1.0 Introduction

Legislation and practices for resolving post-separation parenting disputes in Canada have evolved greatly since the Divorce Act was enacted in 1985. Traditional gender roles have evolved as more individuals seek equality in their relationships. Fathers are more actively involved in the day-to-day care of children than in the past, while mothers have been more actively involved in the paid workforce (Raley et al., 2012). Although patterns in families and gender roles vary greatly, on average, mothers still carry a larger responsibility in parenting and household management. This difference was highlighted during the COVID-19 pandemic as mothers, who generally continue to be paid less than fathers, were more likely to give up employment and have childcare and home-schooling obligations (Petts et al., 2021).

There has been a broad trend to encourage separating parents to seek to resolve their disagreements outside of the court process, to put their differences behind them, and to focus on the best interests of their children as co-parents. The legal concepts of “custody” and “access,” with their winner and loser connotations, were abandoned in the 2021 amendments to the Divorce Act and in similar provincial legislative reforms. There is now a focus on encouraging the use of individually tailored parenting plans (Bala & Himel, 2021). At the same time, there is greater awareness in Canada of child abuse and domestic or intimate partner violence (IPV) (together these terms are referred to as “family violence”). There is widespread acknowledgement that family violence is a serious social problem that demands effective intervention by the courts. Family violence is now recognized in statutes like the Divorce Act as an important concern. Judges now have to consider the impact of family violence when determining the best interests of children in post-separation proceedings.

There is increasing research on the impact of family violence on the health and well-being of family violence victims, including children exposed to this violence. Family violence is defined broadly to go beyond physical abuse and includes multiple forms of abuse including patterns of coercive control. The extreme end of the continuum of family violence includes domestic homicides. An actual or pending separation and a prior history of IPV are the most common risk factors for domestic homicides. These cases are reflective of a broader population of parents for whom co-parenting is clearly not only inappropriate, but also potentially dangerous. There have been repeated calls for better professional training on family violence, more resources, and enhanced collaboration between the justice system and community service providers to better address abuse.

The two realities outlined above–growing support for co-parenting and growing awareness of family violence–are often on a collision course when courts and lawyers, mediators and parenting assessors are assisting parents in making post-separation parenting arrangements.

While most separating parents may be able to work out a co-parenting plan without significant court involvement, those parents with a history of family violence need different approaches to making safe and appropriate arrangements for parenting and dispute resolution. Cases involving family violence are more likely to require the protections afforded through using the court process, and the plans may need to involve supervised visits or exchanges, or even no contact with children, perhaps just for a limited period, depending on safety concerns for children as well as the non-abusive parent. While non-litigation processes like mediation may have role for some cases involving family violence, there needs to be special screening and protections if such processes are used in cases where there has been a history of family violence.

The promotion of non-adversarial co-parenting arrangements after separation and the efforts to promote child and parent safety and accountability for family violence often involve different professional groups and agencies, and result in different professional perspectives on making post-separation parenting plans. Incompatibility and a lack of dialogue across these systems create real dangers for family violence survivors. This discussion paper aims to bridge the gap between these perspectives. The paper offers a model of how to consider findings of family violence in parenting disputes, and how to appropriately match post-separation parenting arrangements to the needs of children and their caregivers. The critical role of court-related resources, training, and collaboration among professionals in the field is also addressed.

1.1 Methodology

This document is based primarily on a literature review of the areas of family violence and post-separation child-related proceedings. The family violence literature was applied to the area of child-related disputes within the context of the extensive experience of the authors from both legal and psychological perspectives. Throughout the paper, a gender-based and intersectional lens and approach is applied. A draft of this document was circulated to several leading Canadian professionals and researchers for comments. The final paper reflects the views of the authors and may not capture perspectives raised by each of the experts who were consulted.

Limitation - Lack of Indigenous families’ perspectives: Although we include references to the special challenges faced by Indigenous parents and children, this paper does not fully address these issues. None of the authors are Indigenous and we were unable to bring the needed Indigenous voices to properly address these concerns. Indigenous women are at risk for a significantly higher level of domestic violence and domestic homicide than other Canadians (Richardson et al., 2020). This level of violence needs to be considered within the history of colonization and oppression that has been documented as a form of cultural genocide (Truth and Reconciliation Commission of Canada, 2015). There are many distinct issues which need to be analyzed from an Indigenous perspective that are beyond the scope of this paper.

1.1.1 A gender-based analysis

A gender-based analysis (GBA) is used to understand issues where the impact of policies and programs differ for women, men, and gender-diverse individuals. Responses to family violence require a GBA for several reasons. Men, women, and gender diverse individuals experience violence at different rates and with different impacts. Women’s ongoing economic and social inequality are important contributors to risk of abuse and barriers to leaving their relationship. The roles that parents may play in a family are also influenced by gender. Women continue to take on more parenting responsibilities and there are often higher expectations for women in providing care for children. All these factors mean that there will inevitably be different gender impacts for men and women of changes in public policy around involvement in family court.

The Government of Canada (2023) now uses a “Gender-based Analysis Plus” to recognize that GBA is not just about differences between biological (sexes) and socio-cultural (genders). There are multiple characteristics that intersect and contribute to individuals’ identities, including race, ethnicity, religion, age, and mental or physical disability. The interaction between these factors influences the way individuals may experience family violence and government policies and programs.

1.1.2 An intersectional approach

An intersectional approach is used in this paper as a tool to help understand the complex human experience of family violence. The terms intersectional approach or analysis simply refer to an appreciation of the unique context of an individual’s life based on how they define themselves by factors such as gender, race and culture. This analysis considers how these factors may combine to impact on an individual’s safety and risk factors. This analysis can help family justice professionals break down the barriers faced by families and individual’s involved in the justice system and make it more inclusive and transparent.

People’s lives and identities are shaped by many factors in diverse and mutually influencing ways. There are systemic, social, legal and cultural issues that specifically impact diverse populations. Canada is a multicultural society; Indigenous peoples have diverse cultures, histories, languages, family traditions and dispute resolution processes. There have also been major changes in the ethnic composition of newcomers to Canada (Statistics Canada, 2018), and immigrant and racialized families may have distinct family traditions and cultural understandings of parenting that differ from those of many justice system professionals.

The intersectionality framework is helpful in plotting a unique subject–location of each individual in society in order to analyze the impact of systems and social structures on the individuals (Collins, 2015; Crenshaw, 1990). Although rooted in Black feminist thought, the intersectional approach has been used to acknowledge systemic discrimination due to various aspects of an individual’s identity and its impact on their access to justice (Collins, 2015). Intersectionality can be used as a problem-solving analytical tool, focused on solutions informed by the experiences of the diverse population (Gill, 2018).

Family violence is a complicated problem that needs a complex analysis. Intersectionality provides an understanding of inequalities within the family unit that are informed by multiple factors such as complex power-control dynamics, gender and cultural issues, immigration status, socio-economic factors, and other barriers such as language, mental health diagnosis and addiction (Etherington & Baker, 2018; Lockhart & Mitchell, 2010). The intersectional lens reminds us that it is critical to apply an equality-based analysis of family violence to effectively problem-solve (Creek & Dunn, 2011; Lockhart & Mitchell, 2010). It requires a change in attitudes and practices, in addition to legal reform and implementation (Creek & Dunn, 2011).

A concept that reflects our understanding of intersectionality is cultural safety. Cultural safety is the ability of family justice professionals to develop insightful awareness of diverse cultural dimensions and identities involved in disputes and factor in clients’ lived experiences in the dispute resolution process. Cases involving multi-cultural parties require a culturally competent family justice professional with skills to effectively communicate with clients through curious questioning, knowledge building, and an open mind. To build cultural safety in legal processes, family justice professionals have to build their cultural competence and humility which will allow them to break down the cultural barriers, offer an environment free from racism and discrimination, understand the context of colonization and systemic racism, address power imbalances and make legal processes more inclusive and transparent.

1.1.3 A trauma- and violence-informed lens

This paper also takes a trauma- and violence-informed approach to understanding the needs of survivors and appreciating their experiences in the family justice process. A trauma- and violence-informed lens requires an understanding of the life-long impacts of trauma on survivors and their children involved in parenting disputes. Trauma has a direct impact on parenting and children’s adjustment post-separation, and the presentation of victims and their children to family court and court-related professionals. These realities must be identified as, otherwise, assessments of needs and interventions by the court can become misguided (Deutsch et al., 2020; Nonomura et al., 2021b; O’Regan et al., 2021).