Justice delayed

As I have written about in the past, the provisions of Canada’s Divorce Act that address parenting of children after their parents divorce were significantly revised in 2019.

Bill C-78 squeaked through Third Reading in the Senate and received Royal Assent just before Parliament rose for the summer and then the election in the fall of 2019. At that time, it was scheduled for implementation on July 1, 2020.

While many of us who work with women leaving abusive relationships felt the Bill could have been stronger, especially with respect to provisions related to family violence, most of us believed that it offered significant improvements over the existing Divorce Act, which had not been revised for more than 20 years.

At that time, we looked ahead with optimism to July 1, 2020; confident that, even if the Liberals lost the election, this one piece of important law reform was here to stay.

Just what were those changes?

Two of the most important and positive changes to the Divorce Act are the inclusion of a broad and inclusive definition of family violence and a detailed best interests of the child test (the test used by courts to decide on post-separation parenting arrangements for children), both of which offer much hope to women whose former partners have been (and, often, continue to be) abusive.

Those of us who advocated for revisions to Bill-78 were heartened in June 2019, when the Senate Committee on Legal and Constitutional Affairs made a number of significant observations about the legislation, which reflected recommendations we had made but which were not included in the Bill:

• the gendered reality of family violence is important
• family law practitioners should “take into consideration the potential consequences of awarding parental responsibilities to a perpetrator of family violence”
• the federal government should “collaborate with provincial and territorial governments to ensure awareness of the main changes introduced by Bill C-78, including the proper use of family violence screening tools for legal practitioners”
• the federal government should establish an independent body of experts to assist with ongoing review of the Divorce Act

The Committee also respectfully invited the Canadian Judicial Council “to incorporate issues relating to intimate partner violence, gender-based violence and the unique circumstances of Indigenous women in the design of its judicial education seminars on family law.”

We had good reason to feel hopeful.

Not so fast

However, in May of this year, federal Justice Minister David Lametti announced that, because of the pandemic, the revised Divorce Act would not be implemented until March 1, 2021. In making his announcement, he said:

“Many courts across the country are currently hearing only urgent family law matters, and governments are focused on addressing pandemic-related urgencies and priorities. All of this has made it impossible to undertake the necessary steps for implementation. We understand the changes to the Divorce Act are highly anticipated by family law professionals, provincial and territorial partners and Canadians affected by separation and divorce. However, our partners throughout the family justice system need enough time to implement the legislative changes, including by adjusting their own laws and regulations.”

Despite the impact that the pandemic has had in every corner of our lives, it is important to consider the implications of this delay on the most vulnerable of those who turn to family law for assistance. Among those are women fleeing abusive relationships and their children.

Any of those women who start a divorce application between now and March 1, 2021 – some of whom may have been counting on the revisions to the Divorce Act – will not be able to use the important new sections defining family violence and providing criteria for the best interests of the child test.

The decision to delay, while understandable in some respects, is a frustrating reminder that the present federal government’s stated commitment to using a “gender-based-analysis +” in its development of public policy and law is often little more than lip service. Just as there did not seem to be consideration of the gendered impact of many pandemic policies and protocols (sheltering at home, closing schools and day care centres, closing many in-person workplaces), there does not seem to have been a consideration of the gendered impact in the delayed implementation of the Divorce Act.

Finding a silver lining

In theory, the delay in implementation of the revised Divorce Act gives time for provinces and territories to revise their family law legislation to align with the federal statute.This is important, because the provisions of the Divorce Act apply only to people who are married and applying for a divorce. This excludes many families: parents who have lived together without being married, parents who have never lived together, and parents who are married and have separated but are not pursuing a divorce. Once provincial and territorial legislation is brought into line with the federal statute, families – no matter their construction – will have access to similar legal frameworks within which they can resolve their parenting issues.

As we wait through this eight-month delay, we need to advocate with our provincial and territorial governments to make this issue a priority, pandemic notwithstanding. We can also use the time to advocate for judicial education, for introduction of mandatory screening and for the federal government to establish the independent body of experts, as suggested by the Senate Committee.

Perhaps with those efforts, when March 1, 2021 rolls around, we will have provincial/territorial law reform well underway as well as some of the tools in place to ensure the implementation of the revised Divorce Act has a meaningful and positive impact on the lives of women leaving abusive relationships and their children.