Yesterday, March 1st, significant revisions to both Canada’s Divorce Act and Ontario’s Children’s Law Reform Act, (CLRA) came into effect. Many of those revisions address the ways in which courts make decisions about parenting arrangements (aka custody and access) after parents separate.
I have written here before about both Bill C-78, the bill to amend the Divorce Act, and Bill 205, the bill to amend Ontario’s legislation, so I won’t go into detail about the changes now. Of greater interest at this point, I think, is whether those changes will lead to meaningfully better outcomes for women and children fleeing abuse.
Defining family violence
There is no doubt that there is much to be hopeful about, as these revised laws – which are virtually identical in the sections dealing with parenting arrangements — come into effect. The inclusion of a definition of family violence that is broad and nuanced offers hope for those who are trying to leave an abusive relationship behind and keep themselves and their children safe. The CLRA, in language the same as that in the DA but for the ordering of a clause or two, defines family violence as:
“any conduct by a family member towards another family member, that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct, whether or not that conduct constitutes a criminal offence”
For the first time, family courts are being told they must consider coercively controlling abuse — the toughest kind of abuse to prove because it often does not involve physical violence — as well as the victim’s fear, and that it doesn’t matter whether or not the behaviour has led to criminal charges being laid against the abuser.
The definition continues with an expansive list of behaviours that will be considered abusive, including threats to harm animals as well as psychological and financial abuse; kinds of abuse that women’s advocates have identified as serious for decades but that family courts have all too often dismissed.
Not only is family violence well defined in the new statutes, it now is part of the best interests of the child test, which means that judges must consider it when assessing what kind of parenting arrangement is best for the children.
Two large steps forward, but . . .
A major flaw in the revised legislation is that the wording about decision-making responsibilities creates an opening for abuse. The court can order that the parents share decision-making responsibilities or that one parent have sole responsibility for this. In either event, whichever parent the child is with at a given time has the “exclusive authority during that time to make day-to-day decisions affecting the child.”
This is a perfectly reasonable provision when both parents are perfectly reasonable people. An emergency could arise or a small unanticipated decision may need to be made, and the parent who the child is with should be able to make those decisions.
However, abusers are not perfectly reasonable people. History has well established that this opening will be manipulated by abusive men to make decisions not because they are in the best interests of the children but to challenge their former partner’s decision-making, to intimidate or harass her and to let her know who is still in charge.
What is in the children’s best interests?
Two factors in the best interests of the child test are problematic for women and children fleeing abuse:
- The willingness of each parent to support the child’s relationship with the other parent
- The willingness of each parent to communicate and cooperate, in particular, with one another, on matters affecting the child
As with decision making, these provisions make sense for families where there is a shared commitment by both parents to what is best for their children and where one parent is not afraid of the other because of past and ongoing abuse.
However, many women who have left an abusive relationship have justifiable reasons for being concerned about their children in the care of the father. He may have threatened to harm or not return them as part of his attempts to control her and keep her from leaving him. He may not have been an active father, so she is afraid that he won’t know how to care for the kids without her around. She may have worries that he will try to turn the children against her or use them to, unwittingly, spy on her and report to him.
It’s hard to imagine that a woman leaving an abusive relationship would not be reluctant to communicate and cooperate with her former partner. After all, she has experience trying to do both, and it has usually not gone well.
Also a problem with the new legislation is what’s missing from it. Here are four biggies:
- No requirement for judicial education. This is a touchy topic, as anyone who has followed Bill C-5 which proposes mandatory sexual assault education for newly appointed federal judges, will already know. The fact is that many family court judges are woefully uninformed about intimate partner abuse and the unique dynamics at play in families where there has been violence. If the new Divorce Act and Family Law Reform Act are to live up to what they offer, the awareness and understanding that judges have must be increased. This would have been an easy amendment to make to Bill C-7, but it has not been made.
- No requirement for family law lawyers to screen all new clients for family violence. Despite research conducted for the Department of Justice by Luke’s Place that clearly indicated the value of such screening, it remains a matter of choice for individual lawyers as to whether or not they screen. Many survivors are reluctant to disclose the abuse they have just left, so if the lawyer doesn’t screen, they miss important information that can shape both the legal processes and the outcomes they advise their client to pursue.
- Too much focus on alternate dispute resolution. While I am not suggesting that mediation and other forms of ADR are never appropriate in cases involving family violence, nor are they always appropriate, and the new legislation is overly focused on them.
- No provisions addressing the crisis in legal representation in family court. More than 60% of people with a family law case do not have a lawyer. While some of this is the result of poor provincial policy, some of the money for legal aid services flows from the federal level, and the feds could decide to make this a higher priority. Imagine trying to manage your own family law case – complex enough on its own – while also managing ongoing abuse from your former partner, who may well be representing himself. It’s not acceptable, plain and simple.
British Columbia made major revisions to its Family Law Act in 2013, many of them very similar to those made more recently to the Divorce Act and the CLRA. At least two significant pieces of research have focused on the flaws in those reforms. Notable among the findings were the lack of attention to judicial education and the need to address the number of people without lawyers for their family law case.
“The FLA has changed our laws, but our culture has not yet followed suit. Changing the way that we understand violence, power, resistance and safety is a crucial next step for BC’s legal system professionals.. . . after eight years, the promises of the FLA remain largely illusory.”
As Les Whittington wrote in The Hill Times last month:
“[The Divorce Act] is a start but there is a long way to go to end the scourge of family violence.”