If you are afraid of your partner, or your children are, your safety comes before anything in this article. If there is immediate danger, call 911. Peel Regional Police respond across Brampton, and a call does not commit you to any particular outcome in family court. Reading about the law can wait until you are somewhere safe, and if your phone or computer may be monitored, consider using a device your partner cannot access.
For parents who are past that first moment, one question tends to dominate: what will this mean for the children? People are often told, wrongly, that violence between adults has no bearing on parenting, or that raising it will make them look vindictive. Ontario law says otherwise. Courts must consider family violence when making parenting orders, and the statutes tell judges specifically how to think about it.
What follows is general information, not legal advice about your situation. These cases depend heavily on their facts, and they often overlap with criminal and child protection proceedings.
Two statutes, one approach
Which law applies depends on the parents’ relationship. Married parents who are divorcing are generally dealt with under the federal Divorce Act. Parents who were never married, or married parents who are not seeking a divorce, generally fall under Ontario’s Children’s Law Reform Act. The relevant provisions are close to identical: section 16 of the Divorce Act and section 24 of the Children’s Law Reform Act.
Under both, the only test is the child’s best interests, and judges must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Family violence is one of the listed best-interests factors. That combination matters. A parent’s rights do not enter the analysis as a competing interest in the way many people assume, and an order that exposes a child to harm cannot be justified by the principle of maximum time.
The statutes do say that a child should have as much time with each parent as is consistent with the child’s best interests. That qualifying phrase is doing a great deal of work here. There is no entitlement to any particular amount of time, and no presumption of equal time.
What the law counts as family violence
The definition surprises many people, including some who have lived through it and never considered it “real” violence because nobody ended up in hospital.
Family violence means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other person to fear for their own safety or for that of someone else. It does not have to be a crime. In a child’s case, it includes direct or indirect exposure to that conduct.
The statutes give examples, and the list is worth reading slowly:
- Physical abuse, including forced confinement, though not reasonable use of force to protect oneself or someone else
- Sexual abuse
- Threats to kill or cause bodily harm
- Harassment, including stalking
- Failure to provide the necessaries of life
- Psychological abuse
- Financial abuse
- Threats to kill or harm an animal or damage property, and killing or harming an animal or damaging property
Coercive control deserves particular attention because a single incident may not capture it. Consider a hypothetical: a parent takes the other parent’s bank card, tracks their phone, decides who they may see, and warns that they will “lose the kids” if they ever complain. Nobody has been struck. A judge can still treat that pattern as family violence, and may see it as highly significant to how the two parents could realistically share decisions after separation.
How judges assess it
Once family violence is in play, the court is required to take into account a specific list of considerations. Paraphrased, these are:
- How serious and how frequent the violence was, and when it occurred
- Whether there is a pattern of coercive and controlling behaviour
- Whether it was directed at the child, or whether the child was directly or indirectly exposed to it
- The physical, emotional and psychological harm or risk of harm to the child
- Any compromise to the safety of the child or another family member
- Whether it causes the child or another family member to fear for their safety
- Any steps the person has taken to prevent further violence and improve their ability to care for the child
- Any other relevant factor
Two points flow from this list. First, a child does not have to have been hit, or even to have been in the room, for the violence to matter. Second, the penultimate factor gives a parent who has genuinely changed a way to show that. Counselling alone is not a magic answer, but real, sustained steps can be relevant to what a court decides, particularly over time.
The court also looks at how the violence affects the ability of the person who used it to care for the child, and whether an order requiring the parents to cooperate is appropriate at all. Joint decision-making depends on two people being able to talk as equals. Where one person dominates or frightens the other, that premise can collapse, and a court may instead give decision-making responsibility to one parent or set up a parallel arrangement.
Proving what happened without a police file
Plenty of family violence is never reported. Lack of a police report or a criminal conviction does not stop a family court from making findings, because the civil standard applies: whether something is more likely than not. A criminal acquittal or withdrawn charge does not automatically dispose of the issue in family court either, although each case turns on its own evidence.
Your sworn affidavit is usually the core of the evidence. Write it with detail and dates where you have them. “He was abusive for years” gives a judge very little. “On a Tuesday night in early spring, after I said I wanted to see my sister, he took my car keys and stood in front of the door for an hour while our son watched from the stairs” gives a judge something to weigh. If you only remember the season, say so; approximate honesty is better than false precision.
Other material that can help, depending on the case:
- Texts, emails and voicemails, kept in their full context
- Photographs of injuries or damaged property, with the date they were taken
- Medical, counselling or shelter records, bearing in mind privacy issues and that such records may be sensitive
- Evidence from teachers, doctors or relatives about what they directly observed
- Criminal court documents, including bail conditions or peace bonds
- Bank records showing financial control
Be cautious about involving children in gathering evidence or asking them to write letters. Do not coach them. Where a child’s views need to be heard, there are proper ways of doing that, including a request for the involvement of the Office of the Children’s Lawyer. Recording your children or having them repeat allegations often backfires.
You must also complete Form 35.1 with any claim for decision-making responsibility or parenting time, and it asks about matters like criminal proceedings and family violence. A separate form deals with child protection involvement. Answer these honestly. Their purpose is to make sure the judge has the whole picture.
Terms a court can order
Parenting orders are not an all-or-nothing choice. Depending on the evidence, a court might order:
- Decision-making responsibility to one parent, sometimes with an obligation to inform the other about significant decisions
- Supervised parenting time, either with an agreed-upon person or at a supervised access centre
- Exchanges at a neutral location or through a third party, or at school, so that the parents do not meet
- Communication only through a parenting app, or only about the children
- Limits on overnight visits, alcohol or drugs during parenting time, or who may be present
- Conditions connected with counselling or a parenting program, in appropriate circumstances
- No parenting time at all, in rare and serious cases
Restraining orders are separate. Under section 35 of the Children’s Law Reform Act and section 46 of the Family Law Act, a family court may make an interim or final restraining order against someone where the applicant has reasonable grounds to fear for their own safety or for that of a child in their lawful custody. Breaching a family court restraining order is an offence. A criminal no-contact condition from a bail order is different again and can sit alongside a family case, and sometimes the two clash. For instance, a family order may say one thing about exchanges while a bail condition prohibits contact. Courts must be made aware of related orders and proceedings, and you should always bring such conflicts to the attention of a lawyer or the court, rather than quietly choosing which order to follow.
Moving quickly and leaving safely
Ordinarily, no motion can be heard before a case conference. Rule 14 of the Family Law Rules allows an exception for urgency or hardship, and a real safety risk may qualify. In a serious emergency, a motion can sometimes be brought without notice to the other parent, although the court will usually want to hear from both sides soon afterward. Our page on custody and parenting orders explains the broader framework for how these orders work.
If you have left the home with the children because of violence, try to get legal advice immediately and start the court process quickly, rather than waiting. A parent who disappears with children and files nothing can look very different from a parent who leaves to protect them and promptly explains why to a court. There are also rules about changing a child’s residence on a long-term basis. These usually involve notice, but the law allows a court to waive or modify notice requirements where there is a risk of family violence.
Peel Region has support services that can help with this kind of planning, including shelters and victim services. Family Court Support Workers help survivors of domestic violence who are involved in family court, or may be, by explaining the process, helping prepare for hearings, referring to other community services, and assisting with safety planning. In Brampton, the Ontario government lists Indus Community Services as the provider. Legal Aid Ontario also offers services for people who have experienced domestic violence, and it is worth asking about them even if you assume you do not qualify.
If the allegations are against you
Some readers will be on the other side of this: accused of something they say did not happen, or did not happen as described. False or exaggerated allegations do occur, and a parent who deliberately misleads the court may suffer serious consequences. But an angry denial and a counter-attack seldom help.
Take the allegation seriously. Obey any existing order strictly, even if you think it is unfair. Do not contact the other parent in breach of bail or a restraining order, and do not ask friends or relatives to do it for you. If you are facing criminal charges too, speak to a criminal lawyer before you swear any affidavit in the family case, because what you say can be used elsewhere. Give specific, factual responses, gather records that contradict the allegations and ask for practical measures that protect the child while the issue is sorted out, such as supervised time on a temporary basis. Proposing to do something like this does not mean admitting anything, and it can keep your relationship with your child alive in the meantime.
A word on fear and the family court
Survivors often worry about appearing to obstruct the other parent’s relationship with the children. Courts do consider each parent’s willingness to support the child’s relationship with the other parent. That factor is not meant to punish a parent for raising honest concerns about safety. It helps to separate clearly what you are worried about from your anger about what you went through, and to propose a parenting plan that shows you have thought about how the child could safely have contact, if that is possible.
If you are unsure how to start, begin with safety and one conversation, whether with a shelter, a support worker, duty counsel or a family lawyer. Our family law team can be contacted for a consultation, and you can ask to discuss safe ways of being reached. You do not need your whole case organized before that first call.