Family lawyers and advocates for women and children are watching closely today as the first major changes in more than 20 years to Canada’s Divorce Act come into effect.
Among other changes, the Act now sets out a specific list of factors that courts must consider when weighing the best interests of a child — including the impact of family violence.
“The recognition of the nuances of what domestic violence [is] — this is a step in the right direction,” said David Morneau, a non-practising family lawyer and the current executive director of the Child Witness Centre in Kitchener, Ont.
The previous version made no reference to family violence, according to the Department of Justice. The change recognizes that violence can often erupt during a period of family separation, the department said, and have a long-lasting effect on children.
“For example, Statistics Canada data show that between 2007 and 2011 a woman’s risk of being killed by her former spouse was nearly six times higher than a woman’s risk of being killed by a spouse with whom she was living,” the department told CBC News in a statement.
Morneau said part of what makes the change significant is that the definition of family violence goes beyond the physical to include a broad range of examples such as:
- Sexual abuse.
- Harassment or stalking.
- Psychological abuse.
- Financial abuse.
Courts must now also consider the presence of family violence in the context of making parenting and contact arrangements. For example, in these cases courts may consider if co-parenting is appropriate or if it could lead to further violence, the Department of Justice website notes.
Changes create unified legal framework nationwide
The new amendments will bring the federal legislation into better alignment with certain provincial legislation and create a unified legal framework across the country, said Michael Saini, an associate professor of social work at the University of Toronto.
“We now have family violence included in a national piece of legislation that must be considered when parents are separating — that alone is huge,” said Saini.
“It unifies and it connects the country, by having this consistent, unified approach for considering violence in divorce matters.”
Saini said writing a definition of family violence into federal legislation will also draw awareness to the issue.
“It showcases and illustrates the importance of considering violence in each and every single case.”
Waterloo-based collaborative family lawyer Diane McInnis echoed that thought.
“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,” said McInnis, of DM Family Law. “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.'”
Power and control
The terminology used to describe parenting arrangements has also changed. The term “custody order” has been replaced by the more neutral “parenting order,” which aims to discourage the idea there are winners and losers in these decisions.
Jennifer Hutton, executive director of Women’s Crisis Services of Waterloo Region, said this is important.
“We know that at the root of domestic violence is that sense of … ownership or power over someone,” said Hutton, whose organization runs two shelters for women fleeing violence. “So I like how that language has been shifted.”
The changes to the Divorce Act were initially set to go into effect in July of 2020 but were delayed by the pandemic.
Hutton said she will be watching closely to see what the changes will mean in practice. In particular, Hutton said she wonders how victims may be asked to prove that violence really happened.
“We know locally there’s over 6,000 calls to police [a year] about domestic violence, yet we also know a lot of women don’t call police,” said Hutton.
“Our staff will hear from women as they go through this process. Is it changing anything? And that’s what we’ll be looking for and listening for.”
Call to review laws more often
Morneau said he, too, will be watching the situation as it unfolds. He wonders if people in the justice system have enough consistent training to reliably recognize the signs of violence.
“Without that training, that understanding … then it may all be for naught,” he said.
He also hopes the government will commit to re-examining the legislation more frequently in the years to come.
In response to questions from CBC News, a spokesperson for the Department of Justice said in a statement the office plans to “actively monitor” the outcome of the amendments through case law, academic research and ongoing consultations. The statement went on to say officials plan to work with provinces and territories to address any issues that arise.
The Department of Justice has also trained lawyers and justice system officials about the legal changes around family violence, and is developing further public education materials and an online course on the same topic, the spokesperson said.
Further detail about the changes to the Divorce Act and the reasoning behind it is available on the federal government’s website.