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

smiling girl hugging mother

The revised Divorce Act, coming into effect on July 1, 2020, offers both pros and cons for survivors of family violence. The pros outweigh the cons, and create the potential for parents who have left an abusive relationship and who use the federal statute to establish parenting arrangements to be better served by the law than they have been to date.

However, there are some significant gaps between the strengths of the legislation and its optimal implementation and interpretation.

Family violence education

Harmful myths and misconceptions about the realities and dynamics of family violence still influence family law processes and decisions. Without education on family violence and gender equality as well as on the amended Divorce Act for everyone involved with family law – court staff, assessors, mediators, lawyers, judges — even the positive changes will have limited effectiveness.

The starting point needs to be law schools: no student should graduate without at least an introductory level course on family violence regardless of what use they plan to make of their law degree.

That education needs to be supplemented with ongoing professional development opportunities and requirements to ensure that family law practitioners, in particular, are well versed in the knowledge and skills they need to provide high quality services to both survivors of abuse and those who perpetrate it.

To this end, the mandatory domestic violence training implemented over the past several years by Legal Aid Ontario for all of its staff, including staff lawyers as well as lawyers on the domestic violence panel could serve as an excellent model.

Family violence screening

To help ensure that courts have the information they need to make appropriate decisions relating to parenting arrangements, universal screening for family violence by all family law practitioners should be made mandatory.

For a number of reasons, not all survivors of family violence self-disclose. If the survivor doesn’t tell and the practitioner doesn’t ask, the presence of family violence may never be brought up. This will affect the legal advice provided by the lawyer, the process options considered by the client and may affect the safety – in both the short and long-term – of both parent and children.

While access to legal representation is obviously not the responsibility of the Divorce Act itself, this commentary would not be complete if it did not mention the lack of such access for many of those involved in the family law process. Without lawyers, people cannot put their best case forward. Survivors of family violence, whose partners may be engaging in post-separation abuse and legal bullying, are at particular risk of being harmed during their family court process and/or emerging from it with poor outcomes.

Not everyone has access to the Divorce Act

Finally, the changes to the Divorce Act create a divide in some provinces and territories between what the law offers people who are married and seeking a divorce and those who are not.

As we move forward to work with the post-July 1st Divorce Act, it is important to remember that not everyone has access to it. In some parts of the country, there are significant differences between the federal and the provincial/territorial legislation. This has the potential to create a gap in access to justice for people based, in part, on their marital status and, in part, on their geographic location.

It is to be hoped that, over time, provincial and territorial legislation will be revised to mirror the positive changes made to the Divorce Act so that those people can access the potentially more positive outcomes it offers.


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