Executive summary

This paper is a revision of the 2005 Justice Canada publication entitled Making Appropriate Parenting Arrangements in Family Violence Cases: Applying the Literature to Identify Promising Practices(Jaffe et al., 2005). The original paper was written to assist lawyers, judges and other practitioners in dealing with the difficult issues that arise in making appropriate post-separation parenting arrangements in cases where there are family violence issues. This updated paper captures the significant changes in the field including major legislative reforms. Amendments to the Divorce Act that came into force in March 2021 include a comprehensive definition of family violence and recognize the importance of coercive control. These amendments made the federal statute more consistent with provincial and territorial laws that govern parental separation and that already recognized the importance of family violence.

The field has also changed by better recognizing diverse realities in Canada. This paper uses a gender-based intersectional framework as a lens to analyze the complex human experience of family violence, requiring consideration of such factors as gender, sex, gender expression, sexual orientation, race, ethnicity, immigration status, cultural background, life experiences, nationality, language, spiritual beliefs, disability, economic status and education. There have been changes in the composition of the Canadian population, with an increasingly large number of racialized and immigrant families, many of whom have family traditions and cultural understandings that differ from the Eurocentric traditions that have been dominant in Canada. Understanding the unique context of individuals’ lives helps family justice professionals to better understand the barriers in the justice system and make it more inclusive and transparent.

Legislation, policies and professional practices have also changed to better recognize and respond to the impact of trauma on survivors of family violence and their children. Trauma has a direct impact on parenting and children’s adjustment post-separation. Family court judges, lawyers and court-related professionals need to have trauma- and violence-informed practices to better meet the needs of parents and children.

Most parents work out their parenting responsibilities with minimal court intervention. Many lawyers, mediators, and counsellors encourage parents to work together to develop parenting arrangements that are best for their children. Even prior to the recent legislative changes, there was a trend to stop using the archaic legal terminology of “custody” and “access,” which have proprietary connotations and tend to promote a “winner” and “loser” mentality. Courts have now adopted concepts such as “parenting time” and “parenting plans” to facilitate making cooperative post-separation arrangements.

In cases where family violence has been identified, attention must be given to parenting arrangements to ensure safety for the child and the victim of the abuse. Assessing the validity and context of family violence allegations is critical for making appropriate post-separation parenting arrangements. In cases where there are ongoing family violence concerns, court involvement is usually necessary to support the safety of the victim and children. This safety may be achieved through shorter visits, supervised parenting time or the exchange of care, or even a suspension of contact between the perpetrator and their children. The responses need to take account of the potential harm that perpetrators present to the children and the other parent.

Overview of conclusions

  1. Family violence is a serious problem across Canada that impacts adult victims and children in terms of their physical and psychological well-being. Living with family violence can have lifelong effects. Women in heterosexual relationships are most at risk of this violence in terms of incidence and consequences such as living in fear, injury and death. Family violence is also a significant concern in same-sex and transgender relationships.
  2. Coercive control has become a critical concept in law, research and professional practice. Coercive control refers to a pattern of abuse over time that maintains the power of one intimate partner over another through a variety of means such as threats, intimidation, and emotional, sexual and financial abuse. Patterns of coercive control may be more difficult to recognize than physical abuse, which is more readily understood and identified. The identities of individuals in families influence the ways in which coercive control may be exerted and the opportunities for victims to seek and receive help. Coercive control can have a profound impact on both adult victims and children exposed to this behaviour.
  3. Intersectional considerations are required to determine the most appropriate parenting plan in the context of family violence. One needs to consider an individual’s life circumstances across diverse cultural contexts. Consideration of such factors as economic class and resources, immigration status, race, ethnicity and Indigeneity, religion and disability is critical. A one-size-fits-all focus on post-separation parenting is not appropriate for family violence cases. A differentiated assessment and intervention strategy are required in separation cases involving family violence. Responses to family violence cases must take into account the nature of the family violence, the timing of disclosures, and the availability of resources to promote safety, healing and accountability, as well as the intersectional contexts of victims and perpetrators.
  4. Although parental separation is often essential for the long-term protection of victims and children, separation can increase the immediate risks of serious harm or death from family violence for adult victims and children. Intervening in family violence cases requires a recognition of the harm to children in these circumstances. Children may be traumatized by direct and indirect exposure to family violence.
  5. All cases of divorce and separation need to have an initial screening for family violence by family justice professionals, as well as ongoing assessment of evolving family violence issues. Where there are family violence concerns, it is important that courts and professionals identify the risks for ongoing abuse and assess power imbalances, including the safety of abuse victims in any negotiation process. Professionals must not pressure victims into a dispute resolution process and settlements that may place them at further risk of harm.
  6. Specific considerations for decision-making about post-separation parenting when there are findings of family violence include the following:
    1. The parenting of the abusive parent needs to be addressed. There may be an ongoing impact of a parent who has perpetrated family violence on the victim and children, even after separation and a cessation of any acts of abuse. Ongoing use of coercive control must be recognized and considered in post-separation parenting arrangements.
    2. Findings of family violence are critical to understanding the parenting decisions of the victim parent. Family violence can impact the parenting confidence and autonomy of the victim parent for many years after separation. In situations where there are ongoing or serious family violence concerns, there should be a presumption that parental decision-making responsibility will be given to the victimized parent.
    3. Findings of family violence are usually a contra-indication of a co-parenting arrangement after separation. Co-parenting cannot take place in the context of continuing fear and trauma from a history of family violence.
    4. Supervised exchanges or supervised parenting time may be essential for adult and child victim safety. Such safety measures should continue when there is an ongoing risk of family violence and coercive control. Ending these arrangements should be conditional on ending patterns of abuse or control towards the victim parent.
  7. Significant caution should be used when assessing claims of parental alienation when made against parents who may be victims of family violence. Parents who raise concerns about family violence may be seen as making false or exaggerated claims of abuse to further their desire to not share their children. There are legitimate issues related to proof of claims of family violence, but denial and minimization of abuse by genuine abusers is more common than false or exaggerated claims of intimate partner abuse by alleged victims. There is a need for proper assessment, and investigation into all reports of family violence is essential to ensure that appropriate parenting arrangements are made.
  8. Family courts may fail to recognize or misinterpret survivors’ ways of responding to violence and the influence of systemic and structural violence on families, including the influence of violence on decisions that parents make in caring for their children and in acting to protect them from family violence. The use of family violence experts, assessment tools, and trauma-informed practices are essential for navigating these complex systems and should be relied on by family courts and practitioners.
  9. Raising concerns about family violence can be misused against a victim parent as evidence of poor parenting capacity or unwillingness to engage in “friendly” parenting. Significant caution should be used in making negative inferences about a parent as a result of alleging family violence by the other parent, communicating fear for the children as a result of family violence, or taking measures to protect the child from an abusive parent. Seeking help for family violence may well increase a victim’s financial and emotional costs in the court process, but may be essential to protect their children. Lawyers, judges and family justice professionals need to be aware that abusers may misuse the court process to continue patterns of coercive control in their intimate relationship in court proceedings. In some cases, this behaviour may be tantamount to litigation abuse and an attempt to exhaust the victim, financially and emotionally.
  10. Findings of family violence should lead to a differentiated approach to parenting arrangements depending on the severity and history of family violence and coercive control, the timing of the disclosures (e.g., temporary versus more stable plan) and the resources available to address safety for the adult victim and children. These arrangements may vary according to the potential need for restrictive parenting time. These arrangements may include co-parenting, parallel parenting, supervised exchanges, supervised parenting, or no parenting time.

There is no doubt that there is a heightened focus on family violence issues in family courts across Canada. There are ongoing efforts by many, including governments, law societies, professional organizations, and the National Judicial Institute to ensure educational opportunities for lawyers and judges to increase awareness and understanding of family violence and the legislative reforms aimed to address it. Similar professional education programs are being offered for other family justice professionals including mediators, assessors, and mental health professionals. There are also ongoing efforts to educate members of the public, in particular victims and perpetrators of family violence, and to improve access to services. The focus on family violence will have to be matched by growing resources needed to provide legal, social and mental health services to support family members as well as ongoing research to better guide family justice professionals on the best interventions and parenting plans for these challenging circumstances.

A guide to the report

This report is divided into six sections. The first section introduces some key concepts related to the analysis in the report, including intersectionality and the importance and limitations of a gender-based analysis. The next section provides an overview of the literature on family violence, followed by a third section discussing post-separation parenting arrangements in cases involving family violence. In the fourth section, the reader is provided with a model for assessment and intervention strategies in cases of family violence and child-related parenting disputes. In the fifth section, a differentiated model for best practice is outlined in the text, together with a summary diagram to illustrate the host of factors to consider in matching parenting arrangements to families in which violence is a factor. The concluding section outlines the implications of adoption of this model for policy, legislation and practice in the family court and court-related services.