4.0 The need for a paradigm shift for family violence cases

4.1 The challenge for victims

It is often very challenging for victims of family violence to leave an abusive relationship, try to understand or their situation, seek assistance, and develop an appropriate plan for post-separation care of their children. When trying to describe their situation to an independent third party, such as a police officer, parenting assessor, judge, or even their own lawyer, intense emotions and trauma may inhibit communications. Family justice professionals sometimes have an expectation that parents who have been victims of family violence will put these experiences in the past and be able to “move on,” focusing on the future (Jaffe, 2014). Parents may be instructed or expected to facilitate contact, convince reluctant children to consistently comply with orders or agreements for parenting time with the other parent, and speak positively about the other parent, even if there has been abuse. This expectation is often unrealistic and, in some cases, can result in situations where a parent who has experienced family violence may be terrified at the prospect of having to cooperate with a violent parent, despite their ongoing (and often realistic) fears (Sheehy & Boyd, 2020).

In the absence of any change by the perpetrator, or even an acknowledgment of past abuse that might allow a victim to gradually rebuild trust in the perpetrating parent, it may be traumatizing for a victim to support their child’s relationship with the other parent. When the perpetrator continues to deny or minimize abuse, disregard court orders, commence repeated proceedings or excessively delay resolution, it may be harmful to expect a victimized parent to “get over it,” and “move on”. Adding to this challenge, the victimized parent (most often mothers) generally has fewer financial resources and less ability to litigate and seek protection in the family courts.

4.2 Resolution of parenting issues

The resolution of disagreements about post-separation arrangements for children may take several different pathways. Many parents can safely develop amicable co-parenting arrangements without court intervention on their own or through counsellors, collaborative lawyers, or mediators. As many as a quarter of separating parents, however, may require court intervention, sometimes involving assessments by mental health professionals of the interests of the children, the nature of the potential conflict, and the potential existence of IPV (Jaffe et al, 2008).

Court intervention is especially likely to be needed if there are family violence concerns. There are, however, also some cases involving family violence that may not require court intervention. In some cases, the abuser may leave the jurisdiction or may move on to other relationships, showing no real interest in maintaining an ongoing relationship with their former partner or children. In other cases, an IPV victim may flee for her safety and the perpetrator takes no action to pursue her and their children. Some abuse victims may avoid any engagement with their perpetrator over financial issues by abandoning their legal claims (i.e., living in poverty is seen as preferable to living with ongoing violence and harassment; Cross, 2016).

In most cases where there has been family violence, it will be important for victims to have enforceable orders made by a family court, which requires proof that there has been violence. When there has been police and criminal justice system involvement, there may be ample evidence of a pattern of IPV or child abuse. With the growing awareness of family violence concerns, the criminal and family courts may temporarily suspend or terminate parenting time between the abuser and his children in these cases. Many victims, however, especially from immigrant, racialized and Indigenous communities, are reluctant to involve the police as they do not trust them. Victims may also be reluctant to involve police as they are concerned about the economic consequences for themselves and their children of criminal court involvement and fear the loss of control that results from the involvement of state agencies in their lives. In some cases, victims have had prior poor experiences with insensitivity of the police, which also affects their willingness to report their abuse (Saxton et al., 2021).

The cases that pose the most significant challenges to legal and mental health professionals in the family court system are ones in which the parties present diametrically opposed descriptions of their relationship, post-separation events and abuse issues, and there is a lack of independent evidence, for example, from the police or child protection services. All court-related professionals are to some extent involved in the formal or informal exercises in receiving, reviewing and weighing relevant information about the parents and children in a case. To understand the context for this process, it is important to be cognizant of the current climate in family courts in North America (Cross, 2016; Jeffries, 2016; McDonald, 2016). Family court judges generally encourage parents to resolve their disagreements in a cost-efficient manner without a trial, whether by mediation, negotiation or judicially facilitated settlement meetings.

Judges and lawyers often encourage parents to co-operate with each other, suggesting that this is synonymous with the promotion of their children’s best interests. It is true that in cases in which family violence is not at issue, children generally benefit from having their parents resolve their differences in a co-operative and non-adversarial fashion. Common wisdom in the field as well as legislation guiding judges, lawyers and parents in separation and divorce proceedings focuses on the role of the “friendly parent.” This is reflected in provisions like s.16(3)(c) of Canada’s Divorce Act, which states that a factor that a court shall consider in deciding on a parenting arrangement that promotes the child’s best interests, is each spouse’s “willingness to support the development and maintenance of the child’s relationship with the other spouse.” Unfortunately, the use of the “friendly parent” concept can be harmful in cases where the lack of “friendliness” is a result of abusive or violent behaviour (Cross, 2016; Sheehy & Boyd, 2020).

Family violence allegations raised in the context of parental separation are often met with skepticism and a concern that the allegations are being made to limit the involvement of the other parent, especially if there has not been significant police and criminal justice system involvement.

Raising abuse allegations in family court without prior criminal justice involvement can be a double-edged sword for abuse victims. If the allegations are proven on the civil standard of proof, the balance of probabilities, the victim and her children may find a degree of safety, with recent legal reforms and improvements in community resources providing a greater degree of safety than in the past. However, if the allegations appear unfounded and are considered by the judge to have been made maliciously or manipulatively, the abuse victim may lose parenting time or decision-making responsibility. In some of these cases, mothers are accused of willful alienation of the children against their father. Trying to differentiate between abuse and alienation claims is a major challenge for family justice professionals and the family courts (Fidler & Bala, 2020; Neilson, 2018). Children may be resisting contact with one parent for a variety of reasons including some where children are justified because of what they experienced or witnessed at the hands of an abusive parent. A thorough assessment of abuse allegations is warranted as part of a family court decision-making process, given the high stakes of a finding of family violence, but the burden is on parties to introduce evidence for the court.

4.3 Best interests of the child and the primacy of child safety

At one time in Canadian history, the courts followed the “tender years doctrine,” a presumption that children, especially younger children, would be in the custody of their mothers in the event of parental separation. The 1985 Divorce Act made clear that decisions about what was then called custody and access would be based on an individualized determination of the “best interests” of the child, without presumptions based on the gender of the parents. However, the 1985 Act also included s.16(10), providing that in making orders “the court shall give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child.” This provision had the title “Maximum Contact,” and in the 1990s, in Young v Young ([1993] 4 SCR 3) and Gordon v Goertz ([1996] 2 SCR 27), the Supreme Court of Canada cited this provision as establishing the “maximum contact principle.” The maximum contact principle was often cited as the basis of an argument by one parent, usually the father, that there should be equal time after separation.

The words “Maximum Contact” or “Maximum Parenting Time” do not appear in the reformed Divorce Act. The 2021 amendments clearly give primacy to child safety and well-being as a factor in making parenting decisions. The Act presently provides:

Primary consideration

16(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

16(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including


(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;


Parenting time consistent with the best interests of child

16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

In determining the best interests of a child, s.16(6) of the Divorce Act now provides that the courts will give effect to the principle that each child should have as much time with each spouse as is consistent with the best interests of the child. In determining the best interests of a child when making a parenting order, the court must also consider the ability and willingness of each parent to communicate and cooperate with one another on matters affecting the child under the Divorce Act s.16(3)(i); this provision may support making a co-parenting order, though it is clearly limited by the primary safety consideration of s.16(2) of the Divorce Act (Martinson & Jackson, 2017; Bala, 2022).

The decision of the Supreme Court of Canada in Barendregt v. Grebliunas (2022 SCC 22) reconsidered the “maximum contact principle” in light of the 2021 amendments. In Barendregt, the Supreme Court emphasized the importance of family violence as a factor in parenting cases, and in particular as a basis for not having a joint decision-making or co-parenting regime. Justice Karakatsanis wrote (emphasis of the Court):

133 What is known as the maximum contact principle has traditionally emphasized that children shall have as much contact with each parent as is consistent with their best interests. A corollary to this is sometimes referred to as the “friendly parent rule”, which instructs courts to consider the willingness of a parent to foster and support the child’s relationship with the other parent, where appropriate…

134 Although [the Supreme Court in] Gordon placed emphasis on the “maximum contact principle”, it was clear that the best interests of the child are the sole consideration in relocation cases… some courts have interpreted what is known as the “maximum contact principle” as effectively creating a presumption in favour of shared parenting arrangements, equal parenting time, or regular access…..

135 These interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor.”

The decision in Barendregt and the words of s. 16(6) of the Divorce Act permit arguments that it is in the best interests of children involved in a specific case to have as much parenting time as possible with each of their parents, which may or may not involve an allocation of roughly equal time for each parent. The statute and decision, however, make clear that where concerns about family violence or ongoing conflict are raised, they must be taken seriously, and that there is no presumption of equal parenting time (Bala, 2022).

4.4 Family violence and the family court process

It is important that family justice professionals not adopt a “one size fits all” approach to making parenting plans, and in particular, they should avoid pressuring parents who are victims of abuse to settle their differences and adopt a co-parenting plan. A better approach requires differential responses. An analogy that can be used is a busy highway at rush hour when everyone is going in the same direction at top speed. Getting to an off-ramp can be difficult. Figure 2 tries to capture this reality using the analogy of a highway leading to co-parenting in which family violence cases need an off-ramp to avoid being carried along with the traffic. It is a simple schematic diagram portraying an often complex reality.

Figure 2: Differentiated interventions in family violence cases

Figure 2: Differentiated interventions in family violence cases
Figure 2: Differentiated interventions in family violence cases – Text version

Figure 2 depicts the Differentiated Interventions in Family Violence Cases, which is an image of a road with two exit lanes that branch off on the right and an arrow pointing upwards on the road ahead. At the top of the image the arrow points to “Normal conflict”, with four bullet points beside it in: (1) “Education program”, (2) “Mediation services”, (3) “Collaborative law”, and (4) “Co-parenting plans”. The top right exit leads to the words “High conflict” with “No violence” underneath it in a bracket. The five bullet points for this exit include (1) “Parenting evaluations, parent coordination”, (2) “Therapeutic programs to reduce conflict”, (3) “Judicial case management”, (4) “Arbitration”, and (5) “Parallel parenting”. The bottom right exit lane leads to “family violence”, and its accompanied eight bullet points include (1) “Protection orders / restraining orders”, (2) “Risk assessment and Safety planning”, (3) “Batterer intervention program, victim service/ counselling”, (4) “Counselling for children exposed to violence”, (5) “Specialized parenting evaluators”, (6) “Case management”, (7) “Primary parent plan for decision-making”, and (8) “Supervised parenting program”.

There are recently developed resources which may assist family lawyers, judges and court-connected professionals to make parenting plans with an awareness of the risks of family violence. A toolkit for lawyers and legal advisers to address these complex issues is available from Justice Canada (see Justice Canada, 2021).

The Barbra Schlifer Commemorative Clinic in Toronto has a comprehensive list of risk factors to recognize the needs of Indigenous women and diverse communities in family court (see Barbra Schlifer Commemorative Clinic, 2020). The American Anti-Violence Project (2017) has a family violence toolkit that assists in assessment for LGBTQ2+ families.

There remains considerable variability in different professionals’ comfort, skills, and knowledge in using these tools. One important distinction is understanding the difference between screening and assessment. Professionals who do screening recognize that the case they are involved with deals with domestic violence concerns, as well as potential risk factors. Assessment goes beyond screening and provides a more detailed analysis of the risks and the impact on victims, children, and abusers, as well as considerations for parenting plans (see Cross et al., 2018).

4.5 Parenting plans and family violence

Parenting plans deal with such issues as the parenting time schedule, the allocation or sharing of decision-making responsibilities, and communication between parents. Parenting plans are often made voluntarily, with many parents wanting the flexibility to vary their plans as circumstances change, and not expecting courts to enforce their plans. When there are family violence concerns, however, it becomes more important to have the courts involved in making parenting plans, to resolve disputes and to provide for enforcement to protect victims and their children. In cases where there are family violence concerns, these plans should not provide for shared decision-making, and may have provisions for safe locations for exchanges of care or supervision of parenting time.

The number of separating parents who enter some form of co-parenting plan has been steadily increasing (Bala et al., 2017), with over half of divorced or separated parents who responded to a Canada-wide survey in 2017 reporting that they had “shared custody” of their children (Statistics Canada, 2021), with roughly equal parenting time and joint decision-making. Most of these cases are a result of situations in which this arrangement was made through a process of informal discussions, lawyer-led negotiations, or mediation, with only a relatively small number having been imposed by a court. There are very useful guides for parents and court-related professionals on parenting arrangements that may be most suitable for different families depending on children’s ages and unique circumstances (Bala & Himel, 2021; Justice Canada, 2021). In cases with ongoing family violence concerns, co-parenting and shared decision-making will most likely be inappropriate (if not dangerous).

Responding to child-related disputes in cases with histories of family violence is a complex undertaking. In dealing with abusive parents, there may be a varying range of responses over time that depend on access to appropriate services and documented changes in the abuser’s behaviour. Within the family court system, judges consider a range of options in dealing with a perpetrator of family violence. These options may include: no contact; supervised parenting; supervised exchanges; exchanges in a public place; parallel parenting; or a co-parenting plan. Therapeutic interventions or supports may be considered to facilitate successful planning and implementation of these parenting plans.

Figure 3 identifies the additional factors for consideration for cases where either party has made allegations of violence. The first layer of the pyramid identifies the principal factors for making a parenting plan in a typical case, including understanding the children’s individual needs, the parents’ skills, the ability of the parents to cooperate, and the developmental considerations regarding any parenting arrangements. In a high-conflict case, these initial domains are still pertinent. However, the second layer of the pyramid identifies additional concerns, such as the history of the parental conflict, children’s coping strategies, and the identification of the less toxic parent. In cases involving family violence, the challenges of making an appropriate plan are significantly increased, as it is also necessary to consider such issues as: the risk of recurrence or escalation of violence and an understanding of the impact of violence on the adult victim and the children.

Figure 3: Parenting plans: Issues in family violence cases

Figure 3: Parenting plans: Issues in family violence cases
Figure 3: Parenting plans: Issues in family violence cases – Text version

Figure 3 depicts the Parenting Plans Issues in Family Violence Cases, which is displayed in the form of a pyramid. The Pyramid has five levels under three categories, each level has further division with notes in each. The lowest and widest level in grey has the label “normal conflict” in the center, with two divisions (1) Children’s needs and (2) Parent’s ability to cooperate and promote relationship arranged vertically to the left; and two divisions (1) parent’s skills and (2) Developmentally appropriate parenting plan and contact schedule arranged vertically to the right. The second level in yellow has the label “high conflict” in the center, with two divisions (1) Children’s coping strategies and (2) history/source of conflict arranged vertically to the left; and two divisions (1) factors that promote ongoing conflicts and (2) identification of less toxic parent arranged vertically to the right. The top three levels all fall under the label of “Family violence” and are depicted in orange. The top level has the phrase “family violence” displayed prominently with the phrase “assess for risk of homicide” underneath in small fonts. The second highest level has the phrase “Understanding the impact of violence on victims and childrens exposed” written in it. The third highest level has two sections, the one to the left says “assessment of history of all forms of family violence and coercive control” and the one to the right says “documentation of coping strategies and previous interventions.”

4.6 Family violence allegations: Role of court-appointed assessors

Most parenting disputes settle through negotiations between parents, their lawyers, or a mediator. Often, a settlement is appropriate, but some may happen for the wrong reasons (e.g., fear, threats intimidation). When cases do not settle and go to court, the ultimate decision about what happens rests with a judge who hears the evidence, determines the validity of competing claims and decides what arrangement is in the child’s best interests. Judges and lawyers often give significant weight to the assessment report of an independent court-appointed mental health professional regarding parenting arrangements. These assessors may be social workers, psychologists or psychiatrists.

Assessments or parenting evaluations are based on interviews with the parents and children and observations of the parents with the children, as well as collateral information from community professionals and possibly psychological testing (Bala et al., 2017). In some jurisdictions in Canada, the family courts may have access to government-funded assessments, such as through the Office of the Children’s Lawyer in Ontario. Private, more comprehensive assessments are only available if parents have the resources to pay for them. Parenting evaluations are expensive and often not available due to a lack of government funding and parental resources. (Ackerman et al., 2021). However, when available, the recommendation of an assessor often results in a settlement, either because the parents consider it a helpful, well-informed approach to the formation of a parenting plan, or parents don’t think they would be successful in challenging the recommendations in court. If a case goes to trial, the recommendations of an independent assessor often have significant weight, though they are certainly not binding and may be challenged, especially if the assessor has ignored important facts or is not properly informed by current social science knowledge.

There is a concern about the extent to which parenting assessments sometimes fail to properly consider family violence issues (Stark et al., 2019). Incidents of abuse that may, in isolation, seem less severe, may give rise to greater concerns if they fit within a larger pattern of abuse and domination or coercive control. Structured screening and tools dealing with family violence are critical in these cases. There are now detailed guidelines available on standards for parenting assessments (Association of Family and Conciliation Courts [AFCC], 2022), as well as specific standards for cases involving family violence (also see AFCC, 2022). These standards require specialized training on family violence for a professional to undertake an assessment in a case involving allegations of family violence. When appointing or retaining an assessor for a case that involves family violence, judges and lawyers should consider whether the professional has developed experience in this area. Assessors must be aware of indicators of dangerousness and lethality.

4.7 Barriers and challenges to making appropriate parenting plans

Before taking a closer look at the approach that is required to properly balance the growing emphasis on post-separation co-parenting with family violence issues, the current family court context deserves closer attention. There are several systemic barriers that have an impact on the reporting and response to family violence: the involvement of multiple systems (i.e., family court, child protection services and criminal proceedings); the increasing number of unrepresented litigants; concerns about unfounded allegations of parental alienation; insufficient attention to children’s views; challenges to credibility of parents’ reports; and the gap between theory and practice.

4.7.1 Multiple systems and concurrent proceedings

Family violence cases can come into the legal process through the criminal justice or child protection process, as well as in family proceedings. The role and responsibilities of different parts of the justice system in dealing with children in the context of family violence are confusing for many professionals, and even more so for parents (Birnbaum & Bala, 2022).

There is a need for enhanced efforts to coordinate services, share information and develop expertise in all parts of the multiple systems potentially involved in family violence cases (Martinson & Jackson, 2012). For example, Neilson et al. (2022) reports on a study of concurrent family and criminal proceedings which revealed that family court files contained no information from the criminal process in 20% of cases. The lack of coordination and communication between different courts, agencies and professionals can exacerbate harms for victims and their children. This highlights the necessity of holistic supports for victims (George et al., 2022).

Responsibility for investigation of cases reported to the police rests with that agency, while the Crown Prosecutor is responsible for deciding whether to proceed with charges, presenting evidence, and making submissions about appropriate bail terms and sentences. The process of bail hearings, preliminary hearings and trial may take many months to resolve. However, the victim of family violence and the children, whether or not direct victims, may need an immediate safety plan that either suspends contact with the perpetrator or supervises parenting time with the children or exchanges between the parents. The challenge for the criminal justice system and community services is how to manage such a plan while respecting the presumption of innocence.

In family court, each party is responsible for marshalling evidence and proving its case. In the absence of corroborating evidence from independent witnesses like assessors, child protection workers, doctors or police officers, there may be a degree of skepticism about abuse allegations in family court. There is generally an emphasis in the family court on promotion of settlements, and allegations of family violence are sometimes improperly discouraged or dismissed. Some victims may find themselves in limbo between the criminal court and family court. It may be difficult to resolve a family court case while the criminal case is ongoing. Developments in the family case (for example, an agreement regarding supervised parenting time) may require steps in the criminal case (a bail variation request).

The agencies providing CPS may also be skeptical or reluctant to be drawn into cases where there are allegations of family violence and there is already a high-conflict legal dispute between separating parents (Birnbaum & Bala, 2022). The CPS worker must decide whether a particular case meets the agency’s protection mandate, or whether the child’s interests can be adequately protected in the family court process. In some cases, CPS may decide that the primary victim of family violence may be unwilling or unable to protect the children, and may decide to apprehend the children. Abuse victims can be resistant to accessing CPS for this very reason (Jaffe et al., 2014).

CPS workers also express concern at being used by one parent against the other in parenting disputes (Birnbaum & Bala, 2022; Jaffe, Scott, et al., 2014). Hence, they may be hesitant to enter situations where there are family court proceedings. In some jurisdictions, CPS have been improving their ability to deal with family violence concerns by including domestic violence experts in their agencies and doing a better job of providing evidence for use in family court proceedings (Birnbaum & Bala, 2022; Olszowy et al., 2020).

A promising practice in Canada that illustrates a possible response to address the complexity of these cases is the establishment of interdisciplinary committees trying to promote safety and accountability in the family court when there are parenting disputes involving family violence (Pang, 2021). Another development has been the establishment of a pilot Integrated Domestic Violence Court in Toronto that deals with both family and criminal proceedings involving families where there is family violence (Birnbaum et al., 2014; Birnbaum et al., 2017).

4.7.2 Self-represented litigants

A further complication in the resolution of high-conflict cases and cases involving family violence is the increasing number of self-represented litigants, who may not be aware of the available legal remedies and community services (Birnbaum & Bala, 2012; Macfarlane & Sullivan, 2021; Wangmann et al., 2020). If a victim of family violence does not have counsel, they may well be easily intimidated into accepting a settlement that is unfair and does not provide adequate protection to themselves or their children (Kaye et al, 2021). Legal aid plans in Canada now give some priority to offering low-income victims of alleged IPV access to some legal services (although not necessarily full representation), but this only helps victims with low incomes. As thresholds for legal aid eligibility are low, many women (who are often the victims) are not eligible despite having limited resources.

Competent family lawyers provide an important buffer between antagonistic parents, and can facilitate communication between the parents and with the judge, as well as seeking legal protections for victims of family violence. It is, however, not uncommon for one or both parties in a high-conflict case involving allegations of family violence to be unrepresented (Macfarlane & Sullivan, 2021; Wangmann et al., 2020). Some abusive men have difficulty in accepting advice from lawyers and may prefer not to have a lawyer so that they can have an opportunity to directly confront their former partners, including through cross-examining them. Cases involving one or both parties as self-represented litigants are more emotionally charged and more challenging for judges, and often result in the court having to make a decision with less information than might be available if the parties had lawyers.

4.7.3 Children’s perspectives and preferences

In making post-separation plans for children, judges, lawyers, assessors and parents generally give significant weight to the perspectives and preferences of children, especially those who are close to or have reached adolescence. Indeed, children’s views and preferences are specifically identified as a factor for consideration of in the making of best interests’ decisions in the Divorce Act s. 16(3)(e). Recognition of the importance of hearing from children when decisions are being made about their futures is reinforced by the Convention on the Rights of the Child (Martinson & Raven, 2021a, 2021b; United Nations, 1989). However, ascertaining children’s views and preferences in cases involving family violence can be challenging for various reasons, including: intimidation of children by the abusive parent to express favourable views about that parent; children may view the victim parent to be weak and may wish to align themselves with the “stronger” abusive parent; and the denigration of one parent by an abuser may influence a child’s relationship with a victim of abuse. On the other hand, a victim of family violence who is accused of alienation may find that her children’s voices are dismissed as simply an echo of her voice and not as independent views of the children.

While a child’s views should always be considered, a child’s stated desire to live with an abusive parent should have less weight in cases where there has been family violence than in other contexts (McDonald, 2016). The child’s purported reasons for wanting to live with a parent who has perpetrated family violence may shed important insight into underlying dynamics of one parent undermining another or exposing the children to inappropriate information.

In cases where there has been a history of family violence, the victim and children may have continuing fears of the abusive partner, even if there appears to be no immediate threat of further violence. If children express negative attitudes towards a parent based on a prior history of abuse, this factor should be given very significant weight in making any parenting arrangements.

In all high-conflict cases, whether or not there are family violence issues, parents should be strongly discouraged from directly asking their children about their preferences for living arrangements or visitation, as children may feel intense loyalty conflicts, guilt or fear in expressing their preferences to their parents. In high-conflict cases, the interviewing of a child about preferences should be done by an appropriately trained independent mental health professional or by a lawyer appointed for the child. The professional must ultimately ensure that the child’s views are shared with the parents and the court in a sensitive, contextual fashion, emphasizing to parents that they should avoid recriminations for views that children have expressed. There may also be a role for judges meeting with children to help give the court an understanding of the child’s perspectives and context, though judges should have appropriate education about family violence so that they properly appreciate how children are affected by family violence (Bala et al., 2013).

4.7.4 Parental alienation and domestic violence allegations

Alienating parental behaviour can be defined as “an ongoing pattern of observable negative attitudes, beliefs, and behaviours of one parent that denigrate, demean, vilify, malign, ridicule, or dismiss the child’s other parent” (Johnston & Sullivan, 2020). However, the term “parental alienation” is now often misused by parents and professionals in cases where children are resisting contact with a parent, or one parent is seen as not sufficiently supportive of parenting time with the other parent. Actual alienation only occurs if a parent is manipulating or influencing a child to reject the other parent. The term should not be used to characterize situations where a child is resisting contact because of their own experiences with the parent, or a child just wants to spend less time with a parent due to changing developmental needs or a desire to be more engaged in extra-curricular or peer activities. When there is a history of family violence or other reasons why children may be anxious about contact with a parent, the protective actions of a parent should not be characterized as “alienation.”

In high-conflict cases, it is not uncommon for one or both parents to make hostile and derogatory comments about the other to the children and to attempt to draw the children into their disputes. The longer that parental conflict persists, the more likely that children are to respond to stress and pressure by siding with one parent. In some cases, a child will align with a parent who is an abuser but may be seen by the child as the more powerful parent. This may result in a child being alienated from the parent who has been the victim of IPV.

“Alienation” is accepted as a serious problem by Canadian courts. However, the term has become highly charged due to its misuse and claims by some mental health professionals that it is a clinical diagnosis. Over the past 25 years, alienation has become a common accusation made against victims of domestic violence by abusive partners (Lapierre et al, 2020; Sheehy & Boyd, 2020). Often, if one parent raises concerns about domestic violence or child abuse, the other parent alleges these are lies or exaggerated, and that parent claims that the allegations are unfounded and part of a strategy to alienate the children. Where there has been a clinical finding or a court finding of domestic violence, the term alienation is clearly not appropriate to describe a child’s resistance to have contact with an abusive parent, and “realistic estrangement,” or “justified rejection” are appropriate. A major challenge of these cases is that there are no reliable tests or measures that distinguish between children who are alienated, as opposed to children who were abused or exposed to violence or other destructive parental behaviours that may cause resistance to contact (Saini et al., 2016).

Simply applying the label “alienation” to cases where children are resistant to spending time with one parent ignores the many factors that may be connected to children’s resistance to visits with one parent, and the complex interactions of children’s unique needs, the parents’ abilities, and the impact of litigation (Fidler & Bala, 2020). These factors may include: the child’s age, temperament, and special needs; sibling relationships; the parenting style and capacity of each parent; and the level and nature of contact with extended family. The premature use of alienation as a label for a case denies the complex reality of many parenting disputes. Many professionals and authors commonly use wider and more descriptive terms, such as “parent-child contact problems” or “child resistance or refusal to visitation.”

When children do reject one parent, it is necessary to consider the role that both parents are playing in the lives of their children, and the specific circumstances of the child. In some cases, a child will become aligned with the more caring and effective parent and reject the other as a way of resolving conflicting feelings of loyalty. If an assessment or judicial determination finds that rejection is tied to the rejected parent’s history of violence and continued attempts to monitor and harass the children and primary caregiver, then interventions to create safety for the children and caregiver are much more important than interventions to address the perceived “alienation.” More fulsome discussions about alienation can be found elsewhere (see Fidler & Bala, 2020). Our focus in this paper is 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).

Allegations of alienation may silence women and children and deter them from presenting evidence of family violence and of abusive parenting (Meier, 2020). These allegations may discount the perspectives of children and fail to protect children from parental abuse. The allegations may lead to a single reductionist view of why a child resists contact, rather than an objective, nuanced look at the resisted parent’s contribution to the problem.

It must, however, also be appreciated that there are cases where allegations of family violence are exaggerated or totally unfounded. For example, there are cases where parents may question their children in highly suggestive ways about possible abuse perpetrated by the other parent that results in unfounded reports of child abuse (Birnbaum & Bala, 2022). Further complicating the situation, some unfounded reports of child abuse have been honestly made by mothers who have themselves clearly been victims of violence or abuse but misunderstood or influenced their children’s statements. Cases of unfounded allegations of family violence represent the minority of all cases and family violence that is experienced but never reported remains a significant problem (Trocmé & Bala, 2005).

4.8 From legislative reform to action

With the amended Divorce Act and the Supreme Court of Canada recognizing that multiple forms of family violence are important factors for the courts to consider in making parenting arrangements in the best interests of Canadian children, the family justice field is entering a new era. The legislative change is one step in a longer process that will include enhanced training programs for professionals involved with the family court and a review of the impact in practice and court decision-making. Business as usual is not an option. Part of the change to come has been highlighted in the literature discussed in this section that speaks to the need for a differentiated assessment and interventions in these cases. There remains a wide range of considerations to meet the needs of very heterogeneous families, including cultural, racial and gender diversity and the impact of the parents’ lack of access to justice services and appropriate resources on a timely basis.