PREAMBLE
This case dealt with a multitude of issues which will not be addressed in this blog. The focus of this blog will be to discuss a major change to the Divorce Act, being the expansion of the definition of family violence.

BACKGROUND
The parties were married in 2010 and separated either in 2017, according to the wife, or 2018 per the husband. They share one daughter. The parties had settled on the majority of issues in this case but needed the court to assist in determining parenting arrangements. The parents were both very loving and each enjoy a strong bond with the child. In reference to determining a parenting order, the mother relied heavily on her concerns regarding the father’s anger management and emotionally abusive nature, which she claimed fell within section 2(1) of the Divorce Act. The mother stated numerous incidents in detail where the father became frustrated and escalated based on his anger issues. The father demonstrated that he had taken active steps to learn how to regulate his emotions and temper since the parties separation and that he had resolved his anger management issues. The mother also presented evidence of the father’s infidelity and his behaviour toward her relating to same. The Judge allowed the admissibility of this evidence over the objections of the husband.

ANALYSIS
With reference to determining a parenting order for this matter, the judge cited to the expansion of the definition of family violence under the Divorce Act. Under the Divorce Act, a judge must look at the best interests of the child in their determination of a parenting or contact order. Section 16(3)(j) specifically outlines that family violence is an important consideration in determining best interests of the child. Section 16(4) lays out the factors which the court must consider in determining the impact of the family violence under (3)(j), some of these factors include: (a) the nature, seriousness and frequency of the family violence and when it occurred and (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member. Although past conduct is not to be taken into consideration when determining best interest of the child, the court can review past conduct when it is relevant to parenting time and decision-making responsibility. In making her determination, the judge decided that the husband’s numerous infidelities during the relationship and conduct towards the mother with reference to same constituted family violence under the Act. Though she noted that infidelity is not necessarily relevant to the determination of parenting issues in every case, “a pattern of repeated infidelity coupled with lying, coercion, emotional manipulation and harassment around the infidelities” will be relevant and was here. Despite this finding, the judge noted that the father’s conduct toward the child did not constitute inappropriate behaviour and further the claims of any aggression toward the child were not substantiated. The judge ordered that the mother and father were to share equal parenting time with their daughter and ordered a hybrid model of decision-making responsibility, which gave specified responsibility to each parent so that conflict in making future decisions would be limited.

NOTE

Although the father was able to demonstrate to the court that he had overcome his past discretions and effectively changed his ways, this case sets a very interesting precedent by opening the door to various behaviours that can be deemed family violence under the Divorce Act.

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