Family Violence

For those in need of asserting family violence, or defending your parenting time against same accusations...

At a glance... there seems to be a conflict between the section on Family Violence s. 24(4) of the CLRA, and that past conduct shall not be considered s. 24(5).

As in all things law, "it depends" prevails. There's a nuance in how to reconcile the two, and the clue is in 24(5) which reads:

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.

Bare with me... I am going to make some unsavory arguments for the sake of explanation.

The one who is accused of the violence can point to 24(5) and say "that abuse doesn't matter, my past conduct with my ex should not impact my access time". And that argument can have some merit, but its the nature of the violence that comes into play, which is addressed in detail with 24(4).

For example, if the violence amounted to a single push, or even a slap.. a one off (yes - please don't judge - I am giving examples) that was done outside of view of the child and was by all accounts completely out of character; it would be an up hill battle to put forward the argument that this one act should deprive the child of a parent.

HOWEVER. If there was repeated violence or coercive control that had a long term systemic impact on the other parent, or was done in front of the child that would cause the child trauma by "reliving" that trauma every time Mom and Dad were together; then that could be a compelling argument to restrict access because there would be emotional harm done to the child.

The perception here is always through the eyes of the child and how it affects the child, not so much the abused parent (that's not entirely correct but I am dumbing down the argument here a bit). If that past violence doesn't affect the child moving forward, and there's no evidence to show that violence would most likely continue or spill over onto the child, then 25(5) (past conduct not be considered) will probably prevail.

BUT... if the abused can show the court that access the the child will likely spill over onto the child, or the abuse would continue in some way (this is more of a coercive nature not so much physical as if it were physical abuse the net result would be the parent in jail, problem solved), then access could be limited to protect the mother and child jointly from the ongoing trauma.

So history, the nature of the abuse, and the pervasiveness of the abuse post separation; and how it would directly affect the child is the argument to hone in on.