Series: Changes to the Divorce Act of Canada – Family Violence
This is the third in a series of posts covering amendments and updates to the Divorce Act of Canada that come into effect March of 2021. Our previous post in the series, New Relocation Provisions can be found here.
Family violence is a devastating reality for many Canadians which may contribute to, or result from, a breakdown of a family unit. The effects of family violence may be exacerbated during a separation or divorce and can have a profound and lasting effect on children. Children who are exposed to violence are at a high risk of emotional and behavioural problems throughout their lifespan which can include, post-traumatic stress disorder, depression, low educational achievement, difficulties regulating emotions and chronic physical diseases. Previously, the Divorce Act was silent on this very important issue. Further, the Divorce Act did not address the fact that in some cases, families may be involved with many different aspects of the justice system.
The amendments to the Divorce Act impose a duty on the Court to consider the existence of any civil protection, child protection or criminal proceedings or orders that involve the parties that are pending or in effect and that are relevant to the safety, security and well-being of a child. For instance, a family court may not be aware of a criminal order or civil protection order, which prohibits contact or communication between the parties, which may result in inconsistent orders, difficulty enforcing the orders and potential safety issues. Rather than relying solely on the information provided by the parties, a Court is required to ask the parties about such orders or proceedings and may review information that is readily available, including a court search. This creates a broader duty on the court that will allow parties to present all evidence that is relevant to the child’s safety, security and well-being in the court.
These upcoming changes rectify this situation to ensure that the family court can, and will, have all of the relevant information about the parties and their unique situation.
The Divorce Act defines family violence as any conduct that is violent, threatening or a pattern of coercive and controlling behaviour, or that causes a family member to fear for their safety. This includes a child’s direct or indirect exposure to such conduct. The definition is broad and includes a non-exhaustive list of examples that include physical, psychological, financial abuse and the harming or killing of an animal. The new definition is expanded to include not only violent acts, but a child’s exposure to such acts.
To assist the Courts in determining the impact of family violence, the following are specific factors and criteria that may be considered:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
The inclusion of these factors in the amended Divorce Act help to bring the issue of family violence to the forefront and provide guidance and a framework to the court to utilize when considering a child’s physical, emotional and psychological safety, security and wellbeing. The best interests of the child criteria is paramount when a court is considering making a parenting or contact order when there is a risk of exposure or exposure to family violence.