Family Violence and Parenting Orders in Ontario

If you have experienced abuse from the other parent, you may be worried about what a parenting order means for your safety and your child's. Many parents fear that being in the same process, or sharing decisions, will keep them exposed to harm.

This article explains in general terms how Ontario law treats family violence when it comes to decision-making, parenting time and safety terms. If you are in immediate danger, contact the police. A lawyer can explain how the rules apply to you.

What counts as family violence

Under the Divorce Act and the Children's Law Reform Act (CLRA), family violence means conduct by one family member towards another that is violent or threatening, forms a pattern of coercive and controlling behaviour, or causes fear for safety. The conduct need not be a criminal offence.

This is broader than physical assault. It can include controlling behaviour that does not leave a mark. The Divorce Act applies to married spouses in a divorce; the CLRA applies to unmarried parents and to married parents who are not divorcing, with parallel sections.

How violence affects the court's decision

The court's primary consideration is the child's physical, emotional and psychological safety, security and well-being. Family violence is one of the listed best-interests factors. When assessing it, the court considers several things:

• The nature, seriousness and frequency of the violence.
• Any pattern of coercive and controlling behaviour.
• Whether the child was the target of the violence or was exposed to it.
• Harm or risk of harm to the child, and fear for safety.
• Any steps the violent person has taken to prevent further violence.

The court also has a duty to check whether restraining orders, child protection matters or criminal matters involving a party are pending or in effect, and it may make inquiries of the parties. Tell your lawyer and the court about any of these.

Decision-making and parenting time

Decision-making responsibility covers significant decisions about health, education, culture, language, religion and spirituality, and significant extra-curricular activities. A court may give it to one parent, to both, or divide it, so sole, joint and divided orders are all possible. Which one is made depends on the facts, including family violence and each parent's ability to communicate and cooperate.

The general principle is that a child should have as much time with each parent as is consistent with their best interests, but this is subject to the child's safety. Day-to-day decisions during parenting time belong to the parent with the time, unless the court orders otherwise. A parent with parenting time or decision-making responsibility can ask for and receive information about the child's well-being unless the court orders otherwise.

Safety terms a parenting order can include

A court can direct supervision of parenting time or contact, but the supervisor must first consent. Justice Canada lists supervised exchanges, supervised parenting time and non-removal orders as options. Supervision can be done by an agreed person, a paid professional, or staff at a Supervised Access Centre.

If you plan to move because of violence, special rules may apply. A court may, on application, waive or modify relocation notice requirements, including where there is a risk of family violence. Do not assume you can skip notice; get advice first.

Urgent steps and what to do next

Ontario's guidance says to call the police right away if you think your child is in danger or at risk of being taken out of the country. Normally no motion may be heard before a case conference, but the court can make an exception where there is urgency or hardship. A motion may be made without notice in limited cases, including an immediate danger to the health or safety of a child or the party.

Taking a child can be a crime. Criminal Code s. 283 covers a parent who takes or conceals a child under 14 to deprive the other parent of possession, whether or not an order exists. There is an exception where the taking was necessary to protect the child from imminent harm, or the person was escaping imminent harm. Because this is a serious area, get legal advice before acting.

• Keep records: dates, messages, photos, medical or police reports.
• Tell your lawyer about any restraining orders or criminal or child protection matters.
• Think about what safety terms you need for exchanges and visits.
• Prepare your proposed plan for the child's care; an application needs this in an affidavit.
• Ask a lawyer whether an urgent motion is appropriate.

Frequently asked questions