Changes to the Divorce Act: What it can mean for women

Changes to the Divorce Act: What it can mean for women

In the final dash to get legislation passed before Parliament recessed for the summer, only to head straight into an election campaign in the fall, some important bills managed to make it to Royal Assent.

Any bills that did not pass Third Reading in the Senate and obtain Royal Assent by last Friday are now dead. Following the election, they can be reintroduced, if the government of the day cares to do so, but they must start over at the beginning of the lengthy parliamentary process.

Bill C-78

One of the bills to obtain Royal Assent is Bill C-78; An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act.

C-78 proposed major amendments to Canada’s Divorce Act. Luke’s Place and NAWL made a submission [LINK] to the House of Commons Standing Committee on Justice and Human Rights on the Bill at Second Reading.

At this point, the Bill’s progress slowed down, however, it eventually reached Third Reading in the Senate just days before Parliament began its summer recess.

I am very happy to say that, following the report and recommendations of the Senate Committee on Legal and Constitutional Affairs, Bill C-78 passed Third Reading on June 18th and received Royal Assent on June 21st.

Family violence and the Divorce Act

While women’s equality and violence against women organizations felt the Bill could have been stronger, especially with respect to provisions related to family violence, most of us believed that, even without revisions, the Bill offered significant improvements over the existing Divorce Act. We were also concerned that, with no guarantee that the election will see a return of a Liberal majority, any subsequent bill amending the Divorce Act could fall under the sway of fathers’ rights organizations.

For this reason, when we were asked to testify before the Senate Committee in June, we briefly summarized our concerns, but urged the Senate, in the strongest possible terms, to pass the Bill.

It is clear that our comments had an impact. In its report, the Senate Committee noted:

The committee is mindful that with the pending dissolution of Parliament, there is insufficient time to make the amendments to the bill that would clarify its interpretation. . . Given the importance of passing this bill into law, and the consensus among witnesses that this should happen as soon as feasible, the committee has chosen to make the observations set out below instead of amending the bill.

The report goes on to discuss the importance of acknowledging the gendered reality of family violence, and references the Brief submitted by Luke’s Place and NAWL critiquing this absence. It encourages family law practitioners to “take into consideration the potential consequences of awarding parental responsibilities to a perpetrator of family violence.”

A major concern many of us had with Bill C-78 was its ongoing entrenchment of the concept of “maximum contact” between a child and both parents which, in cases of family violence, can leave the door open for an abuser to continue his coercive control long after the end of the relationship.

We were not able to persuade the House of Commons to remove this provision from the Bill, but the Senate Committee’s report has supported the current Minister of Justice’s commitment to replace the wording of “Maximum parenting time” with “Parenting time consistent with the best interests of the child.”

The committee report spoke to another of our issues — the importance of universal family violence screening for family law professionals:

The committee invites the federal government to collaborate with provincial and territorial governments to ensure awareness of the main changes introduced by Bill C-78, including the proper use of family violence screening tools for legal practitioners that the Department of Justice is currently developing in collaboration with key partners such as Luke’s Place.

Of course, new laws are only as good as those charged with interpreting and implementing them. In our Brief, we raised the importance of judicial education to ensure that the new family violence provisions would be taken seriously by judges.

The Senate Committee seems to share our position; its report

respectfully invites the Canadian Judicial Council to incorporate issues relating to intimate partner violence, gender-based violence and the unique circumstances of Indigenous women in the design of its judicial education seminars on family law.

Last but not least, the committee proposed the establishment of an independent body of experts to assist with ongoing review of the Divorce Act.

This is a victory for women

Bill C-78 as passed into law does not contain every revision proposed by women’s equality/violence against women advocates. Nonetheless, the new Divorce Act will offer women fleeing abuse greater protection than that offered by the present law.

The comments made by the Senate Committee on Legal and Constitutional Affairs, coupled with the ongoing presence of Independent Senators, ensure that important issues we raised during this process will not be forgotten.

A longer version of this article was first posted on the blog of our Legal Director, Pamela Cross.

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