Family Violence Changes to the Divorce Act
Mar 23, 2021
Family or domestic violence can take many forms ranging from physical abuse to emotional abuse and neglect. On March 1, 2021, changes were made to Canada’s Divorce Act that recognize the spectrum of family violence and who in the family it affects. These changes aim to help parents, mediators, support workers, lawyers, judges, and others involved in family law make safe and appropriate decisions in situations where violence has occurred. The new Act considers:
- What behaviours constitute family violence
- Examples of how family violence can be experienced by different members of the family
- How family violence affects children and parenting arrangements
- Other legal issues that may be relevant to cases of family violence
One of the most impactful changes in the new Divorce Act is the expanded definitions of what constitutes family violence. The definition acknowledges that domestic violence takes many forms and that it does not need to meet the criteria of criminal behaviour or require the burden of “proof beyond a reasonable doubt” to be considered. Children’s exposure to violence is also clarified in the new act. For example, seeing or hearing violence occurring is considered direct exposure, while indirect exposure includes situations in which a child sees a fearful or injured parent. Both of these are now recognized as family violence and child abuse.
Past History and Ongoing Issues
A shortcoming of the previous Act involved complex cases where families may be involved in different parts of the justice system at the same time. Family court judges were not necessarily required to take those situations into account. The new Act says that other legal actions, such as restraining orders, family court orders, and criminal proceedings, must be disclosed and considered in the outcome of the divorce case. These measures will help protect children and victims from further exposure to domestic violence during and after the divorce.
In practice, family law professionals, whether lawyers, mediators or social workers, have been screening for domestic violence and power imbalances for many years. However, with these amendments to the Divorce Act, we are now mandated to do so. Having difficult conversations with clients who may be afraid or unwilling to recognize the impact of violence on their families is hard. But, as difficult as these conversations can be, if they help provide safety for one family or one child, then that’s one way we can better help the community.
Kelly D. Jordan is an experienced and respected family lawyer in Toronto. A certified specialist in family law, Kelly and her team of family law professionals will represent you with compassion and creative legal strategies to help get you to a resolution. Call or book an appointment for a consultation.