In a recent Auckland case, the court addressed a narrow but interesting issue: Was the father’s failure to pay child support, and his failure to pay expenses related to the home he jointly owned with the mother, tantamount to “family violence” under Family Law legislation?
The question arose during the parents’ litigation over their young daughter, aged 3. The parents had separated after nearly a decade together, at a time when the mother was 28 and the father was 30. Both earned good incomes.
The court was asked to settle various contentious parenting-related issues between the parties. One of them related to the father’s parenting time with their daughter. Although they had tried to work out an informal arrangement, it turned out to be fraught with discord. The court explained:
When the parties separated, C. was an infant and being nursed by the applicant. As a result, the respondent’s parenting time was necessarily restricted. There developed an informal arrangement that saw the respondent attend the home of the applicant regularly to spend time with his daughter. As with many other factual disputes between the parties, their perception of the respondent’s actions during these initial months differs markedly. From the respondent’s perspective, he was trying to maintain an active involvement in the young life of his daughter with frequent short visits rather than separating her from her mother for longer periods of time. From the applicant’s perspective the respondent was inconsiderate of her, attending more frequently than she would like, often unannounced and without notice, and asking that she pump breast milk on demand so that he could feed C. What is lacking in these parties is any appreciation for the perspective of the other.
I accept that the respondent was doing his best to forge a bond with his infant daughter under difficult circumstances. I also accept that he, at times, failed to appreciate the demands he was placing on the applicant and the stress and pressure she was under as a recently separated young mother caring for an infant.
Subsequent negotiations did not resolve this issue, and they were also at odds constantly over their different parenting styles. The mother also hoped to move away with the child to another city so that she could attend a Master’s program; this was yet another dispute for the court to resolve.
All this friction between the parents was heightened by the fact that a four-month period, the father had neither paid child support nor helped contribute to the expenses for their jointly-owned home – even though he was living there.
The mother claimed this should factor into the court’s decision-making on how to allocate parenting responsibility between them. In this context she made an innovative argument: She claimed that the father’s failure to meet his financial obligations amounted to “family violence” under section 18 of the children’s Law Reform Act (CLRA). That provision defines family violence as any conduct that is violent or threatening, constitutes a pattern of coercive or controlling behavior, or causes the other to fear for their safety or that of another person. This can include psychological and financial abuse.
The court found the father’s inaction, although “inappropriate and unjustified”, did not meet the “family violence” threshold. It said:
Family Violence
… The applicant [mother] submits that she has been the subject of significant financial abuse that amounts to family violence as defined in the Act. This includes the respondent’s [father’s] failure to make payments on utilities, taxes and mortgage payments related to the jointly owned home after separation while occupying it; along with his failure to make regular child support payments and complete financial disclosure that would allow the calculation of his contribution towards daycare costs.
In my view, the conduct complained of by the applicant does not amount to family violence. The failure to pay expenses related to the home was not violent or threatening, was not coercive or controlling of the applicant and did not cause her to fear for her safety.
The respondent’s failure to remit child support and childcare costs in a timely manner was inappropriate and unjustified but did not amount to family violence. The applicant will be made whole through enforcement by FRO or from the proceeds of sale of the jointly owned home.
In other words, since the mother did not fear for her safety because of the father’s financial dereliction, the “family violence” definition was not met. It was not one of the considerations that the court had to take into account, when making parenting decisions.
For the full text of the decision, see:
D.C.D. v. C.M.S., 2024 ONSC 262
