Domestic Violence and Family Law Disputes.

AuthorBoyd, John-Paul

Domestic violence--or family violence or intimate partner violence, call it what you will--is a serious problem in both intact and separated families. According to a 2013 report from Statistics Canada, there are 252.9 victims of domestic violence per 100,000 population, and domestic violence makes up more 26 per cent of all violent crime in Canada. Although children who are victims of domestic violence make up 243.5 people per 100,000 of the under-18 population, spousal violence is the most common form of domestic violence, and 68 per cent of all victims of domestic violence identify as female.

Domestic violence can be an issue in child welfare proceedings, as the abuse of a spouse is significantly predictive of child abuse and domestic violence has important direct and indirect impacts on children even if they are not abused themselves. It can also be a factor in family law proceedings in a number of ways, including:

* the need to protect a family member from violence;

* the impact of violence on children's optimal parenting arrangements; and,

* the various claims in tort that can potentially be brought against abusers.

Domestic violence was first accepted as a consideration in judicial parenting decisions in the late 1980s, however by the end of the 20th Century, the domestic relations legislation of only one Canadian jurisdiction, Newfoundland, explicitly identified domestic violence as a factor to be taken into account in the court's assessment of parenting capacity. However, as time as passed the legislation of more provinces have been amended to include references to family violence, either in terms of the protection of victims or the assessment of children's best interests.

Section 18 of Alberta's 2003 Family Law Act, for example, required the court to consider "any family violence, including its impact on the safety of the child and other family and household members, the child's general well-being, the ability of the person engaged in the family violence to care for an meet the needs of the child, and the appropriateness of making an order that would require the guardians to cooperate on issues affecting the child." Section 37 of British Columbia's Family Law Act, passed eight years after the Alberta legislation, went a bit further. The parties and the court are required to consider

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or...

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