The first major change in decades to Canada’s Divorce Act came into effect March 1. They were initially set to go into effect in July 2020 but were delayed by the pandemic. The Act now includes a list of factors that courts must take into consideration when weighing the best interests of a child. Some of the new elements target their emotional wellbeing, particularly relating to family violence.
The change recognizes that violence is common during separation, and can have a long-lasting effect on children. Much of the violence comes from a loss or lack of control, so terminology used to describe parenting arrangements was also changed. The term “custody order” is now a more neutral “parenting order,” to discourage the idea of winners and losers in these decisions.
While judges have for some time taken violence into consideration when deciding on parental access, the change now means courts must consider within that framework sexual abuse, harassment or stalking, psychological abuse and financial abuse.
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The Department of Justice website defines family violence and lays out the changes and the reasons for them.
“Family violence,” it says “can happen to children and adults. It can be words, acts or even not giving someone the care they need. It may be a single incident, or a recurring pattern of behaviour. Family violence can happen before, during or after a couple separates.”
The Department acknowledges growing evidence that each type of violence has unique impacts and effects, and so to determine which parenting arrangement is in a child’s best interests, the courts must consider the particular nature and impact of the family violence, and whether co-parenting is appropriate or if it could lead to further violence, the Department of Justice website notes.
It identifies four types of intimate-partner violence, which are not exclusive of each other:
- Coercive and controlling violence: a pattern of emotionally abusive intimidation, coercion and control, often combined with physical violence
- Violent resistance: generally in response to coercive and controlling violence, and committed to protect oneself or another person
- Situational violence: generally due to an inability to manage conflict or anger in a particular situation, this violence is not necessarily associated with a general desire to control a partner
- Separation-instigated violence: ranging from minor to severe, this generally occurs around the time of separation and involves a small number of incidents.
Generally, it says, the most serious type of violence in family law is coercive and controlling violence — which is typically part of an ongoing pattern and which tends to be more dangerous and more likely to affect parenting.
In deciding on custody, the court will take into consideration that anyone who has parenting time, decision-making responsibility or contact must fulfill these duties in the best interests of the child
Another amendment requires parties not to expose children to conflict related to issues for the divorce. Recognizing that complete isolation during divorce is not possible, the parents are “required only to do their best” to prevent children seeing or experiencing the worst of it.
We need to recognize there are multiple ways that violence occurs within relationshipsDiane McInnis, family lawyer
Family law experts are pleased about the update.
Michael Saini, an associate professor of social work at the University of Toronto, told the CBC that “The new amendments will bring the federal legislation into better alignment with certain provincial legislation and create a unified legal framework across the country.”
He said “we now have family violence included in a national piece of legislation that must be considered when parents are separating — that alone is huge.”
And David Morneau, a non-practising family lawyer and the current executive director of the Child Witness Centre in Kitchener, Ont., said “The recognition of the nuances of what domestic violence [is] — this is a step in the right direction.”
Waterloo-based collaborative family lawyer Diane McInnis told the CBC that she agrees.
“My experience in the court process was a lot of the courts … would not hesitate to make a restraining order, say, if someone’s alleged violence. But they don’t like dealing with the messy stuff like, ‘This person coerced me into sexual activity when I didn’t want to.’
“In my feeling, a lot of it got swept under the rug. And the new legislation is saying, ‘No, we need to recognize there are multiple ways that violence occurs within relationships and we can deal with that when making other orders.”
Further detail about the changes to the Divorce Act and the reasoning behind it is available on the federal government’s website.