Joint Decision-Making and Family Violence

How can family violence impact a claim for joint decision-making responsibility?

By Danielle Sawh

What is Joint Decision Making Responsibility?

Decision-making responsibility refers to the responsibility of making the major decisions for children, including health care, religion, education, and significant extracurricular activities. “Joint decision-making responsibility” allocates the decision-making responsibility to both parents equally. This arrangement inherently requires parents to communicate and work together to make major decisions for the children.

The Superior Court of Justice recently reiterated that the “ultimate goal in crafting an appropriate decision-making regime is to promote the child’s right to grow up within a parenting regime that is cooperative and effective, where decisions are made in a child-focused and with the least amount of acrimony and stress” (Abou-Shaaban v Alwani, 2024 ONSC 1620).

As with any parenting order, the Court must make any decision-making order in accordance with the best interests of the child. The “best interest” factors are laid out in Section 24 of the Children’s Law Reform Act and Section 16 of the Divorce Act. There must also be an evidentiary basis for belief that joint decision-making will be feasible (May-Iannizzi v Iannzzi, 2010 ONCA 519).

What is Family Violence?

In 2021, the “best interest” factors in the Divorce Act and the Children’s Law Reform Act were changed to add specific reference to “family violence” as a factor that a Court must consider when determining the best interests of the child. The legislation provides a broad definition of family violence, which goes far beyond merely physical violence. Furthermore, there is no need for conduct to result in a criminal charge for it to fall within the definition of “family violence”.

Prior to these amendments, the courts generally recognized the concern of intimate partner violence/domestic violence as it relates to parenting issues, but the amendments to the legislation have led to a wider understanding of the often-insidious nature of family violence, and the significant impact of this violence on the victimized parent, and on children.  

The Impact on Joint Decision-Making Claims

Before assessing the impact that family violence has on a decision-making order, the Court must first determine whether family violence existed (or exists). This can be a very challenging issue to navigate. The party claiming the existence of family violence must prove it on the “balance of probabilities”. Corroborating police or child protection investigations may assist the Court, but in many cases, there are no previous formal investigations or complaints to rely on.

The Supreme Court of Canada has recognized that family violence often takes place behind closed doors and can be difficult to prove. Proof of even one incident may raise safety concerns for the victim or may overlap and enhance the significance of other factors such as the need for limited contact or support. (Barendregt v Grebliunas, 2022 SCC 22).

The Court must undertake an assessment of each party’s credibility, and the evidence they lead, when deciding whether to make a finding of family violence. Upon making a finding of family violence, the Court must then engage in an assessment of the impact on the children’s best interests.

The Supreme Court of Canada confirmed that the 2021 legislative amendments recognize that findings of family violence are a critical consideration in the best interests analysis. The Divorce Act broadly defines family violence to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse, and courts “must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child”. Specifically, the Supreme Court held that being a perpetrator of domestic violence is relevant to “parenting ability” (Barendregt v Grebliunas, 2022 SCC 22).

Amongst other things, the Court must consider the impact of family violence on:

1. The ability and willingness of any person who engaged in family violence to care for and meet the needs of the child; and
2. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child.

A full appreciation of the various levels on which the violence impacted its victims is critical to the court’s ability to formulate a decision-making and parenting time framework that addresses the concerns and supports and fosters the child’s best interests (SVG v VG, 2023 ONSC 3206).

The Superior Court of Justice has recognized that a victim of family violence might be unable to co-parent due to the trauma they have experienced, or ongoing fear of the perpetrator, and furthermore that cooperative arrangements may lead to further opportunities for family violence (Bell v Reinhardt, 2021 ONSC 3352).

If the Court finds that family violence existed, there are several options to resolve the decision-making issue. In many cases, the Court will find that joint decision-making is not appropriate; however, this is not a foregone conclusion. 

In SVG v VG, the Court reiterated that there are established principles and guidelines for assisting courts in deciding whether to make orders that divide out specified areas of decision-making responsibility to each party, for example orders requiring the parties to attempt to make decisions jointly, but granting each party final say in specified areas of decision-making in the event of a disagreement. This approach aims to meet the children’s needs where both parties have been active and competent parents, but the conflict between them makes a traditional joint decision-making order, or an order for sole decision-making, inappropriate and contrary to the children’s best interests (SVG v VG 2023 ONSC 3206).

Ultimately, there is no one-size-fits-all approach. However, family violence is a very relevant factor that a Court must consider when addressing parenting and decision-making issues, and it is important to disclose incidents, or patterns, of family violence as early as possible. If you, or someone you know, needs assistance with these issues, please contact Danielle Sawh at dsawh@sorbaralaw.ca. You can also find resources below:

https://www.canada.ca/en/public-health/services/health-promotion/stop-family-violence/services.html

https://www.ontario.ca/page/get-help-if-you-are-experiencing-violence

https://www.yellowbrickhouse.org/community-resources/

https://lukesplace.ca/for-women/