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New Divorce Act Family Violence rules will be in effect in early 2021. The new law focuses on prevention and protection from family violence. Peter Graburn, senior MacLean Law Associate explains the new focus on protecting you and your children.

New Divorce Act Family Violence

These continue to be unsettled times. The COVID-19 pandemic continues to dominate our lives, with a resurgence of the virus expected in the Fall (together with flu season). COVID-19 has even affected the passage of new family law legislation. In 2018, the Federal government announced plans to amend the federal Divorce Act, originally planning such changes to take effect on July 1, 2020.  Due to the COVID-19 pandemic, changes to the Divorce Act have now been delayed to take effect on March 1, 2021.

New Divorce Act Family Violence
Peter Graburn, senior Calgary lawyer at MacLean Law

The Divorce Act deals with many issues facing separating married couples, including termination of the marriage, children, and financial support of both the spouses and children. However, the current legislation, in its present form since 1986, is widely considered outdated and adversarial, leading the Federal government to update this critical piece of family law legislation. In a series of articles, we look at three (3) of the main changes in the new Divorce Act, namely:

► Codification of the rules of relocation (Mobility);

► Clarifying the definition of “Best Interests of the Child”, and;

► Clarify the terms of Domestic (ie. Family) Violence.

In our previous articles, we discussed codification of the rules of relocation and child mobility see: New Divorce Act Child Mobility) and on clarifying the definition of the “Best Interests of the Child”. In this article we look at the last issue: clarifying the term “Family Violence”.

New Divorce Act Family Violence Lawyers

 “Family Violence”

Perhaps the most difficult aspect of family law is domestic (ie. family) violence. Whether this is violence against spouses or children, this is outright the most heart-breaking area of family law. Family violence has both short and long-term physical, psychological, and emotional effects on its victims and their families, especially children. The current federal Divorce Act makes no reference to family violence, leaving victimized spouses to have to prove such abuse of themselves or their children for the Courts to take this into account in either parenting or contact matters.  The new Divorce Act now includes a definition of family violence as:

any conduct… by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercion and controlling behaviour or that causes that other 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…

then goes on to give specific examples of such family violence. Even more importantly, to better protect children, the amended legislation makes it clear that the Courts must take family violence into account in determining parenting arrangements (ie. Parenting Orders) for children.

“Best Interests of the Child”

In our previous article on defining what is in the “best interests of the child” in making a Parenting Order,  we noted that one of the factors the Court must consider in this regard is family violence, specifically [at para.16(3)(j)]:

“any family violence and its impact on, among other things,

(a) the ability and willingness of any person who engaged in family violence to care for and meet the needs of the child, and

(b)  The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;

The new Divorce Act then goes on to set out specific factors the Court must consider in this regard, stating [at para. 16(4)];

“In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

  • the nature, seriousness and frequency of the family violence and when it occurred;
  • whether there is a pattern of coercive and controlling behaviour in relation to a family member;
  • whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
  • the physical, emotional and psychological harm or risk of harm to the child;
  • any compromise to the safety of the child or other family member
  • whether the family violence causes the child or other family member to fear for their own safety or for that of another person
  • 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;
  • any other relevant factor.

As previously indicated, family violence is perhaps the most difficult and heartbreaking aspect of family relationships.  The amended Divorce Act attempts to squarely address this reality in family law by defining this situation and also clarifying that this situation is one of the factors to be taken into account in (among other aspects) determining what is “in the best interests of the child” in parenting arrangements. While there has been some criticism that the new legislation merely updates anachronistic terminology (ie. “parenting time” rather than “access”, etc.), a reference to family violence in the amended Divorce Act is a significant step in this area.

In our first article in this series, we indicated that one of the main purposes of provincial legislation (ie. government-made law) is to provide some clarity and direction in regard to how Courts should deal with matters.  In regard to family violence in the family law area, at least, the new Divorce Act appears to have accomplished this.

Calgary Family Violence Lawyers

Calgary Family Violence Lawyers assist their clients understand the recent changes to be implemented in the new Divorce Act effective March 2021, and in particular the important changes that will come into effect regarding the serious issue of family violence.