to kill or harm an animal or damage property; and
I) the killing or harming of an animal or the damaging of property.
The Divorce Act requires Court or other decision makers shall consider any 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, and the appropriateness of making an order that would require a person in respect of whom the order would apply to cooperate on issues affecting the child. The Divorce Act also requires a decision maker to consider any civil or criminal proceedings, orders or conditions relevant to the safety security and well-being of the child. The Divorce Act lists a number of factors that the Court shall take into account when considering the impact of any family violence on a child, these factors include:
A) the nature, seriousness and frequency of the family violence and when it occurred;
B) whether there is a pattern of coercive and controlling behavior in relation to a family member;
C) whether the family violence is direct toward the child or whether the child is directly or indirectly exposed to the family violence;
D) the physical, emotional and psychological harm or risk of harm to the child;
E) any compromise to the safety of the child or other family member;
F) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
G) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
H) any other relevant factor.
The Family Law Act (Alberta) governs parenting and contact disputes for children of unmarried parents in Alberta. Like the Divorce Act, the Family Law Act also lists family violence and any civil or criminal proceedings that are relevant to the safety or well-being of the child as factors relevant to the Court’s determination of the child’s best interests. In particular, the Family Law Act outlines that the Court will consider family violence, including its impact on:
A) the safety of the child and other family and household members;
B) the child’s general well-being;
C) the ability of the person who engaged in the family violence to care for and meet the needs of the child; and
D) the appropriateness of making an order that would require the guardians to co-operate on issues affecting the child.
Regardless of the relationship between a child’s parents, the Court must be adequately informed of any history of family violence to allow the decision maker to properly consider its impact on a child as required by the legislation. It is important for both victims and alleged perpetrators of family violence to have adequate legal representation to ensure that the Court or other decision maker is provided with all the relevant information in relation to family violence necessary to make a decision in a child’s best interest.
At Family Central Law Office LLP, we have strong expertise with handling matters where family violence has occurred or has been alleged, and our experienced lawyers can help you navigate the many related legal issues that may arise when family violence is present. Please contact us today for a free consultation with our family lawyers by calling our office at 587-392-7970 or emailing info@familycentrallaw.com, or by clicking on our consultation page.
