N.+Bala


 * Nicholas Bala, “Spousal Violence in Custody and Access Disputes: Recommendations for Reform**"

__2.1.1 – Custody__ Canadian judges have recently begun to recognize domestic violence in custody and access related cases. Only Newfoundland has legislation that makes specific reference to his factor – s.31(3) Children’s Law Act. The Divorce Act provides that when assessing the child’s best interests, judges can look to parents’ past conduct when that conduct may affect the ability of that person to act as a parent – this may include spousal violence. It is accepted that spousal abuse has profound effects on children. • Experts argue that “children who witness abuse can become abused, even though abuse is not intentionally directed towards them,” and “abused male children often become abusers and abused female children may become compliant to abusers.” • Some judges have held that being an abuser affects the parent’s ability to be a proper role model for their children. In the last 15 years, the impact of spousal violence on family relationships has been accepted as harmful on children, even without the testimony of experts. Battered women have been awarded custody, even in the face of an assessor’s report favourable to the father. Problematically, some judges have failed to recognize the impact of spousal violence, suggesting that the mother brings it upon herself to be abused. As such, it is necessary for legislative reform to include specific provisions that address spousal violence in custody and access cases.

//Joint Custody:// Joint custody is not possible where there has been abuse. In these circumstances, it is not possible for the parents to cooperate vis-à-vis their children’s daily lives.

//Mutual Spousal Abuse:// In the cases where there is a mutual power struggle, and both parties act with aggression, the judge may award more unrestricted access to the non-custodial parent, in the absence of evidence that each party’s aggression continues outside of the marital relationship.

//Abusive Women:// In a minority of cases, women have been found to be the initiators of spousal abuse. In these cases, judges have often still awarded custody to the mother, on the basis that she is the primary caregiver and expert evidence shows that abusive female spouses are less likely to directly abuse their children (i.e., pose a risk to the children). In most cases of this type, it has been found that mothers’ aggression is a result of other psychological problems, which are effectively treated with medication. Spousal abuse, while a factor that must always be considered by the courts, ought to be considered in the appropriate context. The primary caregiver should not generally be deprived of custody, unless there is evidence of direct abuse of the children.

//Separation-Engendered Violence:// Where assault and violence is confined to a few episodes, usually around the time of the separation, it has been held to be “not relevant” to custody and access battles.

__2.1.2 – Access__ The “friendly parent” s.16(10) provision of the Divorce Act has been used to justify restricting the mobility of a custodial parent and as the basis for not restricting the right of a Jehovah’s Witness father from sharing his religious beliefs with his children. S.16(1) creates a presumption that access by non-custodial parents to their children is in the child’s best interest. However, where there is a significant risk of harm, access will be restricted. Abused parents have been reluctant to put forward claims of abuse, in the fear of being deemed “unfriendly”.

//Denial of Access:// The friendly parent provision should not be applied in cases of spousal violence, as access may not be in the child’s best interest. This is based on evidence that abusive spouses may continue to be abusive towards their children, even after the dissolution of the marriage. The need for a parent to see his child is secondary to the best interest of the child. Most times, supervised access has been awarded in these cases. Unsupervised access is usually only on the table where the spouse fails to make a regular visit, acts abusively towards others, or does not show up for any anger counselling programs which he has been ordered to take. Legislation does not specify when access should be terminated. The wishes of a child in the case of a battered husband are not determinative, but will be taken into account. Courts should be wary of awarding custody to fathers where there has been a history of spousal abuse, and children are fearful of their fathers. However, where the parent has a good relationship with his child, has sought counseling, and the child wishes to have access to the father, the court has granted the unsupervised access.

//Supervised Access:// Supervised access may be appropriate is there is a reasonable apprehension of a threat to the safety of a child during a visit, if the child is afraid of the visit or refusing to visit, of if there is a reasonable apprehension that the non-custodial parent will abduct the child. A supervisor can be a professional, a volunteer, or a relative. Given the costs of supervision, supervised access should be a temporary measure to help resolve a parental impasse over access. During the time of supervised access, the abusive parent may be in counseling and taking steps to reduce risk to the child. Courts should deny access if they believe the visit will not be beneficial for the child in some way.

//Exchange supervision:// Exchange supervision is when a person is designated to be present during the exchange of the child from one parent to another. It is most often awarded where parents exhibit abusive attitudes toward each other, but risk of direct harm to the child by other parent is nil. This is a less costly alternative than supervised access.

__2.1.3 - Mediation__ Mediation is never appropriate where there is a history of spousal abuse, as the parties do not have equal bargaining power and there is a risk for continued abuse. There should be no mediation about the existence of abuse, either. Mediation is best left for situations where joint custody is appropriate.

__2.1.4 Interim Orders for Custody and Access__ In a situation of potential for serious harm to a child from an abusive spouse, a parent has a duty to take immediate steps to protect the child. This view is reinforced by s.285 of the Criminal Code. In this case, a parent may cut off access immediately, with or without a court order.

__2.2.2 – Possession of the Home__ Difficulties in proving abuse at the interim stage have made it difficult for the abused to retain exclusive possession of the child and the family home immediately.