A Legislative Response to Domestic Violence in Ontario Families
By Ivana Vaccaro, Partner at RV Law
The scope of this paper is not intended to cover the global presence or implication of domestic violence and therefore I will not speak of the relentlessness of such violence on an international level and the failure of many governments to acknowledge and condemn it. Instead, this paper will focus on the Province of Ontario and discuss how the provincial legislature has responded to the rising incidents of domestic violence and its impact on the determination of such family law issues as divorce, custody, access, support, mobility rights, restraining orders and other related issues.
The Government of Canada has maintained a database for annual statistics related to family violence in Canada since at least 1998 (and informally, since at least 1977). The statistics clearly demonstrate that reports related to family violence are on the rise.
In 1996, there were 21,901 cases of spousal assault recorded in a sample of 154 police departments across Canada. The portion of male victims of spousal assault was relatively small (11%) as compared to female victims (89%). Fast forward to 2007 and nearly 40,200 incidents of spousal assault were reported to police. While the majority of the victims of spousal assault continue to be female, the 2009 data collected suggests that there has been a rise in the incidents of spousal assault reported by males and by younger Canadians, generally.
In 1996, children under the age of 18 made up 24% of the Canadian population and were the victims in 22% of all violent crimes reported to a sample of 154 police departments. Moreover, 60% of police-reported sexual assaults were against children, 32% of these incidents occurring at the hands of a family member. Fast forward again to 2007 and nearly 53,400 children and youth were the victims of a police-reported assault, with 3 in 10 of these incidents being perpetrated by a family member. When children and youth were victims of family violence, a parent was identified as the abuser in nearly 6 in 10 incidents. These are the reported cases. Many cases of domestic violence go unreported.
While efforts have been made in Canada to respond to the rising incidents of domestic violence, there is still substantial work to be done, especially in the area of family law where domestic violence permeates the determination of such issues as custody, access and support.
The Divorce Act (hereinafter the “Divorce Act“), which is the federal statute dealing with family law issues related to the breakdown of a marriage, makes no direct reference to domestic violence. However, it does require that the past conduct of a person be taken into consideration where it is relevant to that person’s ability to act as a parent of a child(ren) in determining incidents of custody and/or access. The general consensus is that domestic violence is conduct which is relevant to a person’s ability to parent a child(ren), and therefore ‘maximum contact’ with that person may not be in the best interests of the child(ren).
In February 2006, the Ontario Legislature implemented changes to section 24 of the Children’s Law Reform Act (hereinafter the “CLRA“), the section of the provincial statute dealing with parentage, custody, access, guardianship and children’s property that speaks to the merits of an application for custody or access, which made it mandatory for a court to take into consideration domestic violence in determining the best interests of the child(ren) in custody and access disputes, and specifically, the suitability of a person to parent a child(ren). Subsections 24(4) and (5) were added to the CLRA and require that
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
Prior to the implementation of these subsections, judges were somewhat divided in their approach to the relevance of domestic violence in determining custody and/or access to a child(ren). There were judges who believed that spousal abuse did not necessarily cross over to the child(ren) and therefore should not have a bearing on the determination of custody and/or access. However, the provincial legislature has drawn a clear nexus between spousal abuse and its short-term and long-term impact on children, and the implementation of these subsections has heightened awareness of the nexus.
The Impact of Domestic Violence on Custody
There is a presumption of joint custody under the Children’s Law Reform Act which stipulates that both parents are entitled to custody of a child(ren). Over the past decade, the courts appear more inclined to award joint custody whether under a co-operative parenting or parallel parenting regime, as opposed to the traditional, sole custodial parent and access parent arrangement, presumably in an effort to maintain the integrity of the parenting unit for the benefit of the child(ren) even after the family unit has broken down. Moreover, studies continue to tell us that child(ren) of divorced or separated families suffer emotional instability, anxiety, low self- esteem, depression, do poorly in school, are at a higher risk of developing addictions and tend to become perpetrators of violence themselves as a result of being placed in the middle of the conflict, alienated by a parent or being subjected to and/or witnessing abuse in the home. It should go without saying that, children whose parents are able to maintain a respectful and co-operative relationship with each other as parents, are those who fair better in the long run. For the court not to award joint custody, it must be clear that there was no history of, nor can there be any future co-operation between the parents where decisions affecting the child(ren) are concerned. Although one would think that domestic violence, in and of itself, is sufficient to deny a claim for either sole or joint custody by a parent who was the perpetrator of violence, this is not always the case.
The court will generally award sole custody to the parent who has been the victim of the abuse where it finds that the alleged abuse did in fact take place and that the parents cannot communicate or co-operate with each other in making joint decisions concerning the child(ren). Where a parent is awarded sole custody, he or she will have the exclusive right to make important decisions respecting the child(ren)’s health, education or general wellbeing and in these cases, the child(ren) will reside with that parent. An order for sole custody ensures that the victim of domestic violence is not placed in a situation which would leave him or her susceptible to continued abuse by the perpetrator of the violence, especially where he or she may use the child(ren) and communication with respect to the child(ren) as a medium for doing so.
The courts, irrespective of finding that domestic violence has occurred, will also look at what kind of violence occurred together with the frequency. For example, if there was one isolated incident of physical abuse after the parties separated and there was no prior history of any kind of abuse whatsoever, that occurrence may not have a strong bearing on the court’s determination of custody and/or access. If, however, the incidents of domestic violence occurred prior to separation, on a regular basis and the child(ren) was directly impacted by or witnessed it, the occurrence will have a significant bearing on the court’s determination of custody and/or access in favour of the victimized parent. Where the allegation of domestic violence is made against another parent, and cannot be substantiated by the evidence, the parent making the allegation may be accused of parental alienation, their credibility undermined, and in cases where parental alienation is found, lose custody of the child(ren).
The Impact of Domestic Violence on Visitation Rights
The courts are disinclined to sever the relationship between a child and his or her parent, even where that parent is the perpetrator of violence. The court must however balance the delicate task of preserving the relationship, if it is in the child(ren)’s best interests to do so, while at the same time ensuring the health and safety of the child(ren) while in that parent’s care. As such, the courts will often impose conditions on that parent’s access to the child(ren) which may include the following:
(a) that access be supervised for so long as is necessary to be satisfied that the parent is remorseful for the behaviour and unlikely to repeat it;
(b) that the parent has obtained anger management or spousal abuse counselling and is rehabilitated, or at least on the road to becoming rehabilitated;
(c) that the parent has attended and completed parenting courses to assist that parent in learning how to parent a child in a high conflict situation;
(d) where that parent has an alcohol or drug addiction, that the parent has attended and completed substance abuse counselling; and finally but most importantly,
(e) where the child’s health or safety would not be compromised by placing that child in the unsupervised care of that parent.
If supervised access is ordered, that access may be exercised by the parent and the child(ren) at a designated access centre. There are a fair number of supervised access centres across Ontario. These centres are often daycare centres which are converted to supervised access centres in the evenings or on weekends. The visits are supervised by qualified professionals and observation notes are taken at each visit. Supervised access must be court-ordered in order for an access centre to facilitate such access. The courts may also order that access be supervised by a third party, who may be a relative or a friend, as opposed to an access centre to expedite the parents’ access to the child(ren) where the court is satisfied that the child(ren)’s health and safety would not be compromised by such an arrangement.
In rare cases, the courts have terminated a parent’s access to the child(ren) altogether. These cases include cases where, for example,
(a) one parent has been abusive of the other parent for a prolonged period of time and/or continues to be abusive in the presence of the child, causing the child(ren) to fear him or her;
(b) one parent has been neglectful of or abusive towards the child(ren), whether physical, verbal or sexual, and there is either no admission of wrongdoing or indication that the parent has sought or obtained treatment and/or counselling;
(c) one parent has no control of his or her temper, is unable to manage his or her anger, and has a propensity for violence against the other parent or the child(ren); and
(d) the child(ren) is older and able to clearly state his or her wishes to the court, and it is his or her wish not to have continued access to the parent who perpetrated the violence. While the child(ren)’s wishes is only one of the factors taken into consideration by the courts in determining custody and/or access, it may carry significant weight depending on the nature and duration of the abuse, the age of the child(ren), the absence of any manipulation or control by either parent, and whether the child(ren) is communicating through independent legal counsel.
The Impact of Domestic Violence on Spousal Support Claims
While the objective of the family law pertaining to spousal support may not be to compensate a victim of spousal abuse for the damages that he or she suffered during the relationship, domestic violence is nonetheless taken into consideration in certain circumstances. Where an application has been made to the court for spousal support under s. 15.2 of the Divorce Act, the court is not permitted to take into consideration any misconduct of a spouse in relation to the marriage. However, the court is willing to take such conduct into consideration where it has affected the ability of a victim of domestic violence to become self-sufficient, especially as a result of suffering longstanding financial abuse and/or control. Section s. 33 of the Family Law Act (hereinafter “the FLA“) contains a similar restriction, but allows the court to take into consideration “a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship” in determining the appropriate amount of support to be ordered. This would presumably include not only financial abuse and/or control, but other forms of domestic violence as well.
Removing Religious Barriers
Where the victim of domestic violence is married to the perpetrator, obtaining a legal divorce from him or her is often an effective way of, not only severing the relationship and therefore the cycle of violence, but moving forward and making a new life. For some victims, a legal divorce is insufficient to move forward without the removal of the religious barriers to their remarriage. Where the perpetrator of violence has effective control of whether the victim can remarry in their faith, he or she may refuse to remove the barriers to their religious remarriage as a means to continue the religious/spiritual abuse and control of the victim. Under subsection 21.1(3) of the Divorce Act, a court may compel a spouse to remove religious barriers to remarriage by striking their application or striking out any pleadings or affidavits filed by that spouse under the Divorce Act. It is therefore imperative that a spouse seeking the removal of religious barriers to remarriage do so at the onset of the proceeding.
Protecting the Children
In some instances of domestic violence, child(ren) are abducted by the parent that is the perpetrator of violence and taken to a foreign country beyond the reach of the parent who has been victimized. The international treaty which Canada, including Ontario, has ratified and which deals with abductions is the Convention on the International Aspects of Child Abduction (hereinafter “the Hague Convention“). The Hague Convention is a schedule to s. 46 of the CLRA and empowers a family court to make an order where an application is made to it to enforce a right or obligation under the Hague Convention. Therefore, where a child(ren) has been taken from and to a country that is a signatory to the Hague Convention, family courts in Ontario are authorized to enforce the articles of the Hague Convention in securing the return of the child(ren) to Ontario.
There have been cases where the parent who is the victim of domestic violence has fled his or her country of origin with his or her child(ren) to escape the violence and to seek refuge in Canada. This is especially the case where the country of origin is one where domestic violence is neither acknowledged, prohibited or punished. Once in Canada, the victim may apply to a family court for an order that he or she has sole custody of the child(ren) and/or that the perpetrator of violence be denied access to the child(ren). In Ontario, a family court does not have the jurisdiction to make an order respecting the custody of or access to a child(ren) where that child(ren) is not habitually resident in Ontario at the time the application is made to the court. Fortunately, the CLRA contemplates the proposed scenario and does make an exception. Section 23 of the CLRA permits a court to assume jurisdiction and make or vary an order in respect of the custody of or access to a child(ren) where,
(a) the child is physically present in Ontario; and,
(b) the court is satisfied that the child would, on a balance of probabilities, suffer serious harm if,
(i) the child remains in the custody of the person legally entitled to custody of the child,
(ii) the child is returned to the person legally entitled to custody of the child, or
(iii) the child is removed from Ontario.
Where the perpetrator of violence is the parent who is seeking the return of the child(ren) to his or her custody, and the court finds that the child(ren) would suffer serious harm if returned to him or her, or if removed from Ontario, it may assume the jurisdiction to make or vary an order for custody of or access to the child(ren). The courts have accepted that any harm that has or would come to the victim of domestic violence, whether or not witnessed by the child(ren), would be considered serious harm to the child(ren).
With that being said, it is important to acknowledge that in cases of domestic violence, a child(ren) is often made a victim by their trusted parent(s) or any person in charge of their care. Where a child(ren) is made a victim of domestic violence and a child protection agency (or a peace officer) has reasonable grounds to believe that a child(ren) is in need of protection, that child(ren) may become the subject of a child protection application by a child protection agency to the court under s. 40(1) of the Child and Family Services Act (hereinafter “the CFSA“). Whether a child(ren) is in need of protection is proven on a simple balance of probabilities. Before a hearing of the application under s. 47(1) of the CFSA the child protection agency may obtain a warrant to apprehend the child(ren) and bring him or her to a place of safety or may do so without a warrant where there is a substantial risk to the child(ren)’s health or safety during the time necessary to bring the application on for a hearing. Under s. 57(1) of the CFSA a court may order that a child(ren) in need of protection be: placed in the care and custody of a parent or another person, subject to supervision by the child protection agency; made a ward of the child protection agency and placed in its care and custody; or made a ward of the Crown. In making any one of the said orders, the court’s paramount concern is the child(ren)’s best interests and therefore, if it is in the child(ren)’s best interest for the court to intervene to protect him or her, it will.
Compensation for Victims
The courts have compensated victims of spousal abuse with monetary awards where those victims have made a claim for damages in tort law. A claim for damages in tort law may be advanced within the context of a family law matter, provided that it is proceeding before the Ontario Superior Court of Justice. Victims of domestic violence have been successful at obtaining monetary compensation from the court for damages suffered during the course of the relationship, such as damages for assault, intentional infliction of mental suffering and emotional distress, and intimidation. In some cases, the victim may have a claim for damages against his or her in-laws, where they too were abusive. Family courts have awarded both aggravated and more rarely, punitive damages, to compensate victims of domestic violence. The monetary awards vary on a case-by-case basis and there is no general rule as to what amount, if any, is appropriate.
Reinforcing Our Intolerance of Domestic Violence
On May 14, 2009, the Family Statute Law Amendment Act, 2009 (hereinafter “the FSLAA“), which amended various acts in respect to family law matters and repealed the dormant Domestic Violence Protection Act, 2000, came into force. The FSLAA has made an extremely important change to s. 21 of the CLRA, which is the section under which a parent of a child(ren) or any person may apply to the court for custody of or access to a child(ren), or to determine any aspect of the incidents of custody of a child(ren). Subsection 21(2) of the CLRA now requires the applicant to provide a sworn affidavit to the court specifying, amongst other things, information respecting the applicant’s current or previous involvement in any child protection proceedings under the CFSA and any criminal court proceedings, as well as any information that is relevant to a determination of what is in the best interests of a child(ren) under s. 24(2), (3) and (4), the latter dealing specifically with domestic violence.
Prior to the coming into force of the FSLAA, both the FLA and the CLRA contained provisions which dealt with domestic violence and offered victims some level of protection and security. The FSLAA made significant changes to the provisions under the FLA and the CLRA, and specifically the process for obtaining restraining orders in the family court, the content of restraining orders and the penalties for violating such orders. The changes are aimed at rendering the provisions of the FLA and CLRA more effective.
Section 46 of the FLA and s. 35 of the CLRA now authorize a family court to make interim and/or final restraining orders against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child(ren) in his or her lawful custody. In addition, s 47.1 of the FLA now authorizes a family court to make an interim order prohibiting, in whole or in part, a party from directly or indirectly contacting or communicating with another party, if the court determines that the order is necessary to ensure that an application for support is dealt with justly.
The evidentiary burden for obtaining the relief set out under s. 46 of the FLA or s. 35 of the CLRA has been relaxed. A person applying for an order under the said provisions need only demonstrate to the court that he or she has reasonable grounds to fear for his or her safety. The standard of proof applied by the court is a balance of probabilities (meaning, more likely than not).
The Criminal Code has also been amended. It is now a criminal offence, and no longer a provincial offence, to breach a court order made by a family court. Section 127(1) of the Criminal Code now states:
(1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Therefore, any person breaching a family court order made under either s. 46 of the FLA or s. 35 of the CLRA will be prosecuted under s. 127 of the Criminal Code and may be imprisoned for up to 2 years if found guilty.
Integrated Domestic Violence Court – Another Step in the Right Direction?
In June of 2011, the Ontario Court of Justice launched the first integrated domestic violence court (hereinafter “IDVC”) in Canada. The IDVC is a two (2) year pilot project being funded by the Ontario government. The courthouse at 311 Jarvis Street has been chosen as the testing ground for this project. The project is aimed at reforming the justice system for families experiencing domestic violence by implementing a more comprehensive and holistic approach to the resolution of their family law issues; by making the court system easier to use; by making family and criminal court orders more consistent with each other; and by resolving matters in a more timely fashion. One of the issues that family courts faced in resolving family law matters involving domestic violence was the lack of transparency between the family and criminal law proceedings. For example, bail terms often conflicted with the terms of an access order and vice versa because litigants failed to disclose to the judge the terms of the existing order. The pilot project was spear-headed by Ontario Court Justices, the Honourable Mr. Justice Joseph Bovard and the Honourable Madam Justice Geraldine Waldman, both of whom have extensive experience dealing with family and criminal law matters involving domestic violence. While the IDVC is modelled after its American counterpart in Buffalo New York, with some cultural tuning, it seems to be the only sensible approach in responding to the needs of families experiencing domestic violence in Ontario.
The project’s approach is simple: one-family, one-judge. In other words, the judge in IDVC will preside over both the family and criminal law proceedings affecting the family. Originally, the participation of families in this pilot project was completely voluntary. You could choose to have the same judge deal with your family in both the family and criminal law proceedings that impact your family, or you could choose to take the conventional approach of having the proceedings segregated. There were certain eligibility requirements that needed to be met before proceeding in the IDVC; however, if eligible, the litigants would be notified of the decision to hear their matter in the IDVC as soon as possible. In March of 2012, the Ontario Court of Justice released a practice direction requiring that all
domestic violence summary conviction charges that are scheduled for appearance at Old City Hall, Toronto where the accused is not in custody and is a litigant in a related Children’s Law Reform Act or Family Law Act case at the Ontario Court of Justice family courts at 47 Sheppard Avenue, Toronto or 311 Jarvis Street, Toronto
be scheduled in the IDVC. Where there is an existing family law case being heard under the CLRA or FLA, the consent of the case management judge must be obtained prior to traversing the matter into the IDVC. Participation in the pilot project is therefore no longer voluntary. That being said, if your matter involves divorce, property or a child protection concern, it cannot proceed in the IDVC.
By the end of its run, judges, lawyers and litigants should be in a better position to assess whether the implementation of the IDVC has been successful or whether there is still work to be done in devising a model to properly respond to the needs of families experiencing domestic violence. That being said, it nonetheless represents a pivotal step in the continued effort to respond to the needs of families experiencing a breakdown and domestic violence.
Continued Progress with Family Court Support Workers
In conjunction with the IDVC, Ontario has launched the Family Court Support Worker Program (hereinafter “FCSWP”) which is aimed at providing assistance and support to the victims of domestic violence throughout the family court proceedings. The FCSWP is also aimed at ensuring the safety of victims, increasing their access to resources and support, and bolstering the competency of workers dealing with victims of domestic violence in the family courts. The workers will be trained by the Ministry of the Attorney General and will be required to address the specific needs of families experiencing domestic violence in the family courts. Their responsibilities include: referring victims to specialized services in the community; assisting victims in recording a history of abuse when preparing family court documents; communicating with criminal court based services such as the Victim/Witness Assistance Program on behalf of the victim; supporting the victim through meetings with duty counsel and lawyers; and discussing with victims the outcome of their court proceedings and how it impacts their family.
While the current legislation responds to the needs of victims of domestic violence in so far as those needs are related to their continued safety and the determination of the legal issues stemming from the breakdown of the family, there is still room for improvement. The implementation of the IDVC is a step in the right direction. It is a testament to the growing awareness and sensibility surrounding the needs of families experiencing domestic violence. However, the IDVC has its limitations and its overall effectiveness cannot yet be ascertained. Ultimately, steps need to be taken to change the way that we, as Canadians, think about domestic violence and its impact on the resolution of family law issues. The way that we think about domestic violence should be embedded firmly, not only in our social fabric, but in our legislative fabric as well. For example, domestic violence should be a mandatory consideration in custody and access applications under the Divorce Act, which applies to all provinces of Canada, because it would send a clear and unequivocal message to perpetrators of violence that their conduct could cost them their child(ren), and in doing so may be a deterrent.
Moreover, while legislative amendments have been made to require a person applying for custody of or access to a child(ren) to disclose any criminal convictions or incidents of domestic violence, where information is purposely withheld, there is insufficient transparency between the criminal justice system, child protection agencies and the family justice system (outside of the IDVC) to be able to confirm the veracity of the person’s disclosure without overcoming substantial procedural hurdles and significant delays. This is in large part owing to both the federal and provincial privacy legislation which prohibits the dissemination of such information without the consent of the affected person or a court order.
Lastly, notwithstanding the relaxed evidentiary burdens, it remains substantially difficult for victims of domestic violence to prove that they are in fact victims. This may be attributable to the common misconceptions about domestic violence and the lack of understanding around the impact of domestic violence on its victims. Although we may be falling short, significant efforts have been and continue to be made to change the public perception of domestic violence and to reform the judicial and legislative framework that impacts directly on families experiencing domestic violence.
Disclaimer: This article provides general information only and is not intended, nor is it to be relied upon as a substitute to obtaining legal advice.