Divorce Act Amendments: Best interest of Children and Family Violence

All Canadian divorcing families are now subject to the new amendments to the Divorce Act which came into effect on March 1, 2021.

Most family law lawyers are delighted with the changes to the Divorce Act. I will break down some of the changes in small parts through a series of blog articles.

Unfortunately, family violence is prevalent. It is well documented that separation and divorce can increase an already violent relationship and the period following separation is the highest time of risk.

As stated on a federal government web site: “Family violence can have a profound effect on children. Children who are exposed to violence are at risk for emotional and behavioural problems throughout their lifespan, and these impacts are similar to those of direct abuse. Some of these consequences include post-traumatic stress disorder, depression, low educational achievement, difficulties regulating emotions and chronic physical diseases.”

The new Divorce Act also contains provisions to help judges have access to information about other court proceedings this family may be involved with, such as child protection matters or criminal matters.

A powerful amendment to the Divorce Act compels judges, lawyers, and mediators to consider whether there were incidents of family violence and how that impacts the best interest of the children. 

There was a recent trend towards giving both parents shared decision making powers over the children even in high conflict cases and despite allegations of domestic violence. However, several professionals working in family law opine that this trend may change if victims of family violence have better tools within the legislative and judicial system to resist sharing parental responsibilities with an abusive partner. 

Below are excerpts of information found on the Justice Canada web site which explain these new items well.

Examples of family violence

Here are some examples of family violence under the new Divorce Act:

• Physical abuse
  • Punching, slapping, kicking, shoving, dragging, choking, hair-pulling, biting, stabbing, locking someone in a confined space, holding or tying someone down

When people act to protect themselves or someone else, their actions are not considered family violence.

• Sexual abuse
  • Touching someone sexually without their consent, forcing someone to have sex or to perform a sexual act, making someone watch pornography, touching a child sexually, encouraging a child to touch themselves sexually
• Threats to kill or injure another person
  • Threatening to slap or punch someone, threatening to shoot someone
• Harassment and stalking
  • Calling, emailing or texting someone over and over, following or watching someone’s home or workplace, monitoring someone through apps, software or video cameras, tracking someone’s activities on social media
• Failure to provide the necessities of life
  • Not providing children with food, not letting someone get the medical care they need, taking away someone’s wheelchair
• Psychological abuse
  • Always yelling, criticizing or insulting someone; controlling someone’s time, actions, clothes, hairstyle, not letting someone see friends or family, not letting someone practice their religion or culture, sharing intimate pictures of a person without their consent or threatening to do so, threatening a person with contacting immigration authorities to have them removed from the country
• Financial abuse
  • Forcing someone to work or not letting them work, blocking someone from accessing their bank account, withholding money from someone or controlling how they spend it, incurring debts in someone’s name without their knowledge
• Threats to kill or harm an animal or damage property
  • Threatening to harm the family’s pet, threatening to burn down the family home
• Actually killing or harming an animal or damaging property

Coercive and controlling family violence

Coercive and controlling family violence is a pattern of abusive behaviour people use to control or dominate another family member. The controlling family member might use a combination of emotional, psychological, sexual, financial or other forms of abuse, such as choosing a partner’s clothing, controlling their money, or not letting them work or see friends. This abuse is also often combined with physical violence.

Coercive and controlling family violence is very dangerous. People who commit this type of abuse often continue or escalate the family violence after separation or divorce.

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Some forms of family violence are clearly criminal in nature, such as assault or sexual assault. In contrast, other forms of family violence, such as psychological abuse, such as ridiculing, constantly criticizing, or threatening deportation, are abusive in nature and are often a precursor to physical or sexual violence, but do not constitute criminal behaviour. All of these forms of family violence, however, are highly relevant to the family law context, and, in the context of the Divorce Act, they are particularly relevant to a determination about parenting and contact.

As knowledge about the scope of family violence has expanded, so has the understanding that not all violence is the same. Experts have identified at least four types of intimate partner violence: 

1. coercive and controlling violence: violence that forms “a pattern of emotionally abusive intimidation, coercion, and control coupled with physical violence against partners.” 
2. violent resistance: violence in response to coercive and controlling violence. The violence is generally a response to an assault and the objective is to protect oneself or another person.
3. situational (or common) couple violence: violence that is not associated with a general desire to control one’s partner, but to a particular incident or situation. It is generally a result of an inability to manage conflict or anger.
4. separation-instigated violence: violence that generally occurs around the time of separation with a small number of incidents. It can range from minor to quite severe.

Another significant amendment to the Divorce Act is the imposition of certain “Duties” on parents and family law practitioners. It compels them to consider alternative forms of dispute resolution processes such as negotiation, mediation and collaborative negotiation. We encourage separating spouses to consult family law professionals before starting a court case to evaluate whether other non-court processes might be available and desirable to resolve their disputes. With these changes to the Divorce Act, it is clear that the government believes that not all cases where there is family violence need to be resolved in the Courts. 

Perpetrators of family violence are encouraged to access the many organizations that exist to provide them with the support needed to learn to address their anger and abusive behaviour. When people have the courage to recognize they need help, and seek help, there is great hope for better relationships with the separated spouse and the children.