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Pereira v Ramos, 2021 ONSC 1737: Family Violence including the birthing of the statutory requirement to consider “coercive and controlling behaviour” as integral to the determination of the best interests of a child.

This case was decided on March 9, 2021, eight days after the coming into force of the March 1, 2021 amendments to the Divorce Act (the “Act”). Although the Father’s motion was brought prior to the March 1st date, Justice Jain was careful to apply the applicable recent amendments regarding parenting orders and family violence considerations.

 

This case contains a good analysis of the best interest paradigm as it relates to parenting Orders; however, this review is a closer look at the implication of family violence in assessing the best interests of children when determining an appropriate parenting order.

 

A slight aside…. Editorial comments:

“Property” terms are gone! It’s a new dawn or perhaps simply a codification of terminology that mediators and parenting coordinators have been using for a long time such as… “parenting time” … “decision-making responsibility”….. “Parenting Plans” and even communication protocols between parents. We would all agree that these nomenclatures are certainly much more pleasing to the ear. Besides being euphonious, I see them as possible catalysts to settlement. Indeed, one of the goals of the new terminology is to reduce parental conflict. Far too often a possible agreement that could be reached in the context of mediation or negotiation is imperilled because one party feels the other has WON! You have sole custody (ownership), i (not an error) only get access (which means the other parent is the gatekeeper). We can continue to use terms such as “sole”, “joint”, or “divided” regarding decision-making.

 

So, words do matter. Optics are sometimes everything and just to throw in a chuckle, the gift wrap paper is sometimes more important than the gift itself.

 

It does not seem however, that the term “primary residence” will go out with the bath water. That term remains appropriate if residence is to determine for example, school catchment. In any event, the word “primary” is certainly not as offensive as the term “custody”.

 

FACTS OF CASE:

So, what were the salient facts in Pereira v Ramos, decided by Madame Justice R. S. Jain?

 

In this case, the parties were married in 2008 and separated in 2018. After separation, the children lived mostly with the mom. The dad brought a motion last October 2020, seeking an alternating week access (parenting time) schedule regarding the parties’ three young children, aged 11, 8, and 3 (at the time of the Father’s motion). In the alternative, dad sought parenting time consistent with a “shared parenting schedule,” and that he and the mom alternate and split holidays and other special occasions with the children consistent with the children’s best interests as determined by the court. The mother did not agree and asked that dad’s motion be dismissed, that he has the children on alternate weekends and that she continue to have primary residence of the children. The mother’s disagreement did not seem reasonable because, at the onset of the pandemic in March 2020, she had asked dad to help with the children’s care, and so for three weeks the children spent equal time with mom and dad.

 

Use of Section 112 Report and Voice of the Child Report:

 

The Court was “fortunate” to have aids to understand the issues and needs of the children in the form of a Section 112 Report that was filed in February 2020, as well as updates on the views and preferences of the children in the form a Voice of the Child report dated January 19, 2021. Of note, the OCL’s report recommended a shared parenting schedule. This report had not yet been tested so mom took issue with any reliance being placed on that report. Justice Jain noted that the OCL report was “…only one piece of evidence and it should not be solely relied upon as the only basis of changing …[the] status quo”.

 

The court concluded that it was in the best interests of the children that parenting time should be shared or equal.

 

The Court did make a slight error at paragraph 13 of its decision where Justice Jain referred to the old “Maximum Contact Principle” that appeared in the marginal notes of the Act being changed to “Maximum Parenting Time Principle”. In fact, the former and latter terms no longer appear in the marginal notes of the Act. Any residual reference to those terms seems to be subsumed in Section 16(6) of the Act which reads as follows:

 

Parenting time consistent with the best interest of the child: In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

 

The slight error made by the Court, however, does not appear to have impacted the actual decision reached because Justice Jain was swift to point out that, in determining the best interest of a child, the principle of “maximum parenting time” is subject to the “Primary Consideration: that the court must consider a child’s physical, emotional and psychological safety, security and well-being….” (section 16(2)). This means that each factor must be assessed within the primary consideration context.

 

Definition of Family Violence:

Family violence is defined quite broadly in the interpretation section (2)(1) of the Act as follows:

“family violence” means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property; (violence familiale)

 

Family Violence as a Best Interests consideration:

The Best Interests of the Child criteria specific to cases involving family violence is included in the amendments at Sections 16(3)(j),(k) and 16(4)). Our courts are now mandated to consider family violence and its impact in determining the best arrangements for children.

 

Section 16 (3) (j) of the Act and reads as follows:

(j) any family violence and its impact on, among other things,

 

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) 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;

 

Section 16(4) (a) to (h): Factors relating to family violence reads as follows:

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

 

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

 

Family violence factors in the Pereira case:

The family violence factors in the Pereira case included the following:

 

  • Both parents alleged incidents of parental conflict and anger.
  • Some of the conflict took place in the presence of the children.
  • Police attended the parties’ home twice.
  • Prior to separation: Mom was arrested and removed form the home. Charges were laid.
  • At the time of the separation: Dad was arrested. Charges were laid. Charge resolved by peace bond that prohibited contact. The Peace Bond expired in November 2019 which was a little over a year after the parties had separated.
  • CAS were contacted but no open nor ongoing file.

 

It is clear from the ratio decidendi of the case, that Justice Jain did assess the factors relating to family violence commenting as follows:

  1. The nature, seriousness and frequency of the family violence was (unfortunately) typical in family court proceedings.
  2. The situation (when police was called) did not result in injury or serious physical harm.
  3. Charges laid were resolved with a peace bond.
  4. No serious conflicts occurred during parenting time exchanges and the parents were able to work out some changes to the parentings schedule peacefully and cooperatively.
  5. There were no allegations of a pattern of coercive and controlling behaviour or that any member of the family caused another member of the family to “fear for their own safety or that of another person”.
  6. The conflict between the parents was not directed at the children; however, the children were directly and indirectly exposed to their parents’ conflict.
  7. The pattern of conflict was situational.
  8. Both parties showed some limited insight as to how they could avoid conflict in the future.

 

Timing of family violence:

It appears that, in assessing the family violence factors in this case, there was a deliberate turning of Justice Jain’s mind to the element of the timing of the violence consideration found at Section 16(4) (a)) of the Act. Was the violence present prior to separation, around the separation date or after? In assessing the element of “timing”, Justice Jain noted the following:

  • Paragraph 26: “although this matter has been rife with conflict in the beginning….”
  • Paragraph 27: “…allegations against each other in the past…”; “the police were called to respond to the conflict (especially early in the separation….”
  • Paragraph 29: “The conflict between the parents was not directed at the children, however, the children were directly and indirectly exposed to it (especially at the initial stages of the separation)….”

 

Would timing matter if the violence constituted a criminal offence? It will be interesting to see how the element of timing is addressed in subsequent cases.

 

If family violence is an evidence-based criterion, should the evidence be tested?

 

Pattern of coercive and controlling behaviour:

Section 16 (4)(b) of the Act now mandates that, in considering the impact of family violence we must now consider: “whether there is a pattern of coercive and controlling behaviour in relation to a family member”. This type of behaviour creates unequal power dynamic in relationships.

 

Justice Jain considered this element of family violence, noting at paragraph 28 of the decision as follows:

Neither parent has alleged that the pattern of conflict or family violence between these parties was “coercive and controlling” or that any member of the family caused another member of the family to “fear for their own safety or for that of another person”. The conflict described in the affidavits was mostly related to incidents of the separation and did not indicate a power imbalance between the parties. If anything, from their affidavits and the OCL report, both parents strike me as strong people with strong opinionsNeither parent was submissive to the other.  The mother confirmed that she “developed a comfort of standing up to” the applicant and “saying what she was feeling.”

 

For mediators, there is an art to screening for power imbalances.

 

I leave us with some provocation:  Can a court fully assess coercive and controlling behaviour on untested evidence? Does the OCL report provide sufficient help to the Court on these issues? Must OCL reports now include a mandatory section that focusses on family violence? Will screening certificates now be mandatory in each family law case?

 

Have the worlds of mediation and litigation fully collided?