Will Canada’s new Divorce Act keep women and children fleeing abuse safe? The pros – Part 1/3

As we continue to find our way through the strange new world of life in a pandemic, it is easy to lose sight of things that seemed important to us just a few months ago. The significantly revised Divorce Act, passed by the federal government in June 2019 and coming into effect on July 1, 2020, is one example of how our priorities have shifted; despite it having been front of mind for me and no doubt many of you for the past couple of years, I have barely thought about it since early March.

Whether we will be marking Canada with a backyard barbecue for members of our household only or, possibly released from the five-person limit on social gatherings, be enjoying the day in a public park with neighbours and friends remains to be seen.

Either way, on July 2nd, family law in this country will wake up to a new reality, at least for those who turn to the Divorce Act to resolve the issues that arise when their marriage comes to an end.

In this three-part article, I will examine the pros, cons and gaps of the new parenting arrangement provisions of the Divorce Act through the lens of family violence.

There’s lots that good about the Divorce Act revisions

The clearly enumerated factors to guide courts in determining the best interests of the child mark a significant improvement. Of particular importance in the context of family violence is the requirement of the court to give “primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”

Among the listed criteria to be considered by the courts when making parenting decisions is the history of violence which, when coupled with the expansive definition of family violence elsewhere in the statute, will be very helpful to people who wish their parenting orders to reflect the fact that their spouse has been, and may still be, abusive.

Some of the criteria, however, cause concern in situations of family violence, which will be discussed in part two of this article.

Definition of family violence

The present Divorce Act makes no mention of family violence in the provisions dealing with custody and access. As of July 1st, the legislation will contain a broad and inclusive definition:

“any conduct, whether or not that conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct.”

The definition then provides a detailed but non-exhaustive list of behaviours than are to be considered family violence, including some tactics such as sexual, psychological and financial abuse as well as abuse of animals, that are not always given the weight that they warrant in decisions about parenting arrangements.

Recognition of coercive and controlling behaviour

When considering family violence, the courts are to take into account a number of factors including the frequency and timing of the abuse, whether there is a pattern of coercive and controlling behaviour, the extent to which children are involved or exposed to the violence, fear on the part of the victims and any safety implications for children or other family members.

The inclusion of the phrase “a pattern of coercive and controlling behaviour,” along with the acknowledgement that the conduct does not have to constitute a criminal offence in the definition, along with the factors the court is to consider will be of great assistance to those whose partners engage in extremely dangerous behaviours that are not physical, do not fit within any of the offences in the Criminal Code and are often invisible to outsiders.

Those of us who work with survivors of family violence welcome the enumerated factors in the best interests of the child test, the detailed and nuanced definition of family violence and the factors courts are to take into account when considering family violence in the context of deciding on parenting arrangements. All of these additions to the Divorce Act will increase access to justice and have the potential to lead to better outcomes for those we serve.

There are, however, some concerns about the changes to the Divorce Act, which I will discuss in part two of this three-part article.

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