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The Impact of Domestic Violence on Child Custody Cases

October 14, 2020

Child custody is one of the most important decisions in a divorce or common-law separation. Besides establishing parental responsibilities, it sets the tone for how well a child re-adjusts after his or her family situation has changed. Most families can amicably settle on child custody arrangements, for others, it’s a matter for the courts to decide.

Court cases are complicated enough, as judges must decide on the best custodial circumstances for the child. When domestic violence is involved, child custody cases get even more complex. The courts view domestic violence very seriously, and an accusation can influence their custodial award in favour of one parent over the other. No two custody cases are identical, however, and as such, each must be considered on its own merit.

What is domestic violence?

Domestic violence is a pattern of coercive and assaultive behaviour. It impacts all social classes and often presents as physical assault, neglect, financial coercion, sexual or psychological abuse.

Domestic violence includes conflicts between spouses, ex-spouses, parent and child or between children. Everyone in the home is impacted by domestic violence, particularly minors who are especially at risk for emotional trauma, psychological imbalance and becoming future victims or perpetrators themselves. Under Canadian Law, most acts of domestic violence are criminal offences.

How do courts settle custody cases?

Courts use the Family Law Act, Divorce Act and laws at the provincial or territorial levels, in conjunction with decisions in prior court cases and the results of court-ordered assessments to settle child custody cases. However, a court’s decision for custody and access is ultimately based on what, in its view, serves the child’s best interests.

The child’s best interest

The child’s best interest is a set of factors used to establish the most suitable custodial circumstances. Under Section 24 of Ontario’s Children’s Law Reform Act, factors include:

  • The love, affection and emotional ties between the child and anyone claiming custody of or access to the child, other family members who will reside with the child, and anyone else who will be involved in the child’s care and upbringing;
  • The child’s wishes, if the courts determine they are of sufficient age and capacity;
  • How long the child has lived in a stable home environment;
  • The ability, willingness and proposed plan of each person applying for custody to provide the child with guidance and
  • education, the necessaries of life and cater to any special needs;
  • Whether the family unit with which it is proposed that the child will live offers permanence and stability;
  • The ability of each individual applying for custody or access to act as a parent; and
  • Any familial relationship between the child and each person applying for custody or access.


Impact on child custody cases

Both parents are equally entitled to custody of a child. But in custody cases with domestic violence involved, this dynamic could change.

Acts of domestic violence impact custody cases only if the court is satisfied that the conduct is relevant to the person’s ability to act as a parent. It means that an abusive spouse may still have a claim to custody if he or she has extraordinary parenting skills that serve the child’s best interest.

Section 24(4) of the Children’s Law Reform Act states that in evaluating an individual’s parenting ability, the court shall consider whether the person has at any time committed violence or abuse against i. his or her spouse, ii. a parent of the child in question, iii. a member of the person’s household or iv. any child.

Once an accusation has been made, the courts could potentially deny custody to the accused parent. Children need a safe and secure home, free of violence, and any possible threat to the child or the child’s other parent must be taken under serious consideration.

Bear in mind that accusations of domestic violence are difficult to prove, and an act of abuse is only one of several factors that are considered by a judge to settle custody cases.

In addition to custodial rights, domestic violence also affects access to visitation. Settling child custody cases is a complicated matter and is best left in the hands of a child custody lawyer.

Do you need a Toronto child custody lawyer?

Your custodial rights are important. If you want to increase your chances of a successful custodial award, contact us at Baker and Baker Family Law. Our experienced family lawyers can expertly represent you in your child custody and domestic violence matters. Let us help you put your custodial dispute behind you.

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