How Family Violence Affects Parenting Decisions in Ontario

If you have experienced abuse, you may worry about how that history affects decisions about your children. You may also worry about safety during exchanges and visits.

This article explains how Ontario courts weigh family violence, what safety terms exist and what urgent options may be available. Your situation is specific, so a lawyer can confirm what applies.

What counts as family violence

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.

The same definition appears in the Divorce Act and in the Children's Law Reform Act. Which statute applies to you depends on whether you are married and divorcing, so it is worth confirming with a lawyer.

How the court weighs family violence

In parenting cases, 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. The list is not exhaustive, and the court always gives priority to the child's safety.

When the court assesses family violence, it considers several matters. These include the nature, seriousness and frequency of the violence, any pattern of coercive and controlling behaviour, and whether the child was the target of the violence or was exposed to it. The court also looks at harm or risk of harm to the child, fear for safety, and 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.

Safety terms a court may consider

A court may 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.

• Supervised parenting time can be arranged where there are safety concerns, and the supervisor can be an agreed person, a paid professional, or staff at a Supervised Access Centre.
• A parenting order can include conditions, such as stopping a party from removing the child from Ontario without consent or a court order.
• The court may appoint a qualified professional to assess the child's needs and each party's ability to meet them.

If a relocation is planned and there is a risk of family violence, a court may, on application, waive or modify the relocation notice requirements.

Urgent situations

No motion may normally be heard before a case conference on the substantive issues, but the court can make an exception where it finds a situation of urgency or hardship. A motion may also be made without notice in some cases, including where there is an immediate danger to the health or safety of a child or the party. In those cases, the delay of serving notice must also probably have serious consequences.

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. Whether a situation counts as urgent can also depend on the practice direction for your court location, so a lawyer can confirm.

What to do next

• If anyone is in immediate danger, call the police.
• Write down incidents as they happen, including dates and what was said or done.
• Keep copies of any restraining orders, police reports and earlier court documents.
• Think about what safety terms, such as supervised exchanges, would help your family.
• Speak with a lawyer about which statute applies to you and which steps fit your situation.

Every family's circumstances differ. How the law applies to you depends on your facts, so it is worth confirming with a lawyer.

Frequently asked questions