Diversity of family violence
How a broader definition when deciding the best interests of a child is changing divorce law.
Family violence encompasses much more than physical attacks and family lawyers must make courts aware when making parenting arrangements, experts say.
In March 2021, the federal Divorce Act was amended, in part to include a list of factors that courts must consider when deciding the best interests of a child. One such factor is the impact of family violence.
“There used to be a perspective that family violence was just physical violence,” says Erin L. Brook, a family lawyer based in Nanaimo, B.C. “But the Divorce Act is much more comprehensive and includes things like threats, stalking and coercive control.”
Now the courts must consider the impact of family violence when making parenting arrangements. The same goes for family law practitioners when representing their clients.
“This expanded definition really drew awareness to the fact that fear for your own safety, fear for family members’ safety [...] are all relevant to parenting,” says Brook.
In the past, many courts did not consider family violence relevant to parenting arrangements, Vanessa Lam, a strategic advisor and research lawyer with Lam Family Law. They considered it simply an issue between the parents that did not impact their ability to care for their children.
“Now with changes to the legislation and how this has been interpreted by the courts, you can’t ignore family violence anymore and you can’t say it doesn’t impact on the child and say it has no harm to the child,” says Lam.
Shelley Hounsell-Gray, KC, a family lawyer with Blackburn Law in Bedford, N.S., says that the amendments have changed how many lawyers practice by modernizing their understanding of family violence.
“This has led to a fundamental shift in the way that family lawyers are approaching their clients and we are having more discussions between lawyers: ‘My client has disclosed this type of violence, you need to be conscious of this,’” she says.
Family lawyers must take the time to identify family violence with all of their clients, says Brook.
“It’s all well and good for legislation to define family violence, but if the practitioners don’t know what it looks like and can’t identify it and don't know what to do with it and don’t know what to do when they do see it, it doesn’t matter what legislation is,” she says.
Lam says that lawyers also need to consider the nature of the family violence that their clients have experienced.
“Is it just a one-time separation-instigated incident? Or is it a power imbalance that has been going on for years and really impacts the parties’ ability to communicate and impacts decision-making abilities?” she says.
Lawyers representing the perpetrator of family violence also need to consider their client’s actions, says Lam.
“Has the person who engaged in family violence taken steps to prevent this from happening? Are they taking counseling or anger management courses to improve their ability to care for the child?” she says.
Lam adds that lawyers must make the courts aware of family violence issues.
“These are our duties as family lawyers. We have to consider family violence, and we have to put this evidence forward,” she says.
It isn’t easy screening or dealing with non-physical forms of family violence, says Hounsell-Gray.
“Clients are generally comfortable sharing about physical violence where there are criminal charges or physical signs of abuse,” she says. “They’re not so good at sharing sexual abuse, and they’re not so good at sharing harassment kind of abuse.”
Hounsell-Gray says that coercive and controlling family violence can be more challenging to identify than physical or sexual assault.
“Coercion and control is something that family lawyers have seen over the course of our careers, but for a long time, we didn’t have a name for it,” she says. “It’s the insidious type of abuse where mom is not allowed to associate with her family or friends, or dad is required to spend all his money on mom and the children, and he’s not allowed to have any money in his pockets for himself; or he’s accused of cheating. It’s that controlling of behaviour so they have no autonomy in the relationship.”
Family lawyers need to be aware that coercion and control impact clients’ decisions when negotiating a resolution, says Hounsell-Gray. “We need to consider whether they are making a decision as a result of fear or because that is the decision they really want to make.”
Hounsell-Gray recommends that lawyers educate themselves about what coercion and control look like so they can recognize this in their clients.
“Now lawyers are required to make inquiries about the interactions between their client and their spouse and drill down about whether coercion and control is experienced,” she says. “We have a long way to go but the more aware we become of the behaviours between spouses, I hope we will be more proactive in creating better parenting plans and safer arrangements for children.”
Brook says that she expects that in the future, the expanded definition of family violence will continue to result in changes in the way courts deal with families.
“I think we will see an increased awareness in the diversity of family violence and that some of these now codified and more nuanced aspects of family violence will be more readily recognized and appreciated in decision making by judges, arbitrators and practitioners,” she says. “It is much easier for a judge who is hearing evidence about coercive control to factor that into a decision, when appropriate, if it is also codified.”
Resources for lawyers to learn more about family violence