‘Startling’ changes to Divorce Act will affect many men

Family Law /
Gene C. Colman
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By Paul Russell, LegalMatters Staff • The definition of family violence added last year to the Divorce Act is broad enough to encompass many actions people may consider harmless, Toronto family lawyer Gene C. Colman told a conference audience.

“Men especially might engage in behaviour that they might think is not so bad, such as slamming doors or breaking a glass. But stop right there! The law now defines family violence in exceptionally wide terms, which encompasses actions that might surprise you,” he said.

Colman, principal of the Gene C. Colman Family Law Centre, was one of the 60 speakers at the International Interdisciplinary Conference on Fatherhood and Men’s Experiences with Violence and Victimization in Toronto. His speech on Sept. 16 was delivered to a live audience and on Zoom.

Colman noted that the term “family violence” was not defined in the Act until Bill C-78 came into force on March 1, 2021.

Measures introduced to assist courts in addressing family violence

“With this amendment, Parliament has implemented significant and I would say startling changes to the law of parenting – formerly known as ‘custody and access,’” he said. “One of these changes was to introduce ‘measures to assist the courts in addressing family violence.’”

Colman told the conference that is defined as any violent or threatening conduct that constitutes a “pattern of coercive and controlling behaviour” or that causes another 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.

He said that would include physical and sexual abuse, threats to kill or cause bodily harm to any person, harassment (including stalking, in person or online), failing to provide the necessities of life, as well as psychological abuse or financial abuse.

Harming or threatening to harm a pet is also listed as a form of family violence, Colman said, adding “violence toward domestic animals is a big no-no.”

‘A pattern of coercive or controlling behaviour’

Colman said that any act that a family member might perceive to be violent or threatening, or any pattern of coercive or controlling behaviour, could constitute family violence.

He noted that earlier in the conference, fellow presenter J. Hamel addressed the topic of intimate partner violence in child custody cases.

“As he said, the phrase ‘a pattern of coercive and controlling behaviour’ has been bastardized and shamelessly misused in this Act,” Colman told the conference audience.

He stressed that the court can decide someone has committed an act of family violence even if they were never criminally charged for that offence. Colman gave the example of divorce proceedings, where the Act states that the court should determine if any party is affected by “an order, proceeding, undertaking or recognizance” within the criminal law system.

“Take note that an actual criminal conviction or a formal finding under the child protection legislation is not required here,” he said. “Undertakings or recognizances are not criminal convictions. So is a criminal charge, without proof of guilt, good enough to sway divorce proceedings? I hate to say it, but likely the answer is yes.”

Family violence permeates the Divorce Act

After the 2021 amendments, the concept of family violence permeates the Divorce Act, Colman said, adding that he warns his clients that they cannot “ignore, marginalize or otherwise disregard allegations of bad behaviour as was the case previously in some circumstances.”

When establishing parenting or contact orders, he noted that the best interests of the child will remain the key factor to be considered by the court. To determine what those best interests are, Colman said the court will consider any family violence. If there has been, the judge will look at “the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child,” he said.

“There seems to be an implication here that the family violence perpetrator is not at all qualified to really care for and meet the child’s needs,” Colman said.

Act contains a ‘significant safety valve’

He said one positive addition to the Act is found near the end of the list of factors relating to family violence, where subsection (g) states that the court must consider “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.”

“This earth-shattering factor should guide all lawyers and litigants in our family law system where family violence is alleged and will likely be proven,” Colman said. “This is a significant safety valve. If you are going to be caught in the family violence spider’s web, meaning that you have indeed behaved badly within the meaning of the Divorce Act, then you must take substantial, persuasive, credible and all-encompassing steps to address your alleged action. Your residential time and decision-making responsibilities with your child are at stake.”

If you can demonstrate you have changed your ways and are no longer at risk of performing family violence, “you should be able to salvage a meaningful relationship with your child,” he added.

“On the flip side, if you are the victim of family violence, and the offending spouse has not taken any steps to ameliorate her behaviour, then point to this subsection and argue that the court must ascribe some meaning to it and in the absence of evidence under sub (g), the child is still at risk,” Colman said.

Parental alienation as family violence

The phenomenon of parental alienation is indirectly recognized in the Act, he told the audience, noting that whendetermining the best interests of the child, the court must consider “each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse.”

“The courts have held that undermining a child’s relationship with the other parent may be a form of ‘family violence,’ as it may be psychologically harmful to both the child and to the other parent,” Colman said.

He cited a 2021 Superior Court of Justice case, where a mother had directly undermined the father’s relationship with his children by refusing his sincere efforts to resolve parenting issues outside of court. She forced one son to falsely report his younger sibling had been sexually abused by his father. The children’s sense of security and self with respect to their father was “overwritten by the mother’s determination to erase her former spouse from her life,” the judgment notes.

“The court found that the mother had alienated the father, and as result transferred primary care of the boys to the father and granted him decision-making responsibility,” Colman said.

Alienation claims can backfire

But not all claims of parental alienation result in favourable outcomes for men, he said, citing a 2021 Ontario Superior Court of Justice case. It involved a father who sought to increase his parenting time with his daughter and claimed that the mother had a history of alienating their child from him.

“The mother provided the court with emails that the father had sent her and her counsel, in which he claimed that they were ‘alienating’ the child from him,” Colman said. “The court found that the father’s communications were often aggressive, demanding and threatening. In other words, they amounted to a pattern of threatening, coercive and controlling behaviour toward the mother, behaviour that is defined as family violence. The court chose to vary the parenting order, deciding that the father should have significantly reduced and supervised parenting time.

“Generally speaking, it is not a good idea to send heartfelt letters to your ex and her lawyer,” he added.

In a short question and answer period at the end of his presentation, Colman was asked if he or others had provided input when the government was considering amendments to the Divorce Act.

“As a lawyer who has been involved in the family rights movement since the mid-1980s, I and other lawyers appeared before the parliamentary committee that was addressing this bill,” he said, “But we were focused on the rebuttable presumption of equal shared parenting, which was not put into the Act,” he said. “Frankly, the full significance of these family violence amendments escaped us.”

Colman adds that these amendments should not escape us now. “They are important and have the potential to significantly transform Canadian family law,” he concludes.