By: Deanne Sowter and Jennifer Koshan

PDF Version: Judging Family Violence: Recommendations for Judicial Practices and Guidelines in Family Violence Cases

There have been some recent legal developments that compel us to consider the role and responsibilities of judges in cases involving family violence. First, amendments to the Divorce Act, RSC 1985, c 3 (2nd Supp), came into effect in March 2021 and the Act now stipulates that family violence is a factor relevant to the best interests of the child. Family violence is finally recognized federally as germane to judicial decisions on parenting, though it is not explicitly recognized as relevant to whether negotiated settlements are an appropriate expectation, which has important implications for the judge’s role in this area. Second, there has been heightened attention to judicial education in the context of gender-based violence, most directly through Bill C-3 (Second Session, Forty-third Parliament). This Bill received Royal Assent in May 2021 and revised the Judges Act, RSC 1985, c J-1, such that in order to be eligible for appointment to superior courts, prospective judges undertake to participate in continuing education on sexual assault law and social context (s 3(b)). While limited to sexual violence, these amendments raise issues about judicial education that are relevant in the family violence context as well. Third, the Canadian Judicial Council (CJC) released its newly revised Ethical Principles for Judges (EPJ) in June 2021. The EPJ do not explicitly reference family violence, which is a concern, but there are also opportunities to interpret the EPJ to ensure that family violence considerations are front of mind for judges hearing cases or conducting judicial mediation. In this post, we consider these developments and make recommendations for judicial practices and guidelines that better reflect the gravity and context of family violence. Continue reading →