Allocating parenting time while dealing with family violence can be a difficult task. This blog will discuss how the Family Law Act deals with the rights a parent has to time with their child while at the same protecting the best interests of the child.
The default position with respect to guardianship is that while a child’s parents are living together and after they separate, each parent is the child’s guardian, unless and until the court otherwise orders of the parties otherwise agree.
There is no presumption that guardians should share parenting time or parenting responsibilities equally.
The phrase family violence” is defined in s. 1 of the Family Law Act. The definition includes: physical abuse of a family member, attempts to physically abuse a family member, psychological and emotional abuse; and intentional damage to property.
Of course, with the new Family Law Act in place, the courts must only consider the best interests of the child when making an order dealing with parenting time and parenting responsibilities. Section 37 of the Family Law Act contains a non-exhaustive list of matters that may touch on the determination of a child’s best interests. Of note are subsections (g) and (h) which state that the court must consider the impact of any family violence on the child’s safety, security or well-being and whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child.
The Family Law Act states that an order that does not, to the greatest extent possible, protect the child’s physical, psychological, and emotional safety, security, and well-being is not in the best interests of that child. A parent’s conduct for consideration is limited to those matters that might substantially affect one of the factors that make up the child’s best interests.
If the court is satisfied that family violence is likely to occur and that the family member other than the one against whom the order is sought, is “an at-risk family member” the court may make an order for protection under s. 183 of the Family Law Act. An at-risk family member is one whose safety and security is or is likely at risk from “family violence carried out by a family member”. In determining whether to make a protection order the court must consider some factors such as:
a) any history of family violence by the family member against whom the order is to be made;
b) whether any family violence is repetitive or escalating;
c) whether there is evidence of a pattern of coercive and controlling behavior directed at the at-risk family member;
d) any circumstances that may increase the risk of family violence such as substance abuse, employment, financial problems or mental health problems;
e) the at-risk family member’s perception of risks to his or he own safety and security; and
f) and any circumstances that may increase the at-risk family member’s vulnerability including pregnancy, age, family circumstances, health or economic dependence.
If the court is satisfied that a protection order must be made, the court can make an order for restraining the family member from:
i) directly or indirectly communicating with or contacting the at-risk family member or a specified person,
ii) attending at, nearing or entering a place regularly attendant by the at-risk family member; or
iii) following the at-risk family member
The court can also limit the family member in communicating with or contacting the at-risk family member, including specifying the manner or means of communication or any order the court considers necessary to protect the safety and security of the at-risk family member.