Building consistency

notepad, pen and a cup of coffee on a desktop

Canada’s Constitution Act, in sections 91 and 92, clearly sets out federal and provincial jurisdiction over different aspects of family law. The feds handle divorce, including any corollary issues such as parenting arrangements, child and spousal support and division of property raised in the context of an application for divorce. To provincial – and, by extension, territorial – governments goes everything else: essentially, the above issues where the parties are not seeking a divorce, whether married or not, as well as safety-related issues such as restraining/protection orders and orders for exclusive possession of the matrimonial home. 

This likely made sense in a time when people tended to stay where they started; but we now live in a world where people travel and move around the country and the globe. Family law systems that offer different remedies from jurisdiction to jurisdiction can be challenging under these circumstances. 

While this can pose difficulties for anyone dealing with a relationship breakdown, it is potentially dangerous for a woman leaving an abusive relationship because the differences can create serious gaps in her ability to keep herself and her children safe. 

Using the recent revisions to the Divorce Act as inspiration, now seems like a good time to push for increased consistency in family laws and their enforcement across the country. This will assist survivors of intimate partner violence (IPV) and gender-based violence (GBV), regardless of where they live or their family status, to have access to equitable protections under family law. 

Best interests of the child test and family violence 

The Divorce Act, and some provincial legislation like Ontario’s Children’s Law Reform Act, provide a detailed list of factors for courts to consider when determining the best interests of children, as well as an expansive definition of family violence to assist them in making decisions about parenting arrangements. 

Past tragedies have taught us that, in cases of family violence, the law and courts must assume the worst of the abuser, both during the court proceedings and after they are over. Survivors of IPV and their children will have greater safety, and enforcement of orders across provincial/territorial borders will be easier if the best interests language and definition of family violence are consistent in all jurisdictions. 

Restraining/protection orders 

A woman who lives in Ontario and is fearful of her former partner, who has been aggressively stalking her since they separated, can seek a restraining order to prohibit him from having any contact with her. This is an order of the provincial court, enforceable in Ontario. If she travels to another province to visit family or on vacation and her ex-partner follows her, she no longer has the protection she had in Ontario.  

(If you think this is an exaggerated scenario, talk to any Family Court Support Worker or counsellor in a women’s shelter, who will tell you that a persistent and coercively controlling abuser will do almost anything – including following his former partner to another province —  in his attempts to maintain power and control over her.) 

A woman may move to another province to put some distance between herself and her ex, for employment or to have the support of her family, in which case – if she wants the same protection she had with her Ontario restraining order – she will need to find a new lawyer and start a new case. That’s a lot to add to the to-do list associated with any move, and is even more of an issue for someone who is dealing with trauma and fear associated with both past and anticipated abuse. 

If we were to standardize the approach to restraining/protection orders – maybe starting by calling them the same thing in all parts of the country – and take the necessary steps to ensure enforceability across provincial/territorial borders, women and their children would be safer. 

Exclusive possession 

Most provinces and territories treat married and common-law relationships differently in terms of property division and the ability of one partner to obtain an order for exclusive possession of the matrimonial home.  

Because of popular misconceptions about these laws — “we’ve living together for X years, so it’s the same as being married”– many people living common law are shocked to discover their lack of rights when their relationship comes to an end. Victims of IPV are especially vulnerable, especially if the family home is owned or leased in the name of their partner. In our work at Luke’s Place, we see far too many women who find themselves and their children abruptly  unhoused for this very reason. 

Some provinces have eliminated the distinction between married and common-law relationships, at least with respect to exclusive possession orders, which further complicates matters. In Ontario and Nova Scotia, for instance, a common-law partner cannot make a claim for exclusive possession; but in British Columbia and Alberta, she can. 

It’s time for all jurisdictions to end this difference; first, with respect to exclusive possession, but then with respect to property division as well.  

I’m not suggesting that making these changes will be easy but, as the National Action Plan on Violence Against Women and Gender-Based Violence (https://nationalactionplan.ca/wp-content/uploads/2021/06/NAP-Final-Report.pdf) points out in its recommendation for harmonization of family laws and their enforcement, it’s what we have to do to ensure that survivors of IPV and their children can be safe and have equitable access to justice. 

This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.