Canada's Divorce Act revamped to address family violence and custody battles

Mother of slain Oak Bay girls speaks on new laws An Oak Bay mother, whose two children were killed by their father in 2017, is applauding changes made to Canada's divorce laws.

TORONTO — The federal government has revamped Canada’s Divorce Act in hopes that the amended legislation will promote the best interests of children and make the family justice system more efficient.

The new amendments, which now include a section on family violence, mark the first substantive changes to federal family laws in more than 20 years.

According to the Department of Justice, changes were made because “family violence can take many forms and can cause significant harm to both victims and witnesses.”

The Act defines family violence as any conduct that is threatening, forms a pattern of coercive and controlling behaviour, or causes a family member to fear for their safety or the safety of another individual.

The new definition not only includes acts of violence, but also the child’s exposure to such acts, and specifies that a person’s behaviour does not need to rise to the level of a criminal offence in order to be considered family violence under the Divorce Act.

"The changes that we have made to modernize the Divorce Act have been a long time coming and I am proud that they are coming into force today,” Minister of Justice and Attorney General of Canada, David Lametti, said in a statement. “We understand how important the changes to the Divorce Act are to Canadians affected by separation and divorce, especially to vulnerable family members.”

He added, “Faced with the challenges presented by the COVID-19 pandemic, we worked hard with our partners to implement these changes, which address family violence and promote the best interests of the child."

In addition to family violence, the legislation also establishes guidelines for when one parent wants to relocate with a child. What used to be called a custody order has been repealed from the Divorce Act and replaced with the term “parenting order,” to avoid bitter custody battles between parents.

The term custody itself has also been replaced, to make a distinction between “parenting time” and “decision-making responsibility.”

Custody battles involving parents relocating can be particularly complicated and in some cases nasty, according to lawyers from the law firm Shulman and Partners in Toronto.

“When you’re dealing with an existing parenting schedule or parents that are currently separating and you have a parent who's trying to move out of the jurisdiction; this creates a lot of issues in terms of a parent’s ability to facilitate access to that child,” Shulman and Partners associate lawyer Laura Paris told CTV’s Your Morning on Wednesday. “These types of issues create a lot of conflict between parents and usually it's something that parents cannot agree on and something that you are forced to go to court to make a decision.”

Livia Fajkusz, a mother of three whose divorce was finalized in January, told CTV News Calgary how important it is to have this information codified into law. “The more things written down there, the less you have to fight for yourself right,” she explained.

Fajkusz said her divorce was amicable, but she believes the new laws will help other couples settle their differences outside court.

“For me the most important changes are they put a more detailed description about family violence … not just physical violence but mental, emotional abuse, financial abuse," she said.

In an interview with CTV’s Your Morning on Tuesday, David Morneau, executive director of the Child Witness Centre in Ontario's Waterloo Region said that prior to these amendments, the definition of family violence didn’t exist within the law, but now courts will be required to consider any instances of abuse when making decisions.

“[There] was simply a clause that said no past conduct was to be taken into consideration unless it was relevant to someone’s ability to parent,” Morneau explained. “Of course family violence would often be recognized as behaviour that was relevant [to the judge’s decision] but a lot would be missed because there was often a narrow scope about what constituted family violence.”

The reforms were originally scheduled to go into effect on July 1, 2020 but were postponed until now because of the pandemic.

The government says other objectives of the Divorce Act amendments include helping to reduce child poverty and make Canada’s family justice system more accessible and efficient.

More details on the Divorce Act can be found on the Government of Canada’s website.

With files from CTV News Calgary’s Ina Sidhu