Assessing for Family Violence
Section 38 of the Family Law Act reads as follows:
Assessing family violence
38 For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following:
(a) the nature and seriousness of the family violence;
(b) how recently the family violence occurred;
(c) the frequency of the family violence;
(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;
(e) whether the family violence was directed toward the child;
(f) whether the child was exposed to family violence that was not directed toward the child;
(g) the harm to the child’s physical, psychological and emotional safety, security and well-being as a result of the family violence;
(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;
(i) any other relevant matter.
Explanation from the Ministry of Justice
Section 38 provides guidance for decision-makers on how to assess family violence as a factor in considering the best interests of the child.
This approach is designed to produce a more nuanced risk assessment and avoid a one-size-fits-all approach regarding parenting arrangements in cases where there has been family violence. Research shows that family violence is not all the same. This approach takes into account research showing that different types of violence carry different levels of future risk.
This section is adapted from a similar provision in New Zealand’s family law, which is often considered to be a best-practice.
Section 38 provides factors to assist decision-makers in assessing family violence. These factors were adapted from New Zealand’s family law act and reflect the reality that family violence is not all the same. Interestingly, s. 38 provides the opportunity to put before the court social science material in the area of family violence in order for the court to assess risk, future risk, and security for the child.
The following case law from other jurisdictions provides some insight into how other courts have assessed the best interests of children when violence is present:
M. (N.G.) v. M. (W.A.), 2000 ABQB 328: The court considered the impact of verbal, emotional, and psychological abuse and the necessity for “healthy contact” in order to preserve the best interests of the children.
W. (C.L.) v. P. (K.P.), 2007 ABQB 591: The court “ventures into the grey area of psychological damage” and engages in an assessment that prioritizes the best interests of the children.
H. (H.) v. C. (H.), 2002 ABQB 426: The court engaged in an analysis of the impact of violence experienced against one parent by the other in the context of children witnessing family violence. The case contains significant social science research that was put before the court and the court’s appreciation for such evidence in their assessment process of family violence and the best interests of the child.
Abdo v. Abdo (1993), 126 N.S.R. (2d) 1 (C.A.) : The court engaged in an analysis of the long-term impact for children when exposed to parental violence and the detrimental effect on children’s psychological development.
Griffiths v. Leonard, 2010 ONSC 4824: The court emphasized the father’s historically violent behavior towards the child’s mother in its determination that he should be denied access.
Lidder v. Lidder,  O.J. No. 2896 (QL) (S.C.J.): The court ordered that the father should have continued supervised access because of his failure to address his wife’s reasonable concerns as to whether his anger and tendency to express himself by violence would pose a danger to the child. The court put an obligation on the father to have taken steps to address his wife’s concerns.
Family law legislation in Alberta and Ontario parallels s. 37(2)(j) and the court’s requirement to consider other existing civil and criminal proceedings in the assessment of family violence and the safety and best interests of children.
The positive duty to screen for family violence by family dispute resolution professionals is found at section 8 of the Family Law Act:
Duties of family dispute resolution professionals
8 (1) A family dispute resolution professional consulted by a party to a family law dispute must assess, in accordance with the regulations, whether family violence may be present, and if it appears to the family dispute resolution professional that family violence is present, the extent to which the family violence may adversely affect
(a) the safety of the party or a family member of that party, and
(b) the ability of the party to negotiate a fair agreement.
(2) Having regard to the assessment made under subsection (1), a family dispute resolution professional consulted by a party to a family law dispute must
(a) discuss with the party the advisability of using various types of family dispute resolution to resolve the matter, and
(b) inform the party of the facilities and other resources, known to the family dispute resolution professional, that may be available to assist in resolving the dispute.
(3) A family dispute resolution professional consulted by a party to a family law dispute must advise the party that agreements and orders respecting the following matters must be made in the best interests of the child only:
(b) parenting arrangements;
(c) contact with a child.
Family dispute resolution professional is defined as follows:
“family dispute resolution professional” means any of the following:
(a) a family justice counsellor;
(b) a parenting coordinator;
(c) a lawyer advising a party in relation to a family law dispute;
(d) a mediator conducting a mediation in relation to a family law dispute, if the mediator meets the requirements set out in the regulations;
(e) an arbitrator conducting an arbitration in relation to a family law dispute, if the arbitrator meets the requirements set out in the regulations;
(f) a person within a class of prescribed persons;
“Family dispute resolution” in the Family Law Act is defined as follows:
“family dispute resolution” means a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside court, and includes
(a) assistance from a family justice counsellor under Division 2 [Family Justice Counsellors] of Part 2,
(b) the services of a parenting coordinator under Division 3 [Parenting Coordinators] of Part 2,
(c) mediation, arbitration, collaborative family law and other processes, and
(d) prescribed processes;