Changing the Divorce Act

Last June, I wrote about the introduction of Bill C-78, which proposes major amendments to Canada’s Divorce Act. In the six months since then, the Bill has passed First and Second Reading. The Standing Committee on Justice and Human Rights is now holding hearings, during which it will hear from invited organizations and individuals who wish to comment on the Bill.

Luke’s Place and the National Association of Women and the Law have collaborated, with inspiration and input from many other women’s equality/violence against women organizations across the country, to write a Brief about the Bill’s potential impact on women, especially women fleeing abusive relationships.

Speaking up

On Wednesday, November 21, both Luke’s Place and NAWL made oral submissions to the Committee. Here are excerpts from my presentation:

This Bill has many positive elements:

  • It places the well-being of children at the centre
  • It contains clear criteria for the best interests of the child test, which will assist unrepresented litigants, lawyers and the judiciary to understand what needs to be taken into account when determining arrangements for children
  • Family violence is identified as an issue to be taken into account in divorce proceedings. Importantly, the definition includes coercive control, as well as psychological, financial and animal abuse and recognizes that family violence exists whether or not the conduct constitutes a criminal offence

Perhaps of greatest significance, the Bill does not introduce a presumption in favour of shared parenting; something long advocated for by fathers’ rights activists. Because of the unique circumstances of every family, any such presumption would not be in the best interests of children.

Of course, we also have some concerns about the Bill that I wish to raise with the Committee.

Best interests of the child

Keeping mothers – the primary parents in most separated families in Canada — safe enhances the well-being and best interests of their children. We would like to see section 16 amended to clarify this. Mothers need to be able to keep themselves and their children safe, without their behaviour being labelled “parental alienation.”

Section 16(3)(c) requires each spouse to support a relationship between children and the other spouse, and 16(3)(i) requires spouses to communicate and cooperate with one another on matters related to the children.

Our work with women has shown us, repeatedly, that these are not appropriate in cases of family violence. Indeed, communication and cooperation may be impossible where the abusive spouse engages in coercive and controlling behaviours. Such a requirement places women at risk of ongoing abuse – both physical and emotional – including lethal violence, and leaves children living in an environment of fear.

It is for these reasons that we have recommended removal of these two clauses.

Provision 16.2(1) sets out the principle that a child should have as much time with each parent as is consistent with their best interests. This is highly problematic for mothers who have left an abusive spouse, who often have serious and legitimate concerns for the safety of their children when in the care of their father.

This is not appropriate or necessary and should be removed. The Bill would be strengthened by the addition of clauses setting out specifically that the court should not presume that any particular arrangement is in the child’s best interests.

Language

We are not convinced that changing the language of custody and access to parenting time and decision-making responsibility will have the results the Minister is hoping for.

The definition of decision-making responsibility at the beginning of the Bill is general and lacks detail. Coupled with clause 16.2(3), which says that a person with parenting time has “exclusive authority” to make day-to-day decisions about the child, the Bill creates a broad opening for an abusive spouse to intentionally interfere with the other spouse’s ability to make decisions about the children. Children’s lives do not neatly divide into big decisions and day-to-day decisions; a reality that can be easily manipulated by a spouse who seeks to maintain control over the other spouse rather than to ensure the children’s best interests. We have seen this time and again in our work with women.

We suggest providing a detailed but non-exhaustive list of the kinds of decisions a parent with decision-making responsibility would have. We also recommend changing the provisions with respect to day-to- day decision making and adding a provision that those decisions shall not conflict with decisions made by the parent with decision-making responsibilities.

Contact orders

We appreciate the inclusion of a provision to speak to non-parental time with children, an arrangement that is a reality for an increasing number of families in Canada where grandparents, in particular, play significant roles in the lives of their grandchildren.

However, we do not want to see this provision used by an abusive spouse who has limited or no time with his children because of safety concerns, who then manipulates his parents into seeking contact as a back-door way to allow him to see his children.

We propose stronger language to require that the best interests of the child test be applied as well as other relevant factors when a contact order is being considered.

. . .

Finally, subject to any questions you may have for me, let me say that, while I hope the Committee will be persuaded by the recommendations in our Brief, I also hope this Bill is able to move quickly through the remaining stages so the Divorce Act can become a law that protects the best interests of children, that understands family violence, that reduces child poverty and that increases access to justice for families in Canada.

Where to now?

The Committee is hearing from a number of women’s equality-seeking organizations, whose perspectives are very similar to those set forward by NAWL and Luke’s Place. It is also hearing from proponents of shared parenting (aka fathers’ rights activists), who continue to present a dishonest picture of what happens in families in this country, as well as lawyers, lawyers’ associations and academics.

We hope to see the Bill, possibly with some of the amendments we are suggested, pass Third Reading and move on to the Senate before the December recess. Stay tuned for further updates!

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