Family Violence and Parenting Decisions Under the Divorce Act in Ontario

When a marriage or relationship ends and there has been family violence, parents often face an agonizing question: will the court give the person who caused harm access to the children? And how does the history of violence factor into decisions about who makes choices for the children's lives?

The Divorce Act — Canada's federal legislation governing divorce and related parenting orders for married spouses — was significantly amended to make family violence a primary consideration in every parenting decision. Ontario courts applying the Divorce Act must now explicitly weigh family violence as part of the best-interests-of-the-child analysis. This article explains what that means in practice.

If you or your children are in immediate danger, call 911.

What the Divorce Act Says About Family Violence

The amended Divorce Act requires a court to consider any family violence and its impact on the child and on the safety of any party when determining what arrangement is in the child's best interests. The court must look at specific factors, including:

• The nature, seriousness, and frequency of the family violence.
• Whether there is a pattern of coercive or controlling behaviour — not just physical acts, but psychological, financial, and other forms of control.
• Whether the violence was directed at the child or whether the child witnessed violence directed at someone else.
• Any physical or psychological harm the child has experienced or is at risk of.
• Whether the person who engaged in the violence has acknowledged responsibility and changed their behaviour.
• Whether protective orders are in place, and whether those orders have been complied with.
• What safety measures would allow for parenting arrangements that protect the child and the other parent.

This list is not exhaustive — courts look at the totality of the circumstances. But the legislature made family violence a named factor precisely to ensure it is never minimized or overlooked in the name of "maintaining the parent-child relationship."

Key Ontario Terms: Decision-Making Responsibility and Parenting Time

The Divorce Act uses specific language:

• Decision-making responsibility — the authority to make significant decisions about a child's life, including health, education, cultural and religious upbringing. This was previously called "custody."
• Parenting time — the time a child spends with each parent. What used to be called "access."

The court can allocate these in any combination it considers to be in the child's best interests. In a family violence context, this matters enormously:

• A survivor-parent may seek sole decision-making responsibility so that they do not have to negotiate with or remain in contact with the person who harmed them.
• The court may grant supervised parenting time — requiring a third party to be present during any time the child spends with the other parent.
• The court may impose exchange conditions — such as pick-up and drop-off at a neutral police-station location or through a family access centre.
• In the most serious cases, the court may limit parenting time to none at all, at least temporarily.

What Is "Family Violence" Under the Act?

The Divorce Act defines family violence broadly. It includes conduct by a family member toward another family member that:

• Is violent or threatening.
• Constitutes a pattern of coercive or controlling behaviour.
• Causes the other person to fear for their safety or the safety of another person.

Specific examples in the legislation include physical abuse, sexual abuse, psychological or emotional abuse (including harassment and intimidation), financial abuse, threats to harm or kill, and killing or threatening to kill pets or property.

This broad definition matters. A case does not need to involve bruises or police calls to engage the family violence provisions. A history of controlling behaviour, isolation, verbal degradation, or financial abuse can all qualify.

How to Present Family Violence Evidence in Court

If you are a survivor seeking parenting orders, your lawyer will help you present the violence in a way the court can act on. Useful evidence includes:

• Your own sworn affidavit describing the conduct — specific incidents, dates, what was said or done.
• Medical records documenting injuries or treatment for anxiety, depression, or trauma.
• Texts, emails, or voicemails containing threats or controlling language.
• Photographs of injuries or property damage.
• Police reports or occurrence numbers from any times police were called.
• Children's records — notes from teachers, school counsellors, or pediatricians about behavioural changes.
• Third-party statements — from witnesses, shelters, or support workers.

You do not need a criminal conviction to rely on evidence of family violence in family court. The standard of proof is the civil standard: more likely than not.

Does Family Violence Mean the Other Parent Gets No Parenting Time?

Not automatically. Courts still start from the principle that maintaining a meaningful relationship with both parents is generally in a child's best interests — unless safety requires otherwise. The court balances the benefit of a child having a relationship with both parents against the harm that relationship may cause if it exposes the child to ongoing risk.

The Divorce Act makes clear that a court may not order parenting arrangements that expose a person to violence or to a person who has engaged in family violence. Safety is not sacrificed for the principle of joint involvement.

Frequently asked questions