5.0 Emerging best practices: Parenting arrangements in family violence cases

In this section, we identify a range of possible parenting arrangements and the considerations that should be taken into account when determining which parenting arrangement is most appropriate for cases where there are family violence issues. We begin by reviewing the 2021 amendments to the Divorce Act that are most relevant to family violence and some of the case law interpreting these new provisions. These reforms provide an important context and helpful directions for responding to these challenging cases. We then discuss some of the most critical factors in determining the most appropriate arrangement: the type of violence; timing of disclosure and stage of separation; and access to resources.

5.1 Family violence and the 2021 Divorce Act reforms

5.1.1 The significance of the reforms

Jurisprudence under the 1985 Divorce Act generally recognized family violence issues and restricted or suspended contact with parents with a proven history of serious IPV or child abuse, but the absence of specific reference to family violence in the legislation led some judges and family justice professionals as well as parents to fail to recognize the importance of family violence for parenting decisions. The reforms to the Divorce Act include a number of specific provisions emphasizing the salience of family violence for parenting decisions, adding to the statutory recognition of the significance of family violence (Bala, 2020; Justice Canada, 2019). The significance of these reforms was clearly recognized in the 2022 Supreme Court of Canada decision in Barendregt v. Grebliunas, where the amendments were characterized as a response “to issues identified in the case law over the past few decades,” including widespread recognition “that findings of family violence are a critical consideration in the best interests analysis” (paras. 146 & 150).

The reforms provide a broad definition of “family violence” in s.2 of the Divorce Act stating that it:

means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct…

The definition goes on to provide examples, including physical or sexual abuse; threats, harassment, or psychological abuse; and threats to kill animals or damage property. Notably the definition is broader than criminal offences involving family violence and includes a “pattern of coercive and controlling behaviour.”

Under s.7.8 of the Divorce Act, a court making a parenting order must consider any available information about other child protection, criminal or civil protection proceedings or orders involving the parties. Section 16(3)(j)(i) of the Divorce Act requires the courts to consider the impact of family violence on (among other things) the ability of a parent to meet the needs of a child and the appropriateness of making an order that would require parents to cooperate on issues affecting the child. This is reinforced by s. 16(2) which provides that the “primary consideration” in parenting cases is the “child’s physical, emotional and psychological safety, security and well-being.”

While the 2021 reforms clearly require courts to consider family violence, s.16(4) provides that courts consider its nature and recency, the impact on the child and how to promote safety moving forward. If family violence has continued or escalated since separation, the courts are very unlikely to order co-parenting, although there may be a provision for supervised parenting time by a parent with history of abuse. Evidence of post-separation stalking, financial abuse, or abusive communication will be very relevant. It is also important for courts to recognize that the psychological effects of family violence on the victim may continue after separation. A victim of family violence may be unable to effectively co-parent due to a prior history of having been dominated or traumatized by the perpetrator, or due to a fear of future violence.

In Barendregt v. Grebliunas (2022) the Supreme Court of Canada upheld the decision of the trial judge to allow a mother to relocate with her children some 10 hours’ drive from the father, in significant measure because she had been a victim of his abuse and violence. Justice Karakatsanis held that “because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases” (at para. 147). The Court accepted that being a perpetrator of domestic violence is relevant to “parenting ability” and recognized that harm to children “can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it” (at para. 143). While Barendregt was a relocation case, the approach of the Court is clearly relevant to all parenting cases, with Karakatsanis J. observing that the amendments to the Divorce Act recognize that “findings of family violence are a critical consideration in the best interests analysis.” She also observed that:

[d]omestic violence allegations are notoriously difficult to prove [as] family violence often takes place behind closed doors and may lack corroborating evidence…Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support. (at para. 144)

Barendregt clearly recognizes the importance of a “finding” of family violence, though it is necessary to keep the factual context of the decision in mind. The Court observed that this was not just a case of post-separation “friction,” but one “featuring abusive conduct during the marriage, at separation, and at trial” (at para 141). Despite the father’s denials, the trial judge found that he was abusive, and concluded that one of his assaults on the mother resulted in her calling the police, seeking medical attention, obtaining protection from her parents and immediately moving with the children to live with her parents, some 10 hours’ drive from the family’s home. Further, the trial judge emphasized that the abusive conduct continued after separation and into the trial itself, including “most notably” the father including “a nude ‘selfie’ of the mother” in an affidavit, which the trial judge found served “no purpose but to humiliate her” (at para. 179). Consistent with s.16(4) of the amended Divorce Act, the trial and Supreme Court decisions in Barendregt require that judges take a broad approach to the consideration of family violence in parenting cases.

An example of the approach to family violence required by s.16(4) was provided in McBennett v Danis (2021 ONSC 3610), where Justice Chappel found that it was in the best interests of the child for both parents to have an equal role with respect to parental decision-making and equal parenting time, despite her finding that the father had been emotionally abusive to the mother during their relationship. Justice Chappel found that there were no issues at the time of trial that could impact the father’s quality of care to his daughter. Importantly, she recognized the “monumental” changes in the father’s behaviour since separation, including his acknowledgement of his prior inadequacies, and undertaking of a mental health evaluation and enrolment in programs to improve his parenting and communication with the mother.

5.1.2 Coercive controlling behaviour as family violence

The courts are recognizing that coercive controlling behaviour may exacerbate physical abuse, or, consistent with the legislative amendments, may be a concern even in the absence of physical violence. The family violence provisions in Ontario’s Children’s Law Reform Act, mirror those in the Divorce Act so it is interesting to explore some of these decisions as well.

In M.H.S. v. M.R. (2021 ONCJ 665), the mother of two young children was seeking temporary parenting care and decision-making, with only supervised visits for the father. The mother was born in Iran and immigrated to Canada with her family when she was nine years old. The parties had an arranged marriage, and the mother then sponsored the father’s immigration to Canada. The father arrived in Canada in 2015, and the parties began to live together, with the couple’s first and second pregnancies occurring shortly thereafter. The parties separated, and the children resided with the mother after the separation, with the father having limited involvement and only daytime visits. Two years after their separation, the mother had a mental health breakdown and was hospitalized for two months, during which time the children were cared for by the maternal grandmother. When the mother was released, the children again resided with her. The grandmother continued to provide parenting assistance, and the father still only had daytime visits. Almost two months after the mother’s release from the hospital, the father did not return the children to the mother after a visit and refused to allow the mother to see them in person. He then began an application without notice to the mother for temporary custody, claiming that her mental health situation required urgent court action. The mother sought custody, with only limited contact with the father. Both motions came before Justice Sherr about two months after the father’s unilateral action, with affidavits of each parent alleging abuse by the other. Justice Sherr began with the mother’s onus of proof for trying to limit the father’s time to supervised daytime visits:

The party who seeks to reduce normal parenting time will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction.

The person seeking supervised parenting time for the other parent bears the burden of establishing that supervision is necessary. (at para. 52-53)

The court accepted that the mother had been the children’s primary caregiver except for the two-month period of her hospitalization. While recognizing that this was a temporary hearing, and the court was not making a final factual determination, the judge found that the mother was a “credible witness” in testifying in court about the father’s abuse of her, and about his threats to abduct the children to Germany or Afghanistan, where he had relatives. The court characterized his conduct in taking the children into his care, which included not enrolling the older child in school and withholding all in-person contact with the mother, as “appalling.” Justice Sherr concluded:

It is apparent to the court that there is a significant power imbalance between the mother and the father. The father is university educated…. The mother has cognitive and mental health challenges. She is very vulnerable. The father appears to have taken advantage of this power imbalance. It is easy for him to threaten and intimidate the mother. …it is easy for him to control the mother by telling her how he has powerful friends who will assist him with any abduction.

She believes him. He is powerful to her…

The court finds that the father has subjected the mother and the children to family violence. This violence has been physical, emotional, psychological and financial. It has been persistent. The father has acted in a controlling and coercive manner towards the mother. (at para. 79 & 103)

The court found that the mother had established “an objective and subjective basis” to fear for the safety of herself and the children, and awarded her temporary care and decision-making, with only limited, professionally supervised parenting time to the father, as well as a restraining order on his contact with the mother, and later ordered him to pay $10,000 towards the mother’s legal fees (2022 OCJ 28).

The decision in M.H.S. v M.R. illustrates the importance of an intersectional analysis, taking account of the multiple vulnerabilities of the mother that the father exploited in a coercive controlling way.

5.1.3 Alienating behaviour as family violence

The amended Divorce Act s. 16(3)(c) provides that a factor in making best interest decisions is each parent’s “willingness to support the development and maintenance of the child’s relationship with the other” parent. As noted by the Supreme Court of Canada in Barendregt v. Grebliunas (2022), s.16(3)(c) was formerly part of s. 16(10) of the 1985 Act and is sometimes referred to as the “friendly parent provision.” Some courts have held that undermining a child’s relationship with the other parent may be a form of “family violence,” as it may be psychologically harmful to both the child and other parent.

Some recent decisions in Ontario are of interest since the Children’s Law Reform Act has been amended with similar language to the Divorce Act. In C. v A.J. (2021 ONSC 8191), an Ontario family court found that the father’s course of alienating behaviour constituted “coercive control” and “family violence.” The mother claimed that the father had been physically and emotionally abusive towards her while they lived together, which eventually resulted in her moving to a shelter without the children. After separation, the father did not permit her to see the children for six months, and she was only able to see them after bringing a motion for temporary relief. The father reported to the child protection agency that the mother had been physically abusive of the boys. The agency investigated but concluded that the father had coached the two sons into making unfounded allegations against their mother. A clinical investigator from the Ontario Office of the Children’s Lawyer concluded that the father “exerted an enormous amount of pressure on the mother and the children to do his bidding… and incited the children to be belligerent” and aggressive with their mother (at para. 22). The Ontario Office of the Children’s Lawyer investigator was very concerned about the emotional environment for the boys while in the care of their father. At the parenting motion, Justice Audet ordered that the mother have primary care and sole decision-making, with the father having only supervised contact and, on consent, both the parents and boys were to undertake counselling.

While the courts are concerned about alienating behaviour, they also recognize that there are cases in which abusive parents, especially men, make unfounded claims of alienation against the other parent. In Armstrong v Coupland (2021 ONSC 8186), the mother wanted the father of their four-year-old child to have only supervised contact because of his abusive behaviour. At a hearing for a temporary parenting order, the mother’s counsel introduced emails which the father had sent the mother and her counsel, in which he claimed that they were “alienating” the girl from him. Justice Chappel concluded that the father’s communications were often:

…inappropriately aggressive, demanding and threatening. While many of the comments have been directed towards [mother’s counsel], they have been sent to the [mother] as well and have been clearly designed to destroy a solicitor client relationship that the mother considers to be critical to ensure the safety and wellbeing of herself and her children. In this sense, the communications amount to a pattern of threatening, coercive and controlling behaviour towards the [mother]. (at para. 39)

The court ordered that the father was only to have limited, supervised parenting time, and a restraining order was imposed on the father. Justice Chappel observed:

The definition of family violence specifically recognizes that conduct that may not constitute a criminal offence can constitute family violence for Family Law purposes…The specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognizes the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact that parent’s ability to meet the child’s physical and emotional needs. (at para. 21)

It is clear that the courts recognize that alienation can be part of a pattern of family violence and coercive control in undermining the victim’s relationship with the children. This paper is focused on abusers turning children against the other parent or a victim parent being falsely accused of “alienation” with the misuse of the concept (Lapierre et al, 2020; Sheehy & Boyd, 2020). We appreciate that claims of alienation need to be approached in a thoughtful fashion, and that there are unfounded claims of alienation as well as founded claims.

5.2 Parenting arrangements

There has been little research evaluating the application of specific types of parenting arrangements to different patterns of family violence. Too often, research has compared child adjustment outcomes for different parenting arrangements (e.g., shared decision-making versus a predominant or principal parent making all decisions) without including family violence as a moderator. In this section, we outline a range of parenting arrangements aligned to the research on family violence.

The cases at the extreme ends of the family violence spectrum are most easily addressed. At one end of the continuum, there is no doubt that a perpetrator of chronic family violence who has demonstrated a pattern of abusive coercive controlling behaviour over time, with little remorse or investment in treatment should have either no parenting or limited supervised parenting by highly trained professional staff. At the other end of the continuum, an isolated, relatively minor assault which is out of character, accompanied by genuine remorse, and that did not induce ongoing fear or trauma, may not preclude a co-parenting arrangement.

In between these extremes is a canyon of gray in which matching parenting arrangements to families is challenging and dependent on analyzing a host of factors. Some of these factors relate to historical relationships and characteristics of individuals, some relate to available resources in a particular community, and others relate to the stage of proceedings and available information, as well as to the children who are involved.

The dynamic nature of individuals and families compounds the complexity of this matching process. A family in crisis at the point of separation may present in a different fashion a year later, especially if there has been appropriate counselling and support. For other families, the state of crisis becomes chronic and litigation seems never-ending with professionals becoming enmeshed in the dispute. This reality means that complex cases require ongoing assessment and monitoring by the court with the assistance of court-related services.

Figure 4: Parenting arrangements after family violence

Figure 4: Parenting arrangements after family violence
Figure 4: Parenting arrangements after family violence – Text version

Figure four depicts parenting arrangements after family violence, which is shown in the form of a two ended arrow positioned vertically with a blue to orange color gradient moving from top to bottom. The topside of the arrow in blue has the label “low” and the bottom in orange has the label “high”; there is an additional label of “evaluated risk to children or caregiver” to the left of the image, arranged vertically also. The six labels within the arrow from top to bottom reads: (1) co-parenting, (2) parallel parenting, (3) primary residence parenting, (4) supervised exchange, (5) supervised parenting time, and (6) no contact.

5.2.1 Co-parenting

Definition and description

Co-parenting refers to an arrangement in which separated parents cooperate relatively closely in raising their children. This arrangement often approximates the pre-separation pattern of care for the children, with both parents actively involved in the lives of their children, sharing information, and co-operatively problem-solving the challenges of parenting as they arise. Within the broad definition of co-parenting, there may be a range of divisions of time spent in each parent’s home, and an assumption of flexibility in scheduling, taking account of the distance between homes, children’s needs and stage of development, and parents’ schedules (AFCC Ontario, 2021). Co-parenting may involve equal parenting time, for example a “week about” arrangement, but it is often not equal time, and there are likely to be changes in parenting time schedule negotiated by the parents as the children grow older and circumstances change.

In many cases of parental separation, co-parenting is best for children as it helps maintain a meaningful ongoing relationship with both parents; children’s stability and normal development are promoted. In dealing with specific cases, however, it is important for professionals and parents to be realistic in assessing whether co-parenting is appropriate and likely to promote the well-being of the children.

Indicators and contra-indicators

Co-parenting requires two parents who can maintain a civil and child-focused relationship post-separation. There should be mutual trust and respect that allows for constructive communication between parents. Parents may vary along these dimensions from time to time during periods of crisis or major transition (e.g., jealousy over new partners, challenges over parenting adolescents), but overall, the parents need to be able to make this arrangement work.

Co-parenting is contra-indicated by continuing family violence, including concerns about continuing effects of coercive controlling behaviour on victims. Other factors also contra-indicate co-parenting, including a history of poor communication, coercive interactions, inability to jointly problem-solve, or a lack of child-centred focus by one or both parents. In addition, there may be mental health problems or substance abuse suffered by one or both parents that can preclude use of co-parenting.

Special considerations

There are circumstances under which parents may overcome difficulties with time and/or counselling and are motivated to make a co-parenting arrangement work. On the other hand, there may be a parent who will frustrate the possibility of co-parenting, despite the best efforts of the other parent and third parties such as mediators.

There is considerable debate about whether co-parenting should be imposed on an unwilling parent. These cases require special skills on the part of assessors, lawyers and judges to properly assess the reason for the resistance to co-parenting. For example, a parent who has felt bullied or victimized and experienced considerable anticipatory anxiety in dealings with the other parent may have a legitimate aversion to co-parenting.

Case Suitable for Co-parenting Despite History of Family Violence

The Singhs were born and married in Canada. They separated four years ago. At the time of the separation, there was an incident of violence when Mr. Singh grabbed Mrs. Singh by the shoulders, shook her and threw her to the ground upon discovering she was leaving him for another man. He was charged with assault and because there was no prior history of violence and no injuries, he was fast-tracked into a batterers’ intervention program as part of a conditional discharge plea bargain. There have been no incidents of threats or harassment post-separation. Both parents have remarried and have developed a cooperative relationship with each other by necessity of the demands of their three children (ages 7, 11 and 14), who require help with school assignments and transportation to sports events on the same days at different locations. Although the children reside primarily with their mother, each parent is involved in day-to-day decisions, as well as more important issues regarding health care and education. There is flexibility based on the children’s needs and conflicting parental commitments in changing father’s normal parenting time schedule of alternate weekend and one evening mid-week schedule.

5.2.2 Parallel parenting

Definition and description

In contrast to the cooperative nature of a co-parenting arrangement, parallel parenting describes an arrangement where each parent is significantly involved in the children’s lives, but the arrangement is structured to minimize contact between the parents to protect the children from exposure to ongoing parental conflict, typically by having each parent make day-to-day decisions independently of each other when the children are in their care, and by allocating responsibility for major decisions, like education, to one parent. There is limited flexibility in a parallel parenting arrangement, and the parents typically abide by a structured and detailed parenting time schedule.

Parallel parenting developed in recognition of high conflict separations, where both parents appear competent and have been involved in the children’s lives. Rather than encourage co-parenting, the goal of this plan is to disengage the parents from each other and any long-standing hostilities, and reduce scope for conflicts (Fidler & McHale, 2020). Natural transitions can be used to limit parental contact, such as having one parent drop the children at school and the other parent pick them up to begin their parenting time. There must be a careful structuring of communication between the parents, for example, by requiring all communication to be by email or through an app which, if need be, can be monitored by a third party. Children should not be expected to carry messages back and forth in high-conflict cases. Parallel parenting is generally only appropriate for children if, despite their conflicts, the parents have fundamentally similar ideas and expectations about parenting and child-rearing.

There is controversy about parallel parenting because some professionals view it as a judicial “compromise plan” that is a form of imposed co-parenting. Some commentators have pointed out that it is naïve to believe that parents can raise their children in an effective manner without meaningful communication and suggest that parallel parenting is fraught with more problems than it solves (Epstein & Madsen, 2004). If there is a lack of genuine communication and cooperation between parents, the plan may require active negotiations and arbitration by a third party, such as parenting coordinator, if the parents have the resources to afford these additional supports.

Parallel parenting will typically involve a child spending more time in the care of one parent, who will be the primary residential parent, though there can be roughly equal time in the care of each parent. Parallel parenting may be most appropriate at the temporary (or interim) stage, with the hope that over time, parental hostility may decline, and that parallel parenting may develop towards some form of co-parenting (Fidler, 2012). In cases where there is continuing high conflict and a trial is many months or even years after separation, conflict is less likely to diminish after trial. Therapy for the parents to deal with their feelings of anger and hostility may help parallel parenting to evolve towards co-parenting, but this is not always a realistic possibility.

Indicators and contra-indicators

Parallel parenting assumes that each parent has a positive contribution to make in their involvement with the children, but direct parent-parent contact needs to be limited due to ongoing acrimony and the possibility of hostility in the presence of the children. This acrimony may be based on mutual mistrust, personality conflict, or inability of one or both parents to move past the separation and focus on the future. Any clinical or legal finding that one parent poses a physical, sexual or emotional threat to the children, or that there are continuing concerns of violence or coercive control towards the other parent, would contra-indicate a parallel parenting arrangement.

Special considerations

Whether a parallel parenting arrangement might be appropriate in the aftermath of violence towards children or an adult partner generally requires a careful assessment by a professional with a background in family violence cases. Factors critical to this determination include whether the perpetrator of the violence has taken responsibility and successfully completed an intervention; whether the children have received services and are experiencing ongoing symptoms of trauma or distress; and the developmental stage of the children. A clinical finding of ongoing risk to children or the other parent clearly contra-indicates a parallel parenting arrangement.

Case Suitable for Parallel Parenting

The Smiths had an acrimonious marriage and separation. Their twin girls (age 7) are attached to each parent but are frightened by the thought of the two parents being in each other’s presence at school events or at recreational events. The children report a history of spousal violence in the marriage where the two parents would yell and throw things at each other. Since the separation, the children have alternated weeks at each parent’s home with the exchange (changeover) taking place at the end of the school day Fridays (and at their cousins’ home during holidays) to minimize the parents being in each other’s presence. Each parent has decision-making ability while the children are in their care. There are no disagreements about major issues such as religion, education and health care. In addition, a parenting coordinator-social worker has been named to mediate or arbitrate any disputes. The parents are not to be in contact with the children while they are in the care of the other parent, except by special agreement with the co-coordinator or in an emergency. Communication between the parents is by email which is monitored by the parenting coordinator (perhaps by an app like Our Family Wizard).

5.2.3 Primary residence parenting

Definition and description

Primary residence parenting is somewhat analogous to what occurred before the 2021 Divorce Act reforms when one parent had custody of the children and the other parent had a limited access schedule. Primary residence parenting arrangements place the child primarily in the care of one parent while the other parent has a more limited role, recognizing that there are limitations to the ability of the other parent to make positive contributions to the child, possibly due to ongoing concerns about that parent’s use of coercive control, inability to prioritize the child’s needs over their acrimony towards the primary residential parent, or due to serious concerns about the parenting capacity, mental health or substance use of the other parent. In this type of parenting arrangement, the parent with the child’s primary residence is granted sole decision-making on all or most parenting issues, but may still consult with the other parent on their views. The child maintains contact with the other parent, but parenting time may be limited to weekends or even just daytime visits. The concerns are not at the level of needing supervised exchanges or supervised parenting which are discussed below.

Indicators and contra-indicators

This plan assumes that there are no safety concerns that would require supervision for exchanges or supervision of the parenting time. It also assumes that the parenting time is not being used to undermine the primary residence parent.

Special considerations

This plan may work best when the family violence or coercive control by one parent has been acknowledged and there is an intervention plan in place to address the past conduct and the impact it may have had on the victimized parent and the children, and safety concerns are adequately addressed. Over time, this plan could evolve into a co-parenting plan.

Case Suitable for Primary Residence Parenting

The Kowalskis’ separation was acrimonious. During an argument about their separation, Mr. Kowalski threatened his wife and shoved her against the front door when she tried to exit the home. Their sons were exposed to this violence and the aftermath. Mr. Kowalski was charged with assault. He accepted responsibility and indicated his remorse. The case was resolved with a conditional discharge based on his willingness to attend a partner assault program and a parenting program to consider the impact of his behaviour on his two sons (ages 7 and 9 years). He had been involved with his sons through soccer and was an assistant coach on the older boy’s team. Ms. Kowalski was given the role of primary residential parent and all decision-making. Mr. Kowalski had every Saturday from 10 am to 7 pm and Wednesdays from after school until 8 p.m. to coincide with the soccer schedule. Ms. Kowalski was involved in counselling dealing with the family violence and trauma she suffered. She is not fearful of her ex-husband. The Kowalskis’ were optimistic that they might move to a more flexible schedule if Mr. Kowalski was able to maintain safe and respectful behaviour towards Mrs. Kowalski.

5.2.4 Supervised exchange

Definition and description

Supervised exchange involves transferring children from the care of one parent to the other under the supervision of a third party. The supervision can be informal, for example, by a family member, neighbour or volunteer, or using a public venue for the exchange, such as the parking lot of a fast-food restaurant or, if necessary, at a police station. The supervision can also be formalized through a supervised exchange service or use of a designated professional, such as a childcare worker or a social worker. The underlying premise is that by either staggering arrival and departure times or having third-party witnesses, the parents will not come into contact. These are cases with sufficient concerns about one parent that there is a need for supervision of the transitions. However, there is an expectation that the child will still benefit from a continuing relationship with both parents, and there is not a sufficient risk to the safety or emotional well-being of the children while in the care of the non-primary care parent that parenting time needs to be supervised.

Indicators and contra-indicators

Supervised exchange provides a buffer in cases where the ongoing conflict cannot be contained by the parents at transitions, thereby exposing the children to the risk of high levels of conflict. It is also useful when there is a historical pattern of family violence, and the victim may experience distress or have trauma triggers encountering the other parent. However, supervised exchanges do not mitigate the risk of violence if there are ongoing concerns about the safety of children and their primary caregiver.

Special considerations

Supervised exchanges are sometimes inappropriately used to create a sense of safety when a more restrictive measure (such as supervised parenting) is warranted. As well, informal third-party supervised exchanges or exchanges in a public place may be well-intended but inadequate; supervision may require a knowledgeable professional to monitor safety and inappropriate behaviours. If there is continuing high conflict, even exchanges in a place like a police station parking lot can be hostile and very stressful for children. Further, some abusers may be involved in more subtle behaviours that are emotionally abusive, undermine the other parent, or signal threats to the other parent. These more insidious transgressions are difficult for lay people or family members aligned with the perpetrator to identify.

Case Suitable for Interim Supervision of Exchange

The Zhangs have been separated for six months. Ms. Zhang describes her husband as a bully who was verbally abusive during the marriage and threatening in his demeanor. He physically assaulted her on one occasion when she told him that she was having an affair with a colleague at her work, and wanted a divorce. The police were called; the father was arrested, pled guilty and is on probation. Ms. Zhang has interim parenting decision-making responsibility and moved to her parents’ home, a 45-minutes’s drive from the former family home, where the father continues to reside. Mr. Zhang was verbally abusive of his wife at the initial visits after the separation, and the court allowed him to see his son every Saturday afternoon to Sunday afternoon, through an exchange at a supervised parenting centre. Mr. Zhang desires equal parenting time but also understands that, given his abuse, he needs to maintain non-abusive behaviour for a period of time to rebuild his families’ trust in him. Ms. Zhang reports that she is no longer frightened of her husband but doesn’t want to be in his presence to avoid any conflicts over outstanding financial issues, which are in family litigation. A court review is scheduled in three months.

5.2.5 Supervised parenting time

Definition and description

Supervised parenting time is an arrangement designed to promote a child’s safe contact with a parent who is a risk due to a range of behaviours from physical abuse to possible abduction of the child. It may also be appropriate where a child has fears of a parent, for example, because of having witnessed the parent perpetrate abuse or because of having been abused by that parent, but still wants to maintain a relationship. Although supervised parenting time is a long-accepted practice in the child protection field (Saini et al., 2012), it has emerged more recently in the parental separation context with parents who pose a risk to the children or the other parent (Hunter et al., 2018). Like supervised exchanges, supervised parenting time may vary in formality from extended family or volunteers to a specialized centre with professional staff with expertise in these issues. Related to this plan is the use of therapeutic supervised parenting time,Footnote 6 which involves a mental health professional who may be involved in trying to improve a troubled parent-child relationship through counseling and support during this parenting time.

Supervised parenting time should normally be a short-term solution to concerns about child safety, though in some cases it may continue for years where these concerns have not dissipated but the child continues to enjoy seeing the parent (Bala et al., 2016).

While much less expensive and less intrusive for the parent and child, supervision should only be provided by a friend or relative if the court is satisfied that this person is willing and able to fully protect the child and resist the wishes of the supervised parent.

Indicators and contra-indicators

Supervised parenting time should only be undertaken if it is believed that a child will benefit from a parent maintaining an ongoing role in the child’s life but there remain concerns about the risk that the abusive parent poses to the other parent and the child. There are ongoing risks of physical or emotional abuse to the adult victim and the safety of the child is in jeopardy. Supervision is usually only considered for what is expected to be a transitional period while the parent addresses behavioural or emotional issues and proves that the supervision is no longer required due to changes in their behaviour and addressing problem areas. Serious concerns demand more specialized services and well-trained staff as opposed to volunteers. There are more extreme cases where the safety offered by the supervisor is not appropriate for the degree of risk and no contact may be appropriate.

Special considerations: supervised parenting programs

There is great variability among supervised parenting services, training of staff and mandates for programs. If there has been a history of sexual or emotional abuse of a child, the supervisor should have appropriate training to recognize subtle forms of abuse. There have been efforts to establish standards for staffing and practices (e.g., Supervised Visitation Network, 2022; Pulido et al., 2011), but in many locales their implementation would require greater funding than is currently available. Some parents may require extensive assistance during their parenting time to say and do things that match their children’s needs and stage of development. Professional supervision is relatively expensive, though in some locations in Canada, especially in Ontario, there are subsidies available for supervision of visits for low-income parents.Footnote 7

In some cases, there may be a strained relationship between an abusive parent and child due to historical events or the lengthy disruption of any meaningful parent-child relationship and the child may require more than a safe place for parenting time. In these cases, significant interventions by a trained professional may be required to promote healing and enhance parenting before visits with the child should be allowed.

Supervised parenting cannot be a substitute for a comprehensive assessment by a qualified mental health professional. Courts may draw inappropriate conclusions about the meaning of “successful” visits out of context of the larger picture an assessment provides. Too often, supervision is dropped (i.e., visits are no longer supervised) after a period in which nothing overly negative has occurred but there have been no interventions. If there has been significant violence or a child has continuing fears, there should be an onus on a perpetrator of the violence to show that they have made significant changes and are taking responsibility for past transgressions, not merely that they can contain inappropriate behaviour under supervision (Bancroft et al., 2012; Scott & Crooks, 2007).

It has long been recognized that it is important for there to be clear expectations and written agreements between the supervisor and the court, counsel and parents for supervision, especially in cases such as where there has been a history of child abuse (Oehme & O’Rourke, 2011). These agreements have many benefits. Supervised parties have clear boundaries about acceptable and unacceptable behaviours; supervisors know what behaviours they are monitoring; courts have records and information upon which to base subsequent decisions; and there is clear agreement among parties of the situation (versus an informal arrangement where the supervisor and supervised party may see the supervised party as the victim or client). A recent longitudinal study of parents and children in (Canadian) supervised parenting time programs demonstrates the need for careful assessment and individualized parenting plans as not all children benefit or feel safe from supervised parenting arrangements (Saint-Jacques et al., 2020).

The Supervised Visitation Network (2022) has very useful standards and guidelines, as well as sample contracts, available on their website. Practices vary across Canada in terms of government funding and availability of services.

Case Suitable for Supervised Parenting Time

Ms. MacLeod is an alcoholic who has endangered her children in the past through drinking and driving. She has also assaulted her husband several times while she was drinking, including an incident which resulted in a conviction 18 months ago for stabbing him in the shoulder with a kitchen knife. After the stabbing, the father separated from her. The children have lived with him pursuant to a court order. Her contact was limited to one supervised visit a month. Her two daughters (ages 5 and 8) are attached to her but were frightened by her behaviour when she was drinking, and a few visits were cancelled because she arrived at the supervised visitation facility inebriated. The children want to see her, and their father wants to promote an ongoing relationship if it can be done in a safe fashion. She has completed a residential program related to addictions and is involved in counselling about her violent behaviour. She has joined Alcoholics Anonymous and has been sober for six months. The court awards her three hours of supervised visits, twice a week at a government-funded supervised parenting centre.

5.2.6 No contact

Definition and description

In cases where a parent presents an ongoing risk of violence to the child or other parent, or has made threats of abduction, it may be that no meaningful parent-child relationship is possible for a significant period of time. In these cases, the court may be required to suspend all parenting on a short- or long-term basis. While in theory parenting time should only occur if it promotes the best interests of the child, in practice, judges often presume that a child will generally benefit from a relationship with both parents and require significant evidence of risk of harm to the child before terminating all visits (Holt et al., 2008; Jaffe et al., 2008). Cases where a victim expects contact with an abuser and child to be suspended present a significant challenge for advocates and assessors; it is generally necessary to provide thorough and credible information to the court to obtain an order to suspend the parent-child relationship.

Even if contact is suspended with an abusive parent, there may be the prospect of that child deciding to have contact with that parent in late adolescence or adulthood when the child has the ability to take protective steps.

Indicators and contra-indicators

When a parent has engaged in a pattern of family violence and has indicated no remorse and real willingness to change, suspension of the parental relationship may be required. There are also cases where the abusive parent has changed over time, but the level of trauma engendered historically in their family precludes a fresh start. For example, in cases of severe violence with potentially life-threatening injuries to a parent or child, the children may continue to experience flashbacks and nightmares triggered by any reminder of the perpetrator (Deutsch et al., 2020).

Although a perpetrator may ultimately receive significant consequences in the criminal justice system and demonstrate some changes in behaviour, the damage done to the parent-child relationship may continue. In cases such as these, successful parent-child contact depends on the family undergoing change rather than one individual party successfully completing treatment. Attempts at reunification require consent of all the parties and a solid foundation of a parent-child relationship as well as a demonstrated commitment for a reunion in the family.

Special considerations

A court order for no contact is relatively rare. Section 2.3 outlined some of the tools and risk assessment instruments that are required to present evidence to the court about the concerns that may justify this response. It may be appropriate as a temporary measure but should also occur on a long-term basis if the need for this is established. There are special challenges for courts and court-related professionals to try to prevent child homicides and domestic homicide-suicides in the context of parenting disputes. In some cases, the perpetrator may not be seen as a risk for child abuse because they have never directly harmed the child but there is a concerning pattern of coercive control and a potential for a parent to kill the child as an act of revenge against their partner for leaving the relationship (Jaffe, Campbell, et al., 2014; Scott et al., 2020). Although children’s best interests are supposed to be the focus of a family court hearing, their needs and risks may be overlooked as the children may be the hidden victims of domestic violence and be at risk of homicide (Reif & Jaffe, 2019).

Case Suitable for No Contact

Mr. Able had a long history of spousal violence, which never came to the attention of the police but was reported by his wife to several counsellors and the family doctor. He denies any responsibility, despite medical evidence in regard to his wife’s prior injuries and consistent observations of other family members. After separation, the three children disclosed to a social worker a history of physical abuse by their father and exposure to spousal violence. The family court made a finding of spousal violence and ordered supervised visits, recommending that Mr. Able take a batterers’ treatment program. Mr. Able refused to participate after attending an initial intake interview where he reported that his wife was his only problem. Mr. Able went to the supervised access centre earlier than directed and confronted his ex-wife in front of the children. He threatened to kill his wife and himself if she did not return to the matrimonial home. The staff called the police and charges were brought before the criminal court.

The Family Court judge suspended all contact between Mr. Able and the children with a court review scheduled in six months and the expectation that the father will present evidence at the review date of his participation in treatment and provide the court with a risk assessment and risk management plan.

5.3 Type of violence history

There is a wide range of patterns of family violence and understanding the context and pattern of the violence is more informative than merely focusing on the most serious or most recent incident of aggression. Lawyers, judges, assessors, and other professionals, as well as parents, should be considering the type of family violence and resources available, when developing parenting plans to assure the safety of the children and the adult victim.

The continuum of violence presented in Figure 3 identifies a range of factors in considering the nature, impact, and associated characteristics of different forms of abuse. This continuum together with a domestic violence history and an identification of coercive control can be added to the dimension identified of low to high-risk parenting arrangements as shown in Figure 5, below.

Thus, a history of situational couple violence may not preclude co-parenting or parallel parenting, but a history of coercive control or post-separation violence, abuse or stalking would certainly contra-indicate these responses. Further, the presence of a child maltreatment history must also be factored into these considerations. The type and severity of violence and the safety of the victims must be assessed for both child and adult victims.

Figure 5: Parenting arrangements after family violence and history of violence

Figure 5: Parenting arrangements after family violence and history of violence
Figure 5: Parenting arrangements after family violence and history of violence – Text version

Figure 5 depicts a graphic for Parenting arrangements after family violence and history of violence. This figure consists of two images with the one on the left pointing to the one on the right with an arrow in between them. The left image is a double ended vertical arrow with a blue to orange color gradient; the top being blue and the bottom being orange. In the middle of the arrow there is white rectangular box with the label “Nature, Frequency, and Severity of Family Violence”. Above the box there are three labels on the arrow, going from top to bottom being (1) situational couple violence, (2) no child maltreatment, and (3) high conflict. Below the box there are three labels also, going from top to bottom (1) abuse (child or adult partner), (2) battering, and (3) coercive control/ stalking.

The right image depicts parenting arrangements after family violence shown in the form of a double ended arrow positioned vertically, with a blue to orange color gradient, moving from top to bottom. The topside of the arrow in blue has the label “low” and the bottom in orange has the label “high”; there is an additional label of “evaluated risk to children or caregiver” to the left of the image, arranged vertically also. The six labels within the arrow from top to bottom reads: (1) co-parenting, (2) parallel parenting, (3) primary residence parenting, (4) supervised exchange, (5) supervised parenting time, and (6) no contact.

5.4 Resources for children, victims and perpetrators

There is often a large gap between the ideal plan that a family requires and the actual resources available in a community on a timely basis.

Family courts are only as effective as the resources that can be provided to parents and their children, inside and outside the courthouse. The starting point in family violence cases is access to risk assessment information as outlined in Section 2.3 and then implement safety plans for the parent victim and children, as well as risk management strategies to deal with the perpetrator. Parents and children involved in the family justice process usually benefit from appropriate counselling and support services, which may or may not be readily available. This need is accentuated in family violence cases. For example, in a case with an abuser with multiple problems, there may be a need for the perpetrator to seek assistance for substance abuse-related problems and enter a batterer’s intervention program. During this time, the children would receive counselling in a group program for children exposed to family violence, and the victimized parent may be in a support group to develop coping strategies for dealing with a history of violence. Parenting time would be dependent on successful entry into treatment by the perpetrator, the perpetrator’s acknowledgement and responsibility taking for the violence, and the use and availability of a supervised parenting program. Promising practices in this area include programs for perpetrators that simultaneously address issues of child maltreatment and IPV (McConnell et al., 2017, Scott et al, 2021). The dimension of resource availability is an additional factor for consideration, as depicted in Figure 6. As noted in the diagram, a lack of availability of resources may require a more restrictive parenting plan.

In many cases, courts must “make do” with limited resources, which may involve a community volunteer or grandparents supervising the visits, while parents and children wait for counselling resources that fall short in that they do not specialize in family violence. In the absence of available and coordinated services, the risk of physical and emotional harm to children and adult victims is substantially raised. In extreme cases, the lack of proper assessment of risk and lack of risk reduction strategies may contribute to domestic homicides (Reif & Jaffe, 2019; Scott et al, 2020).

Timely access to services may be impeded by a lack of community and parental resources, waiting lists, and the absence of culturally appropriate service providers. Often, multiple services need to be accessed, including services for batterers, victims and children exposed to family violence. Even once these services are in place, there is a critical need to coordinate service delivery and communication of information. Aside from confidentiality concerns, the nature of information required by child assessors, lawyers and judges may be beyond the mandate, policy and record-keeping practices of individual agencies involved.

Aside from concerns about the availability of resources, there is also an active debate about the effectiveness of various programs for perpetrators of family violence. Some researchers have argued that batterer programs are successful for many perpetrators, at least in the context of a responsive justice system that includes monitoring and compliance reviews as well as an overall coordinated community response (Gondolf, 2012). A more pessimistic outlook contends that batterer intervention programs are largely unsuccessful in changing actual behaviour towards victims (Cheng et al., 2021). The research in this area is moving beyond whether intervention works to a more nuanced picture of what works for whom under what conditions. For example, some researchers suggest that indicators such as severe psychopathology, ongoing substance abuse problems, and violations of court orders predict poor outcomes in any batterer intervention program (Gondolf, 2012).

If a family court orders some type of counselling or intervention, it is important that there is reporting back to the court by service providers to monitor compliance, though too often there is no judicial monitoring. Reporting to the court encourages engagement and allows adjustments to the order as circumstances require. In addition, high-conflict and family violence cases benefit from specialized judges who have family law experience and, often, a one-family-one-judge case management model to ensure appropriate assessment and implementation of court and community remedies (Bala et al., 2010; Cyr et al., 2020; Martinson, 2010; Paquin-Boudreau et al., 2021).

Figure 6: Parenting arrangements: History of violence and resources available

Figure 6: Parenting arrangements: History of violence and resources available
Figure 6: Parenting arrangements: History of violence and resources available – Text version

Figure 6 depicts Parenting arrangements: History of Violence and resources available. This graphic has three images, with the first two having an arrow pointed to the one to the right of them.

The left image is a double ended vertical arrow with an orange to blue color gradient; the top being blue and the bottom being orange. In the middle of the arrow there is white rectangular box with the label “Nature, Frequency, and Severity of Family Violence”. Above the box there are three labels on the arrow, going from top to bottom being (1) situational couple violence, (2) no child maltreatment, and (3) high conflict. Below the box there are three labels also, going from top to bottom (1) abuse (child or adult partner), (2) battering, and (3) coercive control/ stalking.

The middle image is another double ended vertical arrow with an orange to blue color gradient; the top being blue and the bottom being orange. In the middle of the arrow there is white rectangular box with the label “Resources available”. The arrow above the box is labelled “accessible, appropriate interventions for victims, perpetrators, and child witnesses. Below the box there are two labels, going from top to bottom (1) Services inaccessible or inappropriate, and (2) systemic barriers (e.g., poverty, language).

The right image depicts parenting arrangements after family violence shown in the form of a double ended arrow positioned vertically with a blue to orange color gradient, moving from top to bottom. The topside of the arrow in blue has the label “low” and the bottom in orange has the label “high”; there is an additional label of “evaluated risk to children or caregiver” to the left of the image, arranged vertically also. The six labels within the arrow from top to bottom reads: (1) co-parenting, (2) parallel parenting, (3) primary residence parenting, (4) supervised exchange, (5) supervised parenting time, and (6) no contact.

Although monitoring individuals’ compliance with an intervention may provide useful information to the court, the use of specific behavioural goals may be more valuable. In a best-case scenario, a parenting arrangement post-family violence would identify specific goals for the perpetrator to achieve before progressing further with the plan. For example, if a perpetrator had substance abuse issues, behavioural goals could include completion of substance abuse intervention, as well as clean drug tests for a specified period before unsupervised parenting would be considered. Identifying specific goals provides a more useful framework for parties’ monitoring progress to make ongoing assessments about family needs, rather than relying simply on the passage of time.

Other prerequisites for a change in parenting arrangements may be tied to the victim’s or children’s functioning. For example, successful completion of therapy for a child victim or witness to family violence, as indicated by the child’s lack of symptoms, general functioning, a therapist report, and the child’s ability to articulate who was responsible for the violence, might be important indicators that a less restrictive plan of parenting time should be considered. Unfortunately, too often in Canada, there is little monitoring or reporting back to family courts that make orders, and when this occurs, it is focused on program attendance rather than attaining specific behavioural goals. Too often in high-conflict and family violence cases, the basis for a variation application is the passage of time without serious incident and, perhaps, the limited information about program attendance, rather than the attainment of specified behavioural goals.

5.5 Timing of disclosure and establishing validity of allegations

Disclosures of family violence may be made at many different points of involvement in the child protection, criminal or family process. Disclosures may happen while a couple is still together, at the point of separation, or after the separation. The disclosure of family violence usually triggers a crisis for a family. If family violence is reported to the police by the victim while the parties are living together, the likely arrest of the perpetrator and their removal from the home will mean the disruption of parenting and often have economic repercussions.

Critical factors in whether a disclosure of family violence leads to more intensive investigation include the nature of the allegations, the credibility of the party raising the allegations, and the professional receiving the allegations. There is a tendency for disclosures made in the context of parental separation and an ongoing parenting dispute to be considered suspect by police, child protection authorities and other justice system professionals. These allegations may be viewed as self-serving and made by the disclosing parent to buttress a claim for parenting, or to make a claim for a restriction of the role of other parent in the child’s life. However, it must be recognized that in many cases, victims of family violence feel unable to disclose their abuse until after separation, and that many post-separation allegations are valid (Jaffe et al., 2014).

A central issue for separating parents is whether allegations of family violence have become part of a criminal or child protection process, or whether the allegations are left to be resolved in family court. If the police or CPS become involved with the family, and investigate and substantiate family violence concerns, then the family justice system generally does not have to resolve conflicting allegations. However, if reports of family violence are only made after separation, child protection agencies tend to be reluctant to be involved. Child protection workers with heavy caseloads are often relieved when parents are seeking protection through the family law system and may decide not to aggressively pursue a protection investigation, especially if an allegation is made after separation and a parent’s family court application is underway. Child protection workers are more likely to be involved if the allegations of child abuse are more serious, but even in these cases, if a parent reporting abuse by the other parent is responsibly caring for the children, child protection workers may be inclined to close the file and leave parenting arrangements to the family court (Birnbaum & Bala, 2022; Olszowy et al., 2021; Scott et al., 2020).

In the absence of investigation and clear documentation of family violence by the police or child protection services, the family justice system is often faced with conflicting allegations and denials by the parents. In a family law case, there is an onus on the party making an allegation to prove it, though the standard of proof is the civil standard of “proof on the balance of probabilities,” making it less difficult to establish in family court that abuse occurred than in a criminal court proceeding, where there must be “proof beyond a reasonable doubt.”

In some family court cases, a genuine victim may be unable to establish the fact or significance of family violence because of the lack of effective legal representation. Even a family lawyer with experience in this area may have considerable difficulty establishing that abuse occurred if there is a lack of corroborative evidence of the victim’s allegations, for example from a doctor, neighbour or babysitter.

As discussed in Section 4, it is not uncommon in contested parenting disputes for the court to appoint an independent psychologist or social worker to assess the case and report to the court, usually including recommendations for a parenting plan that will promote the best interests of the child involved. An assessment can help a court to determine the validity of an abuse allegation, provided that the mental health professional conducting the assessment has appropriate training, knowledge and skills to deal with these especially challenging cases. In many jurisdictions, there is a shortage of professionals who are willing to do this work. Research on family court files in one locale in Canada found a lack of assessments in general and no risk assessment on the dangers facing adult victims and their children (Neilson et al., 2022).

Post-separation reports of child abuse, especially child sexual abuse, can be very challenging for the family courts. In some cases, the child or parent feels too intimidated or guilty to disclose the abuse until after separation, and in other cases child abuse may not begin until after separation. There is, however, also a higher incidence of unsubstantiated allegations of child abuse in the post-separation context than in other situations (Parkinson, 2021; Saini et al, 2020; Trocmé & Bala, 2005). Only a relatively small number of unfounded post-separation allegations of child abuse are due to deliberate or malicious fabrication. More common are cases of post-separation allegations in which the accusing parent has an honestly held (albeit erroneous) belief about abuse, based on the child’s vague descriptions or symptoms. The parent’s own abuse history, their poor view of the other parent, and lack of a trust relationship between parents may well contribute to an unfounded belief that child abuse occurred.

It is important to recognize that many of the unfounded post-separation allegations of child neglect and abuse are made by fathers against primary care mothers or their new partners (Houston et al, 2017; Johnston et al., 2005). It is also important to appreciate even in the context of parental separation, family violence is under-reported, and some victims may be reluctant or even advised not to report for fear of inflaming the dispute or being subject to claims of engaging in alienating behaviour (Hrymak & Hawkins, 2021).

In some cases, the accusing parent holds erroneous beliefs of child abuse so strongly that the accusing parent will reject independent professional opinions refuting the allegations. In these cases, courts and community service providers must manage their limited resources to ensure repeated assessments and the litigation process are not harming the children. If the accusing parent is the primary caregiving parent, the family court may be faced with the dilemma of whether to accept that parent’s reality if the children are strongly bonded to them or risk disrupting the attachment with the primary caregiver in favour of the other parent. The fact that a parent continues to hold unfounded beliefs about child abuse perpetrated by the other parent in the face of clear refutation by investigating professionals may be symptomatic of serious emotional problems or a personality disorder (Birnbaum & Bala, 2022).

5.5.1 Interim hearings and temporary orders

The period after separation may be volatile, and victims and their children may be especially vulnerable if they are leaving a relationship where there has been coercive controlling behaviour by a perpetrator. This is also a period of heightened lethality. If the police are involved and a criminal proceeding has been commenced, conditions of release of the alleged perpetrator on bail may provide some protection and stability.

If criminal proceedings have not been commenced, the period after separation can be especially challenging for victims, their lawyers, and the family courts. There may be conflicting claims, and little time to secure evidence to prove what has occurred, especially in the context of an interim hearing that is often based only on affidavit evidence, without cross-examination. Further, the children may be unsettled as parental care arrangements and often their place of residence may be in flux. While the requirement of the amended Divorce Act s.16(2) to give priority to child safety may be especially significant at the initial stages of the family court process, there remains a concern that parental relationships should be maintained if possible. Initial orders that require supervision or restrictions on parenting time will often be time-limited to avoid jeopardizing the children’s relationship with an alleged perpetrator if the allegations are unfounded, based on misunderstandings, or less serious than alleged.

The need for a “cautious approach” at the initial stages of a family proceeding where violence is alleged was recognized by the Quebec Court of Appeal in Droit de la famille – 21917. The parents lived together for over three years and had two young children. The mother left the family home with the two young children and went to live with her parents, claiming that she was the victim physical, emotional and sexual violence. She was prepared to allow the father to have parenting time, but he applied for a “nesting order” that would have the children living in the former family home, and each parent moving in for their parenting time and then moving out. Within two months of separation, a trial judge granted the father’s request for a nesting order, which had the advantage of allowing the children to remain in their home but raised real concerns about the safety of the mother and the potential for her continued abuse. The Quebec Court of Appeal had an expedited hearing and reversed the nesting order, requiring the parents to exercise their parenting time in their own residences, with Justice Hogue writing:

I would reiterate that, at this point, that the spousal abuse allegations are unresolved, and cannot be assumed to be true. I would add, however, that they cannot be ignored either.

That being said, I believe that forcing the [mother] to live in the family residence when she exercises her parental time a residence to which the [father] would necessarily have access and to which he would have the key given that he would also be required to exercise his parental time there, is likely to cause irreparable harm to the [mother].

In addition to creating a feeling of insecurity in her, maintaining this order would force the applicant to leave her parents’ home and to remain, during the exercise of her parental time, in a place where the respondent could enter easily….. This, in my opinion, could constitute a serious danger for her physical, psychological and sexual integrity if it were eventually to be shown that she was indeed the victim of domestic violence.

I recognize that it is possible that the spousal abuse allegations may eventually turn out to be unfounded, but at this point I believe that one must exercise caution and accept that they may be true in order to determine there is irreparable harm.Footnote 8

The Court of Appeal ordered that the parents have their next attendance in the family proceedings within two months. If there is evidence that raises significant family violence concerns, but there is a lack of sufficient evidence to establish whether there are legitimate child safety concerns, a temporary supervised parenting arrangement may serve a dual purpose of protecting alleged victims from potential threat, and protecting wrongly accused perpetrators from further allegations. A more permanent arrangement must be made after further information is gathered. Figure 7 depicts this dimension of timing of disclosure/stage of proceeding as an additional consideration.

Figure 7: Parenting arrangements after family violence as a function of history of violence, resources available and timing of disclosure

Figure 7: Parenting arrangements after family violence as a function of history of violence, resources available and timing of disclosure
Figure 7: Parenting arrangements after family violence as a function of history of violence, resources available and timing of disclosure – Text version

Figure 7 depicts parenting arrangements after family violence as a function of history of violence, resources available and timing of disclosure. This figure includes four images, all of which are wide, double-ended vertical arrows with a blue to orange gradient; blue at the top and orange at the bottom. Starting from the left, three of the four images contain a cream coloured box at the middle of the wide arrow. Each of these boxes contain text and have a chevron pointing to the next box to the right.

In the first image on the left, the box in the middle of the double-ended arrow says “Nature, frequency, and severity of family violence”. In the top portion of this arrow are three sets of words. From top to bottom it says (1) Situational couple violence, (2) No child maltreatment, and (3) High conflict. In the bottom portion of the arrow there are three more sets of words (1) Abuse (child or adult partner), (2) Battering, and (3) Coercive control/stalking.

The second image from the left is another double-ended vertical arrow. In the middle of the arrow there is box with the label “Resources available”. In the top portion of this arrow is the following phrase, “Accessible, appropriate interventions for victims, perpetrator, and child witnesses”. In the bottom portion of the arrow there are two more sets of words (1) Services inaccessible or inappropriate, and (2) Systemic barriers (e.g., poverty, language).

The third image from the left is another double ended vertical arrow with an orange to blue color gradient; the top being blue and the bottom being orange. In the middle of the arrow there is white rectangular box with the labels “Timing of disclosure” and “stage of proceeding”. The arrow above the box has two labels, from top to bottom they are (1) Longer term planning and (2) adequate information to evaluate safety of children and adults. Below the box there are four labels, going from top to bottom (1) interim hearings, (2) family in crisis, (3) red flags for lethality, and (4) continued exposure to violence.

The fourth and final image is the same graphic from figure 4, which in the form of a double ended arrow positioned vertically with a blue to orange color gradient. The topside of the arrow in blue has the label “low” and the bottom in orange has the label “high”; there is an additional label of “evaluated risk to children or caregiver” to the left of the image, arranged vertically also. The 6 labels within the arrow from top to bottom reads: (1) co-parenting, (2) parallel parenting, (2) primary residence parenting, (4) supervised exchange, (5) supervised parenting time, and (6) no contact.

5.5.2 Orders at trial and review

Trials over parenting issues in family court are usually held many months, or even years, after separation. If the parties have resources, they will have had time to marshal evidence. There may also be a court-ordered assessment. The parents’ conduct since the separation may also be very revealing.

If the family violence concerns are proven to be founded, the court will look for evidence about the effects of the violence on the parents and children as well as the resources needed for rehabilitation and safe contact. Family court orders made after a trial are generally intended to be final and remain in effect until there is a variation application, which requires a “material change in circumstances," or the parties agree to make a change. However, in cases involving high conflict or family violence, there may need to be provisions in the order made after trial for judicial review or monitoring. Although the courts and parties may value settlements and closure as opposed to ongoing litigation, complex cases involving family violence require monitoring and possibly long-term involvement by the court or court-related services (Bala et al., 2010; Martinson, 2010).

5.5.3 Re-establishing a child’s relationship with a parent who has abused the other parent

Courts often seek to discourage parents from getting into prolonged litigation because of the emotional and financial costs as well as the negative impact of ongoing conflict on children (Jaffe et al., 2010). Once a case enters the litigation process, there are many options for lawyers and judges to consider, such as a court-ordered assessment by a mental health professional, court monitoring and case management by a single judge (see Martinson & Jackson, 2017). In general, if there are findings of family violence or child abuse, a key step beyond safety planning and risk management is providing treatment for the victimized parent and the children who may have been traumatized by their exposure to the domestic violence or direct abuse. Another important step is providing family violence interventions for the abuser, if they are willing to engage.

Some parents who have been perpetrators of family violence will continue to deny or minimize their conduct and will be resistant to change, but others may, over time, be willing to accept at least some responsibility and be willing to change to have a good relationship with their children. Perpetrators who are willing to change may go through stages of response in the family litigation process. The first stage often involves the abuser’s denial and minimization of the abuse; the second stage is the admission of violence but the lack of connection to the children’s welfare (“intimate partner violence is an adult issue”), and the third stage may be the acknowledgment of the connection but an assertion that there is no future risk, and the victim therefore should forgive and move on. When the victim does not move on, either because they are still traumatized, the children are still uncomfortable or traumatized, or there is still a risk from the perpetrator, the victim parent is often accused of not promoting a proper relationship with the other parent, and perhaps of alienation (Hrymak & Hawkins, 2021).

Strained parent-child relationship problems are often the result of the complex interaction of many factors and vary in severity (see Faust, 2017; Johnston et al., 2005). After separation, children may resist or refuse contact with a parent, and it is important to differentiate the types of parent-child contact problems. To move forward with any intervention in cases where family violence has been verified, there must first be a resolution of the issues related to this violence. There is some agreement in the field (e.g., Bancroft & Silverman, 2002) that the following elements are necessary for children to recover from exposure to abusive behaviour:

Critical to moving forward with a relationship with an abusive parent and assessing the risk to children is assessing the abuser’s capacity and willingness to change behaviour. The following issues (see Bancroft & Silverman, 2002) should be addressed:

The list above reflects important therapeutic steps. If an abuser cannot acknowledge the impact of their behaviour on the children and make changes to their behaviour, the emotional and physical safety of the children will remain compromised. The victim parent needs to feel safe for the child to feel safe with the parent who has been the abuser. It may be that the abuser needs to participate in an abuser program to examine their attitudes and behaviours and make meaningful change in their abusive behaviour.

Abusers need to prove themselves to be a safe and reliable person to the children. There are also specialized programs which may be helpful in focusing an abuser on their role as a parent (see Crooks et al., 2006; Scott et al., 2021). However, attendance at a program like Caring Dads (2023) is only meaningful if there was evidence of active participation, accountability and demonstrated learning. Such a program could help a father who has behaved abusively make changes that should be a pre-requisite to greater parenting time.

Creating a better relationship with children requires an abuser to recognize that this commitment is a process and not a quick fix. Timelines for increased parenting should be conditional on the abuser’s acceptance and responsibility, the abuser’s progress and treatment, and critically, on the time it may take for victims and children to feel a sense of safety. It is not unusual for an abuser to have multiple challenges or co-morbid disorders beyond the abuse, including issues such as mental health problems and addictions that require their own unique intervention. The perpetrator’s willingness to proceed can be assessed by their motivation to follow through on these steps, which may be a positive sign that they would more likely follow through with developing a healthy relationship with the children.

Aside from the steps outlined above, another important consideration is the children’s readiness for contact based on their response to individual trauma-based therapy prior to any reintegration with the abusive parent. Ongoing assessment is essential to determine when the reintegration, supported by counselling, may be indicated. Any contact the child has with the abusive parent needs to be supervised initially in combination with court monitoring or child protection agency case management to assess whether the contact should continue, and if so, under what circumstances (i.e., frequency, duration, location and extended supervision).