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By Tony Poland, LegalMatters Staff • Changes to the Divorce Act were a long time coming but the steps taken should have a positive impact, especially when it comes to family violence, says Toronto family lawyer A. Julia P. Tremain.
The federal Act has not been substantially modified in more than 20 years. The revamped legislation, which took effect on March 1, was scheduled to be introduced last July but was delayed due to the coronavirus pandemic.
“There’s plenty to be unpacked with these amendments,” says Tremain, a partner with Waddell Phillips Professional Corporation. “It’s long overdue and whether these revisions go far enough remains to be seen but it is certainly a step in the right direction.
“it’s always interesting to discover how these things play out in real life. Until we see some case law we won’t really know if the amendments actually go far enough,” she adds.
‘Best interests of the child’
The federal government announced it had changed family laws “to promote the best interests of the child, address family violence, help reduce child poverty, and make the family justice system more accessible and efficient.”
“We understand how important the changes to the Divorce Act are to Canadians affected by separation and divorce, especially to vulnerable family members,” says Minister of Justice and Attorney General of Canada David Lametti. “Faced with the challenges presented by the COVID-19 pandemic, we worked hard with our partners to implement these changes, which address family violence and promote the best interests of the child.”
Among the highlights of the new legislation are changes that affect the best interests of the child, custody and access. The definition of family violence was also expanded.
“Previously the Divorce Act mandated that the court must consider the best interest of the child, without clearly defining what that was,” Tremain tells LegalMattersCanada.ca. “Now the Act actually sets it out which is similar to provincial legislation.
“It’s not exhaustive, but it provides a guide in terms of what to look for,” she adds. “It allows for the child’s views to be taken into account, which is very important. Those views are not necessarily going to be determinative but they should be given serious consideration.”
Access to non-parents
The new law also provides for access to non-parents “so there is a greater ability for grandparents or other extended family members to get an order for contact,” Tremain says.
She says she is also encouraged by the changes made to deal with family violence.
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“Now the definition is all-encompassing. It’s not just physical abuse,” she says. “Violence causes a family member to fear for their safety. In the case of a child, direct or indirect exposure to such conduct can be detrimental.”
A government briefing notes that family violence “can take many forms and can cause significant harm to both victims and witnesses.”
Violent conduct
The amendment covers any conduct that is violent or threatening. The behaviour does not have to be a criminal offence or meet the criminal threshold of “proof beyond a reasonable doubt” to be considered family violence under the Act and can include:
- physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
- sexual abuse;
- threats to kill or cause bodily harm to any person;
- harassment, including stalking;
- the failure to provide the necessaries of life;
- psychological abuse;
- financial abuse;
- threats to kill or harm an animal or damage property; and\the killing or harming of an animal or the damaging of property.
Tremain explains that violence has a “coercion and control aspect.” Because it happens behind closed doors it could be difficult, under the old legislation, to use such instances in court if there was no police involvement.
In the past if someone was punished for domestic violence and paid the penalty, that was not necessarily seen as an issue in court, she says.
“The attitude was, ‘Why would we keep raising this? The spouse has done their time and we don’t need to deal with it now,’” Tremain says. “But these incidents can have such a long-term impact on the victim and on the children if they witnessed this. If we don’t take that into consideration, if courts don’t realize the significance of that impact, it can be a real problem in the future.”
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