The recent amendments to the Divorce Act are giving a new meaning to family violence. Before the amendments, the term “family violence” had no legislated definition, leaving courts to decide the best approach to this complex issue.
The New Definition
The amendments provide a wide scope, capturing many forms of violent behaviour. According to the new definition, family violence can be any one of the following actions by one family member toward another:
- conduct “that is violent or threatening;”
- conduct “that constitutes a pattern of coercive and controlling behaviour;” or
- conduct “that causes the other family member to fear for their own safety or for that of another person.”1
With respect to children, mere exposure to such conduct meets the definition.
This change reflects society’s stronger and more modern understanding of the impact violence can have at home.2 It highlights the reality that violence goes beyond physical or verbal abuse. The definition includes a non-exhaustive list of behaviours that rise to the level of family violence:
- physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
- sexual abuse;
- threats to kill or cause bodily harm to any person;
- harassment, including stalking;
- the failure to provide the necessaries of life;
- psychological abuse;
- financial abuse;
- threats to kill or harm an animal or damage property; and
- the killing or harming of an animal or the damaging of property.3
Best Interests of the Child
When making orders related to parenting, courts are required to make their decisions based on the best interests of the children. Following the amendments, determining the best interests of children must involve a consideration of family violence.4
This change is intended to reflect that children can be profoundly affected by violence at home, even where they are not the target. Experts have noted that family violence can have long-term impacts on children, including depression and post-traumatic stress disorder.5
The effect of violence on parenting decisions will depend on a number of factors. This allows for different approaches to different forms and degrees of violent conduct. While the law acknowledges that violence takes many forms, an emphasis is placed on patterns of coercive and controlling behaviour. This kind of violence is seen as more dangerous and more likely to affect parenting.6
Lawyers at BOYNECLARKE LLP are always informed and up to date on changes that affect you. If you are looking for advice, please call 902-469-9500 to schedule your consultation with a member of our Family Law team. For more information on the Divorce Act amendments, keep up to date with our blog.
1 Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, 1st Sess, 42nd Parl, 2019, cl 1 (assented to on 21 June 2019) [Bill C-78]; Divorce Act, RSC 1985, c 3, (2nd Supp).
2 Canada, Department of Justice, “Legislative Background: An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (Bill C-78)”, (Ottawa: DOJ, January 2019) [Legislative Background].
3 Bill C-78 supra note 1, cl 1.
4 Ibid, cl 12.
5 Legislative Background supra note 2.