SECTION 2: LITERATURE REVIEW
In this section, we review the literature on the concepts relevant to FV and the impact of FV on children. We review the literature on the history of Canada’s Divorce Act and discuss key concepts that emerge concerning recent changes to the Divorce Act. We discuss the compounded impact of FV and systemic oppression on racialized immigrant families.
Family Violence
The latest amendments to the legistlation have replaced the term domestic violence with family violence (Government of Canada, 2019b). Section 2(1) of the Divorce Act defines FV as
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 physical abuse, sexual abuse, threats to kill or cause bodily harm to any person, harassment, including stalking, the failure to provide the necessaries of life, psychological abuse, financial abuse, threats to kill or harm an animal or damage property and the killing or harming of an animal or the damaging of property (Government of Canada, 2022, para 1).
In keeping with this change, this report will hereafter use the term FV to denote any direct and indirect experiences of FV indicated in the literature and by our participants.
Direct Violence and Indirect Violence
Canada‘s Divorce Act now makes the legal distinction between a child as a witness and a child as a victim of FV. Literature has examined the impact of direct and indirect violence on children (Kimber et al., 2018; McTavish et al., 2016). Children experiencing violence directly refers to children being an adult’s primary target of violence (Kimber et al., 2018; McTavish et al., 2016). Early definitions of child maltreatment in medical and social science literature it was characterized as neglect, physical violence, or sexual abuse (Malinosky-Rummell & Hansen, 1993). Psychological maltreatment, or psychological abuse, was a central concern and integral to all forms of child abuse and recognized as resulting in adverse outcomes for children (Edwards, 2019). However, the definition of child maltreatment has evolved over the years, and many jurisdictions (including Canada) have identified five forms of child maltreatment: physical abuse, sexual abuse, neglect, emotional harm (psychological abuse), and exposure to FV (Gardner et al., 2019; Mehta et al., 2021).
Scholars have found that children who have experienced violence indirectly or come from FV environments experience adverse health, psychological, and social outcomes (Luthar et al., 2021). In a systematic literature review, Gardiner et al. (2019) found a compelling association between the five forms of child abuse and adverse mental health outcomes. In addition, exposure to personal and systemic factors such as community violence, racial discrimination, poverty, substance abuse, divorce, bullying, and separation from immigrant parents have also been identified as traumatic events with negative consequences on a child’s life (Portwood et al., 2021).
The definition of exposure to indirect violence and witnessing violence refers to: children’s awareness of an adult’s abuse of another parent, caregiver, or family member; awareness of a parent’s violence; seeing violent interactions; hearing stories about the violence, or seeing evidence of the abuse (Kimber et al., 2018; McTavish et al., 2016). However, in this report, we use the term children’s direct and indirect experience of violence, as advanced by Callaghan et al. (2018) and Overlien (2017), to interrupt conceptions of children as passive witnesses or recipients of violence between/from adults.
Impact of Family Violence on Children
During the 1980s to the early 1990s, research focused on understanding the adverse effects of FV on children. The literature describes adverse behavioural and emotional outcomes that include internalizing problems, such as withdrawal, anxiety, and depression, along with externalizing problems, such as conduct disorders, aggression, and delinquency (Franzese et al., 2017; United Nations, 2020). Research has also indicated that witnessing FV as a child has consequences such as suicidal ideation, body-esteem issues, and adjustment problems during adolescence, that children who witness FV are likely to engage in bullying at school and also to be the victims of bullying (Nagaraj et al., 2019). Furthermore, children who have experienced abuse, violence, or neglect by their parents are also at increased risk of having poor physical and mental health (Schubert, 2022) that can extend into adulthood (Jewkes & Morrell, 2017; Kumari, 2020), including lifetime depressive disorders and anxiety issues (Kisely et al., 2018).
Post-traumatic stress disorder (PTSD) is a condition that may develop after an individual is exposed to a significantly traumatic situation (American Psychological Association, 2022). Children exposed to traumatic events such as interpersonal violence are at an increased rate of developing PTSD (Schubert, 2022; Woolgar et al., 2022). Cross et al. (2018) found that parents who experience PTSD and trauma are at an increased risk of inflicting abuse on their children, thereby increasing their children’s chances of developing PTSD. There are also differences in PTSD rates between demographic groups in Canada. A longitudinal study by Davison et al. (2021) demonstrated that individuals with immigrant status (including refugees, uprooted people, and economic migrants) have a significantly greater chance of developing PTSD than white immigrants and their Canadian-born counterparts. Despite controlling for social, health, nutritional, and economic factors, this difference in PTSD persisted. Davison et al. (2021) suspect that the relationship between the variables may be mediated by factors not included in their study.
The World Health Organization has distinguished between PTSD and Complex PTSD (C-PTSD) in the 11th edition of its International Statistical Classification of Diseases (ICD-11) and Related Health Problems (Melton, 2019). To be diagnosed with C-PTSD, individuals must meet all of the PTSD criteria in addition to experiencing distanced relationships, affect dysregulation, and a negative self-concept (Longo et al., 2021; Vang et al., 2021). The designation C-PTSD is meant to address the specific symptoms associated with prolonged or repetitive exposure to traumatic events (Greenblatt-Kimron et al., 2022; Melton, 2019), which includes experiences of violence and abuse in childhood (Gilbar & Cloitre, 2019; Vang et al., 2021). Karatzias et al. (2019) and Longo et al. (2021) found that compared to PTSD, C-PTSD is a more debilitating condition, and those with it have a higher likelihood of major depressive disorder and generalized anxiety disorder than people with PTSD. However, Ford (2020) has challenged the construct validity of C-PTSD and has recommended conducting more research on C-PTSD and PTSD differences.
Individuals who experienced sexual or physical abuse during childhood are also more likely to experience revictimization in adulthood in the form of dating violence (Mazarello et al., 2022; Yan & Karatzias, 2020). However, there is evidence that the transmission of violence changes over developmental stages. Haselschwedt et al. (2021) found that female participants who witnessed FV during childhood and adolescence reported having abusive partners and relationships in high school. Their experience of violence impacted how they entered, managed, and exited romantic relationships in college. Overtime, however, as they became older, the participants in this study became selective and chose romantic partners who did not share traits with their fathers (Haselschwedt et al., 2018).
There is an intergenerational consequence to FV as well. Children who experience abuse and neglect are more likely to become victims or perpetrators of FV themselves (Lünnemann et al., 2019; Maji, 2018). Forke et al. (2018) argued that male and female adolescents are impacted differently based on who perpetrates violence. When children see a male perpetrating violence on a female, the male child is more likely to learn and repeat the witnessed behaviour, while the female child is likely to feel victimized. However, when a female adult is perpetrating violence either solely or in conjunction with their male partner, the impact of the violence is experienced in the same way by both male and female children.
The relationship between child and parent can also become strained due to the child witnessing FV. Ghani (2018) and Lamb et al. (2018) found that a strained relationship between father and child was one way in which FV impacted family relationships. They further found that their participants were willing to repair their relationships with their fathers if their fathers recognized their violent actions’ impact on them. Kong and Goldberg (2022) also found that childhood exposure to FV can impact siblings’ closeness in adulthood.
Children exposed to FV are also likely to struggle academically because of vulnerability to hyperactivity and inattention, dealing with basic and advanced literacy and articulation and understanding others (Orr et al., 2021).
Overlien (2017) notes that while the dominant empirical research on measuring the negative impact of exposure to FV is crucial for increasing our knowledge of and identifying needs for children’s services, this approach has several pitfalls. First, it frames children as passive bystanders or passive recipients of abuse. This leads to the design of children’s services that generalize children’s experiences and undermines their agency. Second, it overlooks what qualitative research grounded in children’s experiences has revealed: that children are directly impacted when one parent abuses the other parent, and they have agency in how they develop strategies to cope with and manage this impact (Arai et al., 2021; Callaghan et al., 2018; Overlien, 2017). Third, research focused on negative symptoms, behaviours, and outcomes could lead to assumptions that children who do not manifest negative symptoms and behaviours or appear to be thriving are not impacted and do not require services.
Poverty and Its Impact on Family Violence
Evidence shows that food insecurity and FV share a bidirectional relationship (Laurenzi et al., 2020), with a higher correlation among low-income families (Haque et al., 2020). Individuals living in poverty are more likely to report emotional, physical, and sexual abuse (Field et al., 2018; Lacey et al., 2020). When understanding the relationship between food insecurity, poverty, and FV, we must also consider intersectional influences, as some demographic groups are more likely to experience financial issues than others. Mehta et al. (2021) highlight how many refugees and asylum seekers have acquired trauma before migrating to a new country and how these individuals experience financial, social, educational, and health challenges in addition to racism and prejudice in their country of resettlement. As a result, the children of these individuals are at a higher risk of experiencing physical and emotional abuse and neglect as they manage the trauma of their acculturative stress.
Immigrants are more likely to experience difficulty securing employment (Crea-Aresenio et al., 2022), which has a long-term economic impact, including wage-earning loss (Zhang & Banerjee, 2021). Lightman and Good Gingrich (2018) found that women, recent immigrants, and South Asian, Arab, and Black racialized individuals were more likely to experience a persistent disadvantage in the Canadian labour market. Ertorer et al. (2022) also found that first-generation immigrants in Ontario experienced barriers to employment, promotion, and social integration due to discrimination and cultural judgement. Individuals experiencing poverty and FV are more likely to experience violence for extended periods due to their limited financial and social resources (Niess-May, 2019). Furthermore, parents’ stress of living in poverty is a significant risk factor for child abuse and neglect (Bennett et al., 2020).
Service Needs
Among children and youth victims of crime in Canada, approximately 30% are victims of FV (Conroy et al., 2019). In the literature, services for children exposed to FV have been organized into three categories: school services, child welfare services, and mental health services. The idea of trauma-informed care is also discussed in studies on school services (Howard, 2019; Martin et al., 2017), child welfare services (Bunting et al., 2019; Dougherty et al., 2022), and mental health services (Kulkarni, 2019; Levenson, 2017) for children exposed to FV. Trauma-informed care is an approach that recognizes that children, youth, and adults can all have trauma histories and works to decrease the re-traumatization of the client as much as possible (Racine et al., 2020).
Mehta et al. (2021) argue that school-based programs that deal with abuse benefit students because they expand their understanding of the issue. Lloyd (2018) points out that if a teacher approaches a child exposed to FV, the educator must be prepared with information about services and be aware of the procedures they need to follow. According to Dougherty et al. (2022), many children who are at risk of expulsion because of behavioural issues have experienced FV and trauma. They found that establishing a behavioural support service for educators resulted in a significant increase in the students’ prosocial skills and a significant decrease in problems of conduct and hyperactivity.
As there is a relationship between FV and poverty, Lloyd (2018) highlights how school breakfast clubs are a helpful service for children experiencing violence. Furthermore, she encourages schools to offer homework clubs, as students exposed to FV might not have a space to do their homework. Bullinger (2019) also outlines how offering paid family leave for working parents could be a helpful service to decrease FV, as this would alleviate financial stress and unemployment.
O’Leary et al. (2018) contend that tension exists between child welfare and FV services because of their philosophical differences in supporting service users. While child protection services hold the child as the primary focus and the parents as the support, FV agencies usually work with a feminist lens and focus on the mother as the primary client. In their study, O’Leary et al. (2018) found that the lack of insight into the importance of integrated responses between FV services and child protection services impacts the sharing of information between agencies, thus adversely affecting the safety of women and children impacted by FV. Cramp and Zufferey (2020) also found that blaming the mother is a recurring problem within and outside child welfare services. O’Leary et al. (2018) and Cramp and Zufferey (2020) emphasize the importance of collaboration among agencies delivering services for mothers and children impacted by FV.
Doughterty et al. (2022) highlight the dearth of mental health professionals trained in trauma-informed, evidence-based interventions to support children experiencing mental health symptoms brought on by trauma. Doughterty et al. (2022) further advocate for establishing a government-funded trauma service program offering free trauma-informed, evidence-based training to mental health practitioners to diagnose and treat children exposed to trauma, based on a model established in the US. In their research, Wekerle et al. (2022) found that Indigenous participants emphasized acknowledging the historical and ongoing trauma affecting the Indigenous community in their online education modules for training healthcare and social service providers. The scholars also recommend that the training of healthcare and social service providers incorporate an intersectional lens that can be used while working with service users.
Some scholars call for integrated supports for mothers and children. Kulkarni (2019) notes that survivors of FV continue to request FV-informed counselling for the entire family, especially when women choose to remain with their partner or need to interact with their partner as a co-parent. Sullivan (2021) highlights the importance of support professionals offering all available information to mothers experiencing FV so they can make the most informed choices for themselves and their children. Thiara and Humphreys (2017) argue for ongoing support for mothers and their children after leaving an abusive situation, as their relationship will most likely be strained due to the impact of FV.
Callaghan et al. (2018) emphasize the importance of listening to children who have experienced FV and allowing them the space to enact their agency and develop coping strategies. Noble-Carr et al. (2020) found that children exposed to FV coped with their experiences in various ways, depending on the family’s level of disadvantage and access to support. In other words, children exposed to FV are a heterogeneous group who require individualized services that address their needs within their specific contexts.
Historical Evolution of Divorce Legislation in Canada and Ontario
The Constitution Act, 1867 divides the legislative responsibility for family law in Canada. Divorce is exclusively the jurisdiction of Parliament (including corollary matters such as support and custody), while property and civil rights are within the jurisdiction of provincial legislatures. Provincial legislation in the area of family law covers the matters related to the separation of married or unmarried couples, including support and parenting in cases where no divorce is sought, property division, enforcement of support and other issues, including adoption, child protection, and name change. Because of the overlapping federal-provincial family law jurisdiction, most reform initiatives are developed through coordinated federal-provincial-territorial efforts. In spite of this, provincial family laws across the country differ significantly.
The Divorce Act of 1968
The Divorce Act of 1968 established uniform Canada-wide divorce law through federal legislation. The Act aimed to reflect significant social changes, such as gender equity, and introduced the concept “no fault” divorce (Douglas, 2001), while also retaining fault-based grounds for divorce.
1985 and 1997 amendments
Subsequent amendments to the Divorce Act in 1985 and 1997 entrenched child-centred reforms to minimize the harmful impact of separation and divorce on children (Bala, 2020; Payne, 2018). Women’s rights advocates also recommended shaping legislation to promote gender equality and address the economic impact of marriage breakdown on women and children (Canadian Advisory Council on the Status of Women, 1980).
Section 16(9) of the 1985 version of the Divorce Act specifically precluded the consideration of the past conduct of a parent in making a custody or access order unless that conduct was relevant to the person’s ability to act as a parent to the child. This provision was intended to prevent evidence about marital misconduct (adultery) from entering into the court’s consideration of custody and access. However, this provision was also cited to support the proposition that one spouse’s violence against the other did not indicate anything inappropriate or negative about the former’s parenting, and that only violence directed toward the child was relevant. However, it is now recognized that FV and other forms of abuse witnessed by children do have an impact on their well-being and should be considered relevant in determining parenting abilities.
Bill C-78: Reforms to Canada’s Divorce Act
The reform of Canada’s Divorce Act and Ontario’s CLRA that came into effect in March 2021 clarifies the legal test of the best interests of the child for parenting orders, including consideration of the child’s views and whether a parent supports and encourages the child’s relationship with the other parent (Bala, 2020; Government of Canada, 2023). The Act implicitly entrenches the goal of maintaining a child-parent relationship unless detrimental to the child (Archer-Kuhn, 2018b; Bala, 2020). The legislation also expects parents and legal advisors, where appropriate, to seek a non-court process to resolve family law disputes, recognizing that this may not be appropriate where family violence is a concern. The Act replaces the terms custody and access with the child-focused terms parenting time and parental decision-making. The Act also requires screening for FV “in the context of parenting disputes and make protection of the safety and wellbeing of the child a ‘primary consideration’” (Bala, 2020, p. 46).
Upholding children’s rights and ascertaining children’s views
Canada signed the United Nations Convention on the Rights of the Child in 1990 (United Nations, 1990) and ratified it in 1991 (Martinson & Tempesta, 2018; Tempesta, 2021). Thus, Canada must ensure that laws and legal decisions affecting children make children’s rights a primary consideration (Martinson & Tempesta, 2018). The UNCRC is a critical factor in maintaining the child’s best interest, central to the 2019 amendments to the Divorce Act and the only consideration for parenting decisions under the Divorce Act (Government of Canada, 2023).
S. 16(3)(e) of the Divorce Act now specifies that in making a parenting plan, parents, professionals, and the courts “shall” consider “the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.”
In the Best Interest of the Child: Factors considered in the case of family violence
While the concept of the Best Interest of the Child has influenced parenting decision-making from the 1970s onward, the language was not added to Canada’s Divorce Act until 1985. With this shift, judges found the complexities of applying the test challenging (Mnookin, 2014). Children are unlikely to participate in court proceedings (Archer-Kuhn, 2016), and child judicial interviews are rare due to concerns about shielding children from direct involvement in the demise of their parent’s relationship (Sullivan, 2021). Consequently, Ontario family court judges have increasingly ordered family assessments by a third party, usually a trained psychologist, social worker, or child legal representative, to inform their decisions regarding parenting orders.
In the famous Young v Young case, the Supreme Court of Canada interpreted the Best Interest of the Child. Justice L’Heureux‑Dubé stated that the best interests of the child is a child-centric analysis and “is the positive right [of the child] to the best possible arrangements in the circumstances of the parties” (Young v. Young, para. 102). The test is contextual and future-focused, encompassing a myriad of considerations. It is “person-oriented” rather than “act-oriented,” requiring consideration of the “whole person viewed as a social being” (para 71).
In the recent amendments to the Divorce Act that came into effect in March 2021, a new section titled “Best Interest of the Child” was added, replacing the old S. 16 of the Act and requiring the courts to consider only the best interests of the child in parenting decision-making. These amendments include enumerated criteria of Best Interest and require that the courts prioritize the child’s safety, security, and well-being.
The amendments (Parliament of Canada, Bill C-78, 2019) direct the courts to consider FV and its influence in ensuring the child’s best interests (Government of Canada, 2023). The following factors regarding the best interests of the child are taken into consideration in situations of FV:
Section 16(4), Divorce Act: Factors relating to family violence
(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.
The Divorce Act now requires FV to be considered a factor in determining the best interests of the child. As a result of s. 16(4)(g), the courts are required to consider what steps a perpetrator or person engaging in the FV has taken to prevent further FV from occurring.
For over a decade, FV researchers have identified safety as a priority in deciding the best interests of the child in FV and high conflict cases (Lucas-Thompson et al., 2020). “High conflict” is a term that applies to separation/divorce cases where one or both parents exhibit high degrees of discord, including anger at and blame of the ex-partner, undermine the ex-partner’s parenting and parenting time, and reduce their capacity to cooperate on parenting issues in a child-focused manner (Bauserman, 2002; Johnston, 2000).
Coercive, controlling violence is when the abusive party engages in a pattern of coercive behaviour directly targeting the other parent’s capacity to make independent decisions through tactics of physical abuse, degradation, intimidation, threats, and isolation to gain and maintain control of their partner (Kelly & Johnson, 2008). Indicators of coercive, controlling violence are relevant in a family law context because the abuse is part of an ongoing pattern that will likely continue, and the children could become a means for a controlling person to intimidate their former partner throughout the divorce proceedings (Government of Canada,2023). In other words, a parent who uses tactics to maintain power over their former partner might focus on pursuing care of the children to control or punish the other parent rather than focusing on the children’s needs (Elizabeth, 2017).
Professionals working with women and children affected by FV stress that separation and divorce are risk factors as the violence continues and can escalate. The separation and divorce process may become a new venue for violence, threats, and intimidation (Archer-Kuhn, 2018a; Elizabeth, 2017). Researchers and mental health professionals working with FV cases assert that shared parenting/shared decision-making exposes women and children to further risk in cases where the other spouse has a history of coercive control (Jaffe, 2014).
The Compounded Impact of Systemic and Structural Violence
Galtung (1969) defined systemic and structural violence as “violence [that] is built into the structure and shows up as unequal power and consequently as unequal life chances” (p. 171). The structures are violent because they result in a greater risk of harm, illness, injury, and death to a class or group of people (Rylko-Bauer & Farmer, 2017).
Structural and systemic violence such as living in poverty or an extreme precarious situation such as with scarce food and clothing on a regular basis, growing up in poor neighbourhoods and living with the fear of being attacked, fear of accessing services based on racial identity and lack of availability of culturally informed services, compounds victims’ lives as additional trauma (Rylko-Bauer & Farmer, 2017). While some parenting studies have included racialized participants, explorations of the intersection of racialization and immigrant status are rare (Overlien, 2017). Community workers and scholars working with racialized families challenge mainstream feminist approaches to FV which are based primarily on the needs of white, middle-class women and may misidentify specific forms of violence and their impact as well as specific needs of marginalized women and their families (George et al., 2022; Kulkarni, 2019). Scholars and community workers working with South Asian women recommend critical analysis of uninterrogated assumptions in research, such as attributing FV in racialized immigrant families due to their culture (George & Rashidi, 2014; Razack, 2003; Volpp, 2011). Culturalization scripts about immigrant norms and traditions construct frozen, one-dimensional portrayals of immigrant families leading to the perpetuation of harmful stereotyping by professionals and the erasure of survivors’ experiences (Volpp, 2002). Using Crenshaw’s (1991) concept of intersectionality and interlocking oppression, Kulkarni (2019), Razack (2003), Thobani (2000), and Volpp (2002, 2011) identify a need to reconceptualize FV in immigrant families who experience multiple, interlocking forms of violence. Such analyses are crucial for working effectively with racialized families and dismantling policies and practices that create unnecessary suffering from unnecessary complications.
As we can see in the literature review, few studies focus on children’s voices and none on racialized children’s voices. Our research fills this gap in knowledge by providing insights directly from the voices of racialized immigrant youth who experienced FV in their childhood. Because parents may be unaware of the scope and impact of their child’s experiences of violence, it is critical to ground research in children’s perspectives (Overlien, 2010). This study explores participants’ experiences and interpretations of FV and the impact of those experiences on their lives. It explores their experiences of accessing institutional supports and gathers recommendations on the supports needed for children experiencing FV. Lastly, the research critically examines FV as it impacts the Best Interest of the Child principle.
