Family Violence and Custody in New Brunswick: How Courts Protect Children

Family violence changes everything about how custody decisions are made in New Brunswick. When violence is present — or has been present — in a family, courts are legally required to centre the safety analysis above all other parenting considerations. The 2021 amendments to both the federal Divorce Act and New Brunswick's Family Law Act made this explicit: family violence is not just one factor among many. It is a mandatory, threshold consideration that can override presumptions of shared parenting time and joint decision-making.

How the Law Defines Family Violence

Under the Divorce Act and the Family Law Act, family violence is defined broadly. It is not limited to physical assault. The statutory definition encompasses:

• Physical abuse: hitting, pushing, restraining, or any use of physical force against a family member
• Sexual abuse: any form of sexual coercion or assault
• Psychological and emotional abuse: intimidation, controlling behaviour, isolating a partner from family and friends, gaslighting, or chronic verbal degradation
• Financial abuse: controlling access to money, preventing a partner from working, running up debts in a partner's name, or withholding financial support as a means of control
• Threats: threats to harm, kill, or harm oneself as a form of coercion
• Harassment and stalking: persistent unwanted contact, monitoring, or surveillance
• Destruction of property and killing or harming pets as intimidation
• Exposure of children to violence: a child witnessing any of the above is itself considered a form of family violence under the statute

This broad definition matters because courts are not limited to looking at whether someone was physically hit. Patterns of coercive control — financial manipulation, emotional degradation, social isolation — carry real weight in parenting decisions, even when there are no police reports or criminal charges.

How Courts Assess Family Violence in Parenting Decisions

When family violence is raised in a parenting proceeding, the court must conduct a specific, multi-factor analysis as part of the best-interests-of-the-child determination. The court examines:

The nature, severity, and pattern of the violence. A single incident is assessed differently from a sustained pattern of coercive control. Courts look at whether the violence escalated over time, whether it was directed at the child or at the other parent, and whether it occurred in front of the child.

The direct and indirect harm to the child. Direct harm includes physical injury to the child. Indirect harm includes the psychological trauma of witnessing violence, living in a climate of fear, or being used as a tool of manipulation between parents. Research consistently shows that children exposed to family violence suffer long-term effects on emotional regulation, attachment, and academic performance — and New Brunswick courts take this evidence seriously.

Whether the abusive parent can safely meet the child's needs. Courts assess whether the parent has acknowledged the violence, completed rehabilitation programs, and demonstrated sustained behavioural change. A parent who minimizes, denies, or blames the victim for the violence is unlikely to be entrusted with unsupervised parenting time.

Whether cooperative parenting is feasible. Joint decision-making and shared parenting time require functional communication and mutual respect between parents. When one parent has used violence to control the other, the power imbalance makes genuine cooperation impossible. Courts will not impose a shared parenting arrangement that forces a victim into ongoing contact with their abuser under the guise of co-parenting.

The existence of protective measures. Courts look at whether Emergency Protection Orders, peace bonds, restraining orders, or criminal no-contact conditions are in place — and whether they've been complied with or breached.

Protective Measures Courts Can Order

When family violence is established, courts have broad discretion to structure parenting arrangements that protect the child and the victimized parent:

• Sole decision-making responsibility granted to the non-abusive parent, removing the abusive parent's authority over major decisions about the child's health, education, and upbringing
• Supervised parenting time, requiring all contact between the abusive parent and the child to occur in the presence of a professional supervisor or at a supervised access centre
• Supervised exchanges, where the child handoff occurs at a neutral, public location or through a third party to prevent direct contact between the parents
• Restrictions on communication, limiting the abusive parent to written communication through a co-parenting app or email, with no direct phone calls or in-person contact
• Geographic restrictions, prohibiting the abusive parent from removing the child from the province
• Passport surrender, requiring the abusive parent to hand over the child's passport to prevent international abduction
• No overnight stays, limiting the abusive parent to daytime-only parenting time

These restrictions can be temporary (pending further assessment) or built into the final parenting order. Courts can also order the abusive parent to complete specific programs — anger management, substance abuse treatment, or a domestic violence intervention program — as a condition of any parenting time.

The "Friendly Parent" Factor and Family Violence

One of the best-interests factors courts consider is whether each parent supports the child's relationship with the other parent — sometimes called the "friendly parent" principle. In family violence cases, this factor must be applied carefully.

The law explicitly recognizes that a parent's refusal to facilitate contact with an abusive parent is not evidence of being an "unfriendly" parent. A protective parent who restricts contact due to genuine safety concerns is acting in the child's best interests, not undermining the other parent's relationship. Courts are directed to avoid penalizing victims for taking protective action.

Mediation Is Not Appropriate in Family Violence Cases

Standard family mediation assumes that both parties can negotiate on relatively equal footing. When one party has used violence to control the other, that assumption is fundamentally broken. A victim negotiating across a table from their abuser — even with a mediator present — cannot freely advocate for their interests or their child's safety.

New Brunswick courts recognize this limitation. While mediation is encouraged as a first step in most family law disputes, it is explicitly inappropriate in cases involving family violence. Parents in these situations should proceed directly through the court process, where a judge has the authority to impose protective terms.

Getting Help

If you are experiencing family violence, these resources are available in New Brunswick:

• 911 for immediate emergencies
• Transition houses provide safe shelter, crisis counselling, and safety planning for parents and children fleeing violence
• Family Law Information Centres (FLICs) in Saint John and Moncton offer free procedural guidance for navigating the court system
• Legal Aid New Brunswick provides representation for qualifying parents in family violence cases

The New Brunswick Child Custody & Parenting Plan Guide includes safety-focused planning templates — supervised access protocols, exchange logistics for high-conflict situations, and communication frameworks designed to minimize direct contact between parents — that help you build a structured, protective parenting arrangement to present to the court.

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