Heavily. When a court makes a parenting order, it must give primary consideration to the child's physical, emotional and psychological safety, security and well-being, and any family violence is one of the factors it must weigh. Family violence is defined broadly: it is not limited to physical harm or to crimes, and it includes coercive and controlling behaviour, threats and financial abuse, as well as a child's direct or indirect exposure to that conduct.
The same test applies under the federal Divorce Act (for married parents who are divorcing) and Ontario's Children's Law Reform Act (for everyone else). This page explains the test in family court; for how decision-making and parenting time are allocated in general, see parenting decision-making in Ontario. Schedules are covered in our page on parenting time.
How is family violence raised in a parenting case, step by step?
| Step | What happens | Law |
|---|---|---|
| 1. Safety first | In immediate danger, call 911; the family case comes after your safety | n/a |
| 2. The application and affidavit | A parent applying for a parenting order files an affidavit with a plan for the child and any current or past family or criminal proceedings | CLRA, s. 21(4) |
| 3. Urgent motion if needed | Where there is urgency or hardship, a motion can be heard before the first conference | Family Law Rules, r. 14(4.2) |
| 4. The court checks other proceedings | In a divorce, the court must consider any civil protection order, child protection matter or criminal order or proceeding | Divorce Act, s. 7.8(2) |
| 5. Evidence and the factors | The judge weighs the family violence factors as part of the child's best interests | Divorce Act, s. 16(3) and (4); CLRA, s. 24(3) and (4) |
| 6. Safety terms in the order | Supervision, exchange arrangements, communication limits, travel and passport terms | Divorce Act, s. 16.1; CLRA, s. 28 |
This page deals with the family court test only. A criminal charge, bail conditions or a peace bond are separate proceedings, but the family court must take them into account where they are relevant to the child's safety (CLRA, s. 24(3)(k)).
What counts as family violence?
Both statutes define it as conduct by a family member towards another family member that is violent or threatening, that is a pattern of coercive and controlling behaviour, or that causes the other person to fear for their own safety or someone else's. For a child, it includes direct or indirect exposure to that conduct. The conduct does not have to be a criminal offence.
| Kind of conduct | Listed examples |
|---|---|
| Physical | Physical abuse, including forced confinement (but not reasonable force used to protect oneself or another person) |
| Sexual | Sexual abuse |
| Threats | Threats to kill or cause bodily harm to anyone; threats to kill or harm an animal or damage property |
| Harassment | Harassment, including stalking |
| Neglect | Failing to provide the necessaries of life |
| Psychological and financial | Psychological abuse; financial abuse |
| Animals and property | Killing or harming an animal, or damaging property |
Because financial abuse and coercive control are named in the law, conduct such as controlling all of the family's money, holding on to a spouse's identity documents, or cutting off a spouse who is new to Canada from family and community can be put before the court. Whether it amounts to family violence, and how much it matters, depends on the evidence in each case.
How does a judge weigh it?
Section 16(4) of the Divorce Act and section 24(4) of the Children's Law Reform Act tell the court what to take into account when it considers the impact of family violence:
- the nature, seriousness and frequency of the violence, and when it happened;
- whether there is a pattern of coercive and controlling behaviour towards a family member;
- whether the violence was directed at the child, or the child was directly or indirectly exposed to it;
- the physical, emotional and psychological harm, or risk of harm, to the child;
- any compromise to the safety of the child or another family member;
- whether it causes the child or another family member to fear for their own safety or someone else's;
- any steps the person who engaged in the violence has taken to prevent more of it and to improve their ability to care for the child; and
- any other relevant factor.
The court looks at the impact on two things in particular: the ability and willingness of the person who engaged in the violence to care for and meet the child's needs, and whether it is appropriate to make an order that requires the parents to cooperate on issues affecting the child. That second point can decide whether parents are able to share decision-making at all. The court must also consider any civil or criminal proceeding, order, condition or measure relevant to the child's safety, such as a no-contact condition.
Does it override the principle of time with both parents?
The law says a child should have as much time with each parent as is consistent with the child's best interests. Family violence is one of the things that decides what is consistent with those best interests, and the safety of the child is the primary consideration. Past conduct counts only where it is relevant to how a person would exercise parenting time, decision-making responsibility or contact, while family violence is itself on the list of factors the court must consider (Divorce Act, section 16(3)(j); Children's Law Reform Act, section 24(3)(j)).
What orders can a court make where there has been family violence?
| Term | Law |
|---|---|
| Supervised parenting time or supervised exchanges | Divorce Act s. 16.1(8) |
| Limits on the duration, frequency, manner or location of contact or communication | CLRA s. 28(1)(c)(i) |
| Prohibiting specified conduct in the child's presence or while caring for the child | CLRA s. 28(1)(c)(ii) |
| Decision-making allocated to one parent, or split by area | CLRA s. 28(4); Divorce Act s. 16.3 |
| No removal of the child from Ontario; passports delivered to the court | CLRA s. 28(1)(c)(iv), (v) |
Ontario funds supervised access centres across the province, where parenting visits and exchanges take place under the supervision of trained staff and volunteers, on site or virtually; our page on supervised parenting time in Toronto lists the local centres. If there is also a risk that a child will be taken out of the country, see what an Ontario court can order about travel and passports.
Does family violence change the court process?
In several ways. Before a conference, parties normally have to confer with each other about disclosure and temporary arrangements, but that duty does not apply if a court order prohibits communication, or if there is a risk of domestic violence by a party who has no lawyer (Family Law Rules, rule 17(3.2)). Urgent motions can be heard before a case conference where there is urgency or hardship (rule 14(4.2)). The steps of a case are set out in what happens after you start a family case in Toronto.
Relocation notice also bends. A parent who plans a move that will significantly affect the child's relationship with the other parent normally gives 60 days' written notice with the new address. A court can waive or change that requirement, without notice to the other party, where it is appropriate, including where there is a risk of family violence (Children's Law Reform Act, section 39.3(3) and (4); Divorce Act, section 16.9(3) and (4)).
What evidence helps?
Judges decide on evidence. Useful material often includes dated messages and emails, photographs, medical or counselling records, police reports and any conditions of release, school or daycare observations, and a careful timeline written soon after events. Keep it safe and private. If you are in immediate danger, call 911 first; the family court case comes after your safety.
What changes the answer?
- The nature, seriousness, frequency and timing of the conduct (Divorce Act, s. 16(4)(a); CLRA, s. 24(4)(a)).
- Whether there is a pattern of coercive and controlling behaviour, which can matter even without physical violence (s. 16(4)(b); s. 24(4)(b)).
- Whether the child was exposed directly or indirectly (s. 16(4)(c); s. 24(4)(c)).
- Steps taken since by the person who engaged in the violence, such as counselling (s. 16(4)(g); s. 24(4)(g)).
- Other orders and proceedings, such as no-contact conditions, which the court must consider.
- Whether the parents can cooperate safely, which decides whether shared decision-making is realistic.
A worked example
For example, imagine a mother in Thornhill who came to Canada after her marriage. During the marriage her husband kept her passport and her bank card, decided who she could see, and shouted at her in front of their son. After she leaves with the child, he applies for equal decision-making responsibility. In her affidavit she describes the pattern with dates, and attaches messages and a note from the child's school about the boy's distress. The court can consider whether the control of her documents and money was coercive control and financial abuse, weigh the son's indirect exposure, and asks whether the parents can cooperate on decisions at all. It could order that the mother make the major decisions and that exchanges happen at a supervised access centre. Our guide to how York Region family cases work covers the Newmarket court that would hear it. This is a hypothetical walk-through, not a prediction of any result.
What mistakes do people make?
- Assuming only physical violence counts. Coercive control, threats and financial abuse are named in the law.
- Waiting to collect evidence until the case is under way.
- Leaving out a criminal case or no-contact condition from the affidavit; the court must know about it.
- Using the children to pass messages when contact is limited.
- Agreeing to unsupervised exchanges to keep the peace when there is a real risk.
- Moving without considering the relocation rules, when the notice could have been waived or changed by the court.
What to do this week
- Make a safety plan, and call 911 in an emergency.
- Start a dated timeline of incidents, with who saw them.
- Save messages, photos and records somewhere the other parent cannot reach.
- Collect any police, court or release documents.
- Speak to a lawyer about interim parenting terms and whether an urgent motion is needed.
Frequently asked questions
Does family violence have to be reported to police to count?
No. The conduct does not need to be a criminal offence (CLRA, s. 18(2); Divorce Act, s. 2(1)). The court decides on the evidence it has.
Can a parent who was violent still have parenting time?
It depends on the child's best interests, with safety as the primary consideration. Terms such as supervision can allow time while managing the risk.
Who can supervise visits?
A family member, another agreed person or a supervised access centre, as the order sets out. See our page on supervised parenting time linked above.
Will my child be asked what they want?
The child's views and preferences are a factor, given due weight for age and maturity. A judge may ask the Office of the Children's Lawyer to become involved; see what the Office of the Children's Lawyer does.
Can I get help in Persian?
Consultations at Sarbazevatan Law are available in Persian (Farsi), English and French. Families with ties to Iran can also read what a Persian-speaking family lawyer in Toronto can do.
Does a criminal charge decide the family case?
No. The family court applies its own best-interests test, but it must consider any criminal proceeding, order or condition relevant to the child's safety.
Sarbazevatan Law acts for parents in parenting cases where family violence is an issue, in English, Persian (Farsi) and French, and a consultation is treated in confidence. Call +1 (416) 628-2041 or reach us through the contact page.