When women with children leave an abusive partner, their first concern is usually about the children’s well-being; in particular, about what parenting and decision-making arrangements will be best for the kids. Before 2021, courts had little in the way of legislative guidance when it came to how (or, indeed, if) family violence should be considered when they were making child-related decisions. Major revisions to the federal Divorce Act and Ontario’s Children’s Law Reform Act that came into effect that year changed this. A detailed test now requires the court to consider 11 factors related to the best interests of children. One of those is the presence of family violence, for which a nuanced and comprehensive definition is provided.
Since then, there has been a slow but steady increase in the number of decisions that explicitly identify and recognize family violence. Nonetheless, some men continue to raise false allegations of parental alienation when their partner presents evidence of family violence, which can make it difficult for courts to find the truth. This task is made more difficult because there is still no comprehensive, mandatory education about family violence for family court judges.
Some history
Along with many other violence against women advocates, I have been actively involved in law reform efforts focused on the Divorce Act and its provincial/territorial counterparts, for more than 25 years. While we did not see Bill C-78 — the legislation that led to the changes to the Divorce Act and the Children’s Law Reform Act — as perfect, we welcomed it as a significant next step in ensuring that family laws responded to family violence appropriately.
We were also encouraged at the time by the Observations provided by the Senate Standing Committee on Legal and Constitutional Affairs, which supported Bill C-78 while noting that, had Parliament not been about to dissolve, it would have proposed amendments. The Committee also urged the Government of Canada to establish an independent body of experts to assist with a legislative review of the revised Divorce Act, to be undertaken within five years of its adoption.
That has not happened, but feminist and anti-violence organizations have been paying attention to the positive and negative impacts of the statutory changes.
A new Bill
A few weeks ago, Liberal MP Lisa Hepner introduced Bill C-223, which is a private member’s bill proposing revisions to the Divorce Act that build on the changes made four years ago.
I think it’s too early to revise the Divorce Act. There has not been enough time to thoroughly test the 2021 changes so we can assess whether further changes are needed.
However, Bill C-223 is here and, from my perspective, offers some positive ideas along with some that I don’t think will be helpful. Here are a few of my thoughts on parts of this Bill. It’s likely headed to the Standing Committee on Justice and Human Rights for hearings.
What’s good
Bill C-223 would make it mandatory for lawyers to screen for family violence. Excellent screening tools now exist, but they are of little value if all lawyers don’t use them.
Also positive is the proposed inclusion of a nuanced list of myths and stereotypes about family violence, which will make it more difficult for courts to fall prey to them when making child-related decisions. A similar list was proposed by feminist advocates during the discussions about Bill C-78, but we were unable to persuade lawmakers of its importance at that time.
One of the proposed myths, which says that — where there has been family violence — a decision by one parent to leave the family home with the children is not on its own contrary to the children’s best interests, is especially important, as abusive men often raise this as “proof” that their former partner is alienating the children from them.
And what’s not so good
The Bill would impose a duty on lawyers to prepare safety plans for their clients. While these plans are important, it is not the job of lawyers, who have no training and expertise in this area, to create them. The Bill should be revised to require lawyers, where violence has been identified, to provide their clients with information about where they can find community advocates to create such plans with them.
Many of us are unhappy with the requirement in the current legislation for courts to consider each parent’s willingness to support the child’s relationship with the other parent, because it does not take into account the challenges in situations of family violence. This Bill proposes that that this factor be removed from the best interests of the child test, but a better solution might be to make it conditional on a consideration of family violence.
Bill C-223 proposes adding new factors to the best interests of the child test that would address what is commonly known as parental alienation. It is certainly the case that better attention needs to be paid to this issue. However, the proposed sections are not clearly drafted and, as a result, they may not take us in a helpful direction.
In situations where counter allegations of family violence and parental alienation are raised, courts should be directed to first determine whether violence is a factor and, where it is, parental alienation claims made by the person perpetuating the violence should be considered only as a tactic of abuse. Where no finding of violence is made, the claim of such violence should not be considered on its own as evidence of alienation.
We need new language, so protective parenting by survivors of family violence seeking to limit the abuser’s time with the children because of legitimate safety concerns is clearly distinguished from the intentional alienation of children by one parent as part of their pattern of abuse.
Where to next?
Survivors of family violence who engage with the family law system continue to face significant barriers as they seek legal outcomes that will keep them and their children safe: the reality of post-separation abuse as well as trauma are poorly understood; a lack of legal representation places survivors at risk of ongoing harassment and legal bullying by their former partner; a cultural fondness for friendly co-parenting arrangements denies the danger inherent in family violence situations, and a reliance on myths and stereotypes often improperly discredits survivors’ stories of abuse.
The Divorce Act of today is much better than the pre-2021 Divorce Act. Perhaps, with some changes, Bill C-223 can make it even better.
But good laws on their own don’t ensure justice. In particular, lawyers and judges must have a fulsome understanding of family violence. Education for all judges, developed in partnership with academic and community experts and coupled with accountability measures, must be mandated. The same is true for family law lawyers.
Good laws interpreted and applied by well-educated professionals is what will keep children – and their mothers – safer.