Bill 207, the Moving Ontario Family Law Forward Act, received royal assent on Nov. 20. In all likelihood, these revisions to the Children’s Law Reform Act (CLRA) will come into effect on March 1, 2021, the same date that similar revisions to the federal Divorce Act are implemented.
There is much that is good about this piece of law reform for women leaving abusive relationships. In particular, women turning to the CLRA to resolve parenting disputes with their former partner will benefit from the extensive and inclusive definition of family violence, which will now appear directly in the best interests of the child test.
As in the Divorce Act, the new definition in the CLRA uses the language of coercive and controlling behaviour and includes sexual, psychological and financial abuse as well as threats of or actual harm to animals among the behaviours that are considered to be family violence. It also makes explicit that conduct need not constitute a criminal offence for it to be considered in a family law proceeding.
These are important changes. For too long, women have struggled to have family courts acknowledge non-physical abuse when, in fact, it is often the less visible coercive controlling abuse that is more insidious, especially after separation.
It may be more difficult, for instance, for an abuser to continue physically assaulting his partner once they have separated, but it is all too easy for him to maintain power and control over her through stalking, tech abuse or legal bullying. He may send her threatening or triggering text messages, post embarrassing and private information or images of her online or use the children to spy on her; all of which can have a devastating impact on her emotional well-being and make it very difficult for her to engage effectively in the family law process.
Unfortunately, it has not been uncommon for courts to respond dismissively to non-physical abuse generally, but especially to abuse that does not constitute a criminal offence.
Those of us who work with survivors of family violence welcome these changes and anticipate more positive outcomes for some of our clients as a result.
However, we are concerned that some of the changes may be problematic for families where there has been a history of coercive controlling abuse.
The language about decision making is vague and creates an opportunity for an abusive partner to manipulate the intention of the legislation in order to intimidate and control the child’s other parent. It would have been more appropriate had the wording explicitly stated that the non-primary decision maker may only make day-to-day decisions that do not conflict with decisions being made by the primary decision maker.
Women with abusive partners will be challenged by the best interests factor that looks at the willingness of each parent to communicate and co-operate with the other. This is not realistic for a woman whose every encounter with her former partner is emotionally dangerous. Nor is it realistic, as another factor sets out, for her to be willing to support the child’s relationship with the other parent.
As Ontario moves towards implementation of the revised CLRA, two additional measures would further enhance the safety and well-being of women and children fleeing abuse.
Family law practitioners should be mandated to screen for family violence at the beginning of every case. Not all women disclose abuse. Without a universal screening process, the lawyer is not necessarily aware of important abuse issues, which means they may not take the proper steps to assist their client with accessing the appropriate services, safety issues may go unaddressed and, more generally, the lawyer’s advice may not speak to what the client most needs in terms of legal process and outcomes.
Interpreting the best interests factors appropriately and giving due weight to the consideration of family violence requires a high level of education about the nuanced reality of violence within families.
All those involved in the family law/court system should be required to participate in family violence education in order to ensure they can interpret the new legislation appropriately and use screening tools effectively.
Survivors of this kind of violence — whether adults or children — deserve no less.
This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.