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1. The federal Divorce Act and child custody and access legislation in most provinces name domestic violence as a factor that must be considered in determining “the best interests of the child”.
2. Most women who report violence after separation say the violence is more severe than during the relationship?
3. The “best interests of the child” has become equated with maximum access between the child and the non-custodial parent.
4. Often post-separation abuse involves children.
5. Histories of domestic abuse are reviewed by the family court judge in awarding custody and access.
6. Abusers are more likely to ask for sole custody or to insist on extensive access to their children.
7. Abuse may influence a victim’s ability to safely negotiate a separation agreement with the abuser.
Neither the Divorce Act nor many provincial acts name domestic abuse as a factor that judges must consider when determining the best interests of the child.
However, amendments to the NS Maintenance and Cusody Act respecting Dependent Children and their best interests (Bill 39) received Royal Assent on May 17, 2012 but as of February 2013 had not yet been proclaimed in force.
In Canada, most women who report violence after separation say the violence is more severe than it was during the relationship. In fact, many women say the violence started after they left the relationship.
Federal and many provincial custody and access legislation place a high value on the relationship between access parents and children and support “maximum contact” as being in the best interests of the children. Having said that, judges have discretion in determining the best interests of the child and can take into account the impact of domestic abuse.
Forms of Post-Separation Abuse
When a couple separates, in most cases both parents continue to have legal rights and obligations to their children and property. Ongoing family court matters such as custody and access, divorce, and child support can keep the parents in contact with each other for years after separation.
This post-separation contact can be difficult and dangerous for abused women with children if it provides opportunities for the abuse to continue. For example, an abusive ex-partner may:
• threaten or harass the victim during child handovers,
• file excessive family court applications,
• make false allegations to child protection authorities,
• refuse to return the children after an access visit,
• harm the children directly in an effort to maintain control
• unnerve victims by declaring their love,
• try to make her feel guilty by asking, “How could you do this to me/to the children/the family?”
The main forms of post-separation abuse often involve children. These include:
• threats and intimidation, which may happen in front ofchildren
• surveillance, such as repeated phone calls and stalking,which may involve children
• abuse through or of the children, such as making negativecomments about the mother during access, criticizing andname-calling, or withholding treats or meals
• attempts to involve the children in the conflict betweenparents, for example by getting children to make requestsof the mother on his behalf, trying to gain sympathyfrom children by distorting facts of the conflict, or tellingchildren the mother will lose custody
• multiple family court applications, for example using courtapplications for custody to harass the mother
• financial abuse, such as withholding child support orrepeatedly taking the mother to court
• false child-abuse allegations against the mother.
According to Statistics Canada, men (49%) and women (51%) are equally at risk of violent victimization. However, prevalence rates do not tell the entire story. The more coercive and aggressive violence is perpetrated by men. A report prepared in 2009 by Stats Can found that on average every six days a woman in Canada is killed by her intimate partner. In 2009, 67 women were murdered by a current or former spouse or boyfriend.
This varies from province to province. In Nova Scotia, for example, family law does not require judges to consider domestic abuse in relation to custody and access unless it is shown to affect the child’s best interests. According to the law, a parent’s past behaviour, including a history of domestic abuse, is not relevant to custody and access unless the judge believes it affects the best interests of the child. Therefore the court is more likely to consider a history of domestic abuse if an ex-partner abused the child directly, abused you in front of the child, involved the child in your abuse, or is still abusing you or his new partner.
Amendments to the NS Maintenance and Cusody Act are currently awaiting proclamation.
Abusive men are more likely than other men to ask for sole custody or to insiston extensive access to their children.
Many legal system professionals still fail to recognize that abuse may influence a woman’s ability to safely negotiate a separation agreement with the abuser or that abuse may make it difficult for her to speak out to lawyers, mediators, and judges about her needs and those of her children. This is why, for example, abuse cases are no longer directed into court-connected mediation or joint conciliation in Nova Scotia.
For links that provide further information on research and statistics on domestic abuse click here
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