Will Canada’s new Divorce Act keep women and children fleeing abuse safe? The cons – Part 2/3

While the amended Divorce Act will, without question, materially improve the situation of those fleeing abuse (if they use the Divorce Act to resolve parenting issues), it is not perfect.

This article explores two criteria in the best interests test, the decision-making provisions and the emphasis on out of court dispute resolution, all of which many of us who work with survivors of family violence see as potentially problematic.

Two criteria in the best interests of the child test will pose challenges to people with abusive partners.

Supporting the child’s relationship with the other parent

Courts are to consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent. Often, a parent who has survived family violence has serious and legitimate concerns about the other parent’s capacity to parent appropriately.

This criterion is, in effect, a presumption that it is always better for children to have a close relationship with both parents. While this is the ideal, it may not be the reality where one parent has been abusive to the other. Even without this provision, the best interests test in its totality provides ample opportunity for both parents to put forward evidence about their parenting capacity. Including it puts undue pressure on those with concerns about their children’s safety when in the care of their abusive ex-partner

Communicate and cooperate with the other parent

The best interests test also requires the court to consider the ability and willingness of each parent to communicate and cooperate, especially with one another, on matters affecting the child. This provision obscures the realities of family violence and, albeit unintentionally, risks endangering both survivors and their children.

The complexities and pervasiveness of the impacts of both past and ongoing violence do not end simply because divorce proceedings begin. The evidence is clear that violence often intensifies in the months following a separation, making them the most lethal for many who have left the abusive relationship.

Consequently, requiring that someone continue to communicate and cooperate with an abusive spouse is not only inappropriate, it is dangerous, and potentially lethal. Nonetheless, a parent who is legitimately incapable of or unwilling to cooperate with their abusive spouse is frowned upon by the courts and may even lose custody of the children to the other parent. Therefore, cooperation and communication provisions need to be flexible and clearly indicate that they may not be appropriate and should not be required in cases where there has been any history of family violence.

Decision-making provisions

Also of concern in the context of family violence are the new decision-making provisions.

Briefly put, the parent with decision making responsibility has the authority to make the significant decisions about the child’s life and well-being, including decisions related to health, education, culture, language, religion and spirituality and significant extra-curricular activities. This responsibility can be given to one parent or shared between the two parents.

Whichever parent the child is with at a given time has the authority to make decisions during that time. While the intention is that those decisions be related to the situation at hand as well as emergency situations that could arise, the language is not as clear as it could be.

This will lead to challenges for people who have left an abusive relationship. For instance, an abusive ex could decide not to take the child to a swimming lesson or not to give the child medication, claiming they have the right to make the decision because the child is with them, even though the other parent has primary decision-making responsibility.

It would have been helpful if the legislation had included a clause clarifying that day-to-day decisions cannot conflict with decisions made by the parent with decision-making responsibility.

Alternate dispute resolution

ADR (alternate dispute resolution), called family dispute resolution (FDR) in the Divorce Act,  can work well even in situations of family violence, and it is an important option for families to have available to them. Some of those leaving abusive relationships find these processes empowering and/or better suited to their needs for a variety of reasons.

However, the requirement that lawyers “encourage” the use of FDR, even with the moderating clause “unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so,” favours FDR over litigation in a way that is not appropriate for situations involving family violence. FDR, especially in cases of coercive controlling violence can provide abusive partners with an opportunity to manipulate and continue being abusive.

The new Divorce Act would better serve these families if legal advisors were required to inform spouses about all processes available to them, without positioning one of them ahead of the others.

Parts one and two of this article have explored some of the pros and cons of the revised Divorce Act. Part three will look at the gaps.

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