The first major changes to Canada’s Divorce Act in 20 years came into effect on Monday. Among other things, the law now establishes a precise list of factors to be considered by the courts when assessing the best interests of the child, including the repercussions of domestic violence.
“Recognizing the nuances of what family violence is is a step in the right direction,” says David Morneau, lawyer specializing in family law and executive director of the Child Witness Center in Ontario.
The previous version of the law made no mention of domestic violence, admits the Justice Department.
The changes recognize that separation can often trigger violence within a family and have long-term consequences for a child, the ministry said.
“For example, the data collected by Statistics Canada shows that, between 2007 and 2011, a woman was six times more at risk of being killed by her ex-spouse than of being killed by a spouse with whom she was still living”, mentions the Ministry of Justice.
A unified national legal framework
Changes to Canada’s divorce law will allow it to be better aligned with certain provincial laws and create a consistent legal framework across the country, says Michael Saini, associate professor of social work at the University of Toronto.
“Domestic violence is now included in national legislation and has to be taken into account when parents separate, it’s huge. “
“I think these aspects were often swept under the rug,” says the family law lawyer Diane McInnis. The new legislation forces us to recognize that there are multiple ways in which violence can occur in a relationship. “
What makes the changes to the law particularly interesting, according to David Morneau, is precisely the fact that the definition of family violence goes beyond physical violence.
Extract from the Divorce Act
Family violence: means any conduct, whether constituting a criminal offense or not, by a family member towards another family member that is violent or threatening, which indicates, by its cumulative aspect, coercive and dominant behavior or which causes that other family member to fear for his or her safety or that of another person – and as a result of a child’s direct or indirect exposure to such conduct – including:
(a) bodily ill-treatment, including forced isolation, excluding the use of reasonable force to protect oneself or someone else;
b) sexual abuse;
c) threats to kill someone or cause bodily harm to someone;
d) harassment, including stalking;
e) failure to provide the things necessary for existence;
f) psychological abuse;
g) financial abuse;
h) threats to kill or injure an animal or damage property;
i) killing an animal, causing injury to an animal, or damaging property.
Control and power
Courts will also now have to take into account the risks of violence in child custody arrangements.
In fact, the term “custody order” has been replaced by “parental order”. The aim is to discourage the idea that a parent wins or loses custody of their child.
This is an important aspect according to Jennifer hutton, Executive Director of Women’s Crisis Services, which manages two shelters for women fleeing domestic violence.
“At the root of domestic violence is this sense of ownership and control over others. So I like this change in terminology, ”she says.
Jennifer Hutton wonders, however, how these legislative changes will be put into practice. What worries him in particular is how victims will be asked to prove that there has been domestic violence.
David Morneau agrees and doubts that workers in the justice system are adequately trained to recognize the signs of domestic violence. “Without that kind of training, it could all be useless,” he says, adding that he hopes the government will review the Divorce Act more regularly in the future.
A spokesperson for the Justice Department said in a statement that it plans to “actively monitor” the outcome of the changes through case law and academic research. The ministry also intends to work with the provinces and territories to resolve any issues.
The Department of Justice also claims to have trained lawyers and justice officials on legal changes relating to domestic violence, and is developing other public education materials and an online course on the same topic.
With information from CBC’s Paula Duhatschek