Amendments to the Divorce Act came into force on March 1, 2021 which are addressing family violence for the first time. Family violence is defined in section 2(1) of the Act as “any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive 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 — and includes
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.”
Pursuant to section 16(4) of the Act, the courts will need to take a number of factors into consideration when determining how family violence affects a child’s wellbeing such as “the nature, seriousness and frequency of the family violence and when it occurred” and “the physical, emotional and psychological harm or risk of harm to the child” as well as other important considerations including “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.” We have yet to see how these factors will be assessed by the court and what types of evidence will be admitted.
These changes are a long time coming considering the prevalence of violence among families in some form or another, especially between bitter or hostile spouses before and throughout family law disputes. Future cases will determine if and how these new amendments to the Divorce Act will result in better outcomes for families when considering the impact of family violence on the best interests of the child.
Deborah A. Todd