TORONTO -- Advocacy groups and legal experts who say that Canada’s Divorce Act doesn’t go far enough to protect victims of abuse are calling for further changes to the legislation as well as a “unified family court system.”

In 2019, the federal government revamped the Divorce Act for the first time in more than 20 years, in hopes that the amended legislation would promote the best interests of children and make the family justice system more efficient.

The changes – which came into effect on March 1 – include a section explaining the criteria for family violence, as well as guidelines to help determine who gets “parenting time” and “decision-making responsibility” when children are at the centre of a divorce.

Pamela Cross is a family lawyer in Oshawa, Ont. and the Legal Director of Luke’s Place, an organization which provides support to women who have left or who are in the process of leaving an abusive relationship. She says that there are a handful of areas where the legislation falls short and leaves room for abusive spouses to potentially manipulate the situation, gain power over their former partner, and cause more harm.

“We're very unhappy with the way the language around decision-making responsibility is worded,” Cross told CTV News in a phone interview.

“In the old days, meaning before March 1 of this year, parents went to court and if they couldn't resolve their situation themselves, courts made orders for custody and access, and usually the parent who the children were with most of the time had primary responsibility for making decisions,” Cross explained. “That language of custody and access does not exist in the new Divorce Act.”

Under the current Divorce Act, what used to be called a custody order has been replaced with the term “parenting order” and the term custody has also been replaced, to make a distinction between “parenting time” and “decision-making responsibility.”

Cross says that this could make for situations where decision-making responsibility is shared equally between parents.

“Where there's a relatively equal power balance between the parents and when both of them are able to put the interests of their children ahead of how they might feel about their former spouse, shared decision making can be great for kids,” Cross says.

“There's no doubt that children benefit from having more than one person responsible for making decisions about them,” she said, but added a caveat.

“However, where there is a situation of abuse, that’s not necessarily true [...] the parent who’s been the abusive spouse is not often motivated by what’s in the best interest of the child.”

Cross notes the abusive partner may be motivated by their ongoing desire to maintain power and control over their former spouse. In such situations, she says a survivor of abuse may be accustomed to conceding to whatever their partner wants and that leaves the abusive person in a position where they can force decisions on the entire family that aren’t necessarily in children’s best interest.

According to the legislation, not only could a judge order for decision-making responsibility to be shared equally between parents, the Divorce Act also stipulates that “a person to whom parenting time is allocated [...] has exclusive authority to make, during that time, day-to-day decisions affecting the child.”

Cross says that her organization advocated to change the wording of the legislation to specify that any decisions affecting the child need to be supported by the primary parent.

“We advocated for that. But unfortunately, we weren't successful,” Cross explained.

A spokesperson for the Department of Justice told, “It is important to note that the Act provides that a person with parenting time has exclusive authority to make day-to-day decisions during their parenting time ‘unless a court orders otherwise.’ In deciding whether to exercise its discretion to ‘order otherwise’ a court would need to consider all of the best interests of the child factors set out in the Act, including the impacts of any family violence.”

“As with all decisions about parenting arrangements, the court would also have to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being,” the spokesperson added.

In addition to concerns about the framework of the legislation, advocates are also worried that the Divorce Act puts too much emphasis on the family dispute resolution process that sees the parties reach an agreement outside the courts.

“We're concerned that the Divorce Act continues to emphasize that lawyers should encourage their clients to use alternative dispute resolution,” Cross explained. “We think the legislation would be more appropriate if it said simply that lawyers are required to advise their clients to have different resolution options, including litigation, alternative dispute resolution, and so on.”

Cross acknowledges that outside mediation can be successful for some people who have been in abusive relationships, but she doesn’t think it should be the preferred method. 

“It really depends on the situation and on the family,” she added.

“We're also concerned about some of the criteria in the best interest of the child test that says the court will consider the ‘willingness of each parent to communicate and work cooperatively with the other parent.’ Again, that's great if there's no history of abuse. But if I'm terrified of my ex-partner, how realistic is it to expect me to communicate and work cooperatively with him?” Cross asked.

While the shortfalls of the legislation are raising concerns among advocates, for Queen’s University Law Professor Nicholas Bala, the problem lies with the court system.

“In many places in Canada, including Toronto – largely because of federal inaction – when it's time to go to court, sometimes you have a judge who has family law experience and sometimes you have a judge who doesn't,” Bala explained. “You might come back to court a month later and it could be a different judge. It's a very inefficient and frustrating process.”

Bala says the solution would be to enforce a unified family court system with judges who deal exclusively with family law cases and understand the dynamics of family violence and the best interests of a child.

“It requires federal and provincial cooperation, and resources like money,” Bala explained. “Family law cases require not only knowledge of the law, but also understanding of the dynamics of divorce and child development, as well as other issues.”

According to data from Ontario’s Ministry of the Attorney General, there are approximately 8,395 pending family law cases before the Ontario Court of Justice as of Dec. 2020.

The federal Department of Justice says that it has “consistently supported initiatives aimed at enhancing access to justice,” and that the family justice system “should be accessible to all Canadians and easy to navigate even during difficult times.”

“To improve outcomes for Canadian families, Budget 2018 provided $77.2 million over four years to support the expansion of Unified Family Courts, beginning in 2019-2020, and $20.8 million per year ongoing,” a spokesperson for the Department of Justice said. “This investment in the family justice system authorized funding for 39 new judicial positions for [unified family courts] in Alberta, Ontario, Nova Scotia, and Newfoundland and Labrador.”

As for Nicholas Bala, he maintains that without judicial education and significant changes to the court system, the long-term interests of children will be caught in the crossfire.

“Although it's parents who are complaining, it's the children who are suffering,” he added.