Last week, a leaked video made headlines and resulted in ABC cancelling the airing of the new season of The Bachelorette. The video appeared to show an incident of family violence between two parents, reportedly occurring in the presence of one of the parties’ children.
The public response has centered on the franchise’s decision and the dispute between the individuals involved. In the family law context, the story raises two important legal questions: First, what is the relevance of family violence in parenting disputes? And second, are video or audio recordings admissible in Court?
In this first part, we explore the relevance of family violence in parenting disputes. Part 2 will look at the admissibility of audio or video recordings in Court.
What is “Family Violence”?
The definition of “family violence” is set out under the Divorce Act. The Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22, referred to the definition as a broad inclusion of “any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse”.
The definition adopted by the Supreme Court of Canada expands the previously narrow interpretation of violence and provides a modern understanding of family violence that includes conduct beyond physical acts. Nonetheless, family violence cases are inherently challenging. The courts have acknowledged that most family violence is unreported and may lack corroborating evidence.
The Supreme Court of Canada further acknowledged that family violence takes place behind closed doors. The absence of corroborated evidence or the presence of criminal charges does not eliminate the finding of family violence. A finding of family violence in the family law context is made on a balance of probabilities and often turns on the credibility of the parties and witnesses, and the supporting evidence.
Family Violence and Parenting Disputes
Family violence is relevant to parenting disputes, whether the violence was directed at the child or the other parent. In fact, Courts must consider family violence and its impact on the child.
Family violence is a significant factor in the best‑interests analysis because its presence or history may affect a child’s physical, emotional, and psychological well-being, as well as the child’s safety and overall stability. In Barendregt, the Supreme Court of Canada referenced research showing that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives.
In Ontario, parenting orders relating to decision-making responsibility, parenting time and contact, are determined solely based on the best interests of the child. The legislation sets out the factors that must be considered, including the child’s needs, the child’s relationship with each parent, the history of care for the child, any plans for the child’s care, and the parties’ ability and willingness to communicate, etc.
Among the mandatory considerations is any family violence. Section 16(2)(j) of the Divorce Act and section 24(3)(j) of the Children’s Law Reform Act require the Court to consider:
any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child
The legislation further outlines a detailed list of factors relating specifically to family violence, including its nature, seriousness, frequency, whether it forms part of a pattern of coercive and controlling behaviour, whether the child was exposed, the harm, and steps taken to address the behaviour.
How Does a Finding of Family Violence Impact the Outcome at Court?
The presence or history of family violence does not automatically prevent a parent from having decision‑making responsibility, parenting time, or contact with the child. Instead, courts tailor parenting orders by applying the statutory factors and assessing the degree of risk, patterns of behaviour, and the child’s needs.
If there is a finding of family violence, possible outcomes may include:
- supervised parenting time,
- transitions occurring at a supervised or neutral location,
- parallel parenting structures,
- limits on communication between the parents,
- sole decision‑making responsibility for the non‑violent parent, or
- restrictions or conditions placed on parenting time.
The ultimate goal remains the child’s safety and well-being, while ensuring that the parenting order is aligned with the child’s best interests.
What Can You Do?
Parenting disputes involving allegations of family violence are complex, challenging, and emotionally difficult. If you are navigating issues relating to decision‑making responsibility or parenting time, or have concerns about family violence, it is important to consult with a family law lawyer to obtain advice tailored to your specific circumstances.
Our family law team can assist with addressing parenting disputes, developing parenting plans, connecting you with appropriate community resources, and taking the necessary steps to address concerns relating to family violence.
If you, a child, or anyone you know is in immediate danger, contact police immediately.
