This year was to mark a significant change for Canada’s Divorce Act, which was to get its first major overhaul since 1986 on July 1, 2020. Due to COVID-19, however, those amendments have been postponed, and will now come into force on March 1, 2021.
The amendments make numerous changes, some procedural, but many substantive. In a series of three blogs, I discuss the following amendments:
Part 1: Amendments changing terminology relating to custody and access;
Part 2: Establishment of a non-exhaustive list of criteria to consider when determining the best interests of the child, a key focus of the amendments; and
Part 3 (this blog): Amendments that have been introduced to address family violence, to encourage the use of dispute resolution processes outside of court, and to simplify enforcement of family support obligations.
Part 3: Family Violence, Dispute Resolution and Enforcement of Family Support Obligations
In this blog, we will discuss the amendments that have been introduced to address family violence, encourage the use of dispute resolution processes outside of court, and simplify enforcement of family support obligations.
Addressing Family Violence
The amendments to the Divorce Act not only introduce and define “family violence,” but also presents factors the courts must consider to protect children against family violence.
For the purposes of the Divorce Act, family violence means “any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or 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.”
In the case of a child, family violence includes direct or indirect exposure to such conduct.
The broad definition is accompanied by a list of non-exhaustive examples of what constitutes family violence. This includes, amongst other factors, behavior that is harassing (including stalking), failure to provide the necessaries of life and sexual, psychological and financial abuse.
In terms of how the amendments protect children against family violence, as we discussed previously in Part 2 of this blog series, one of the factors for the courts to consider when making a parenting or contact order is whether there is any presence of family violence (best interests of the child factors). In addition, the amendments add a separate section on ‘Factors Relating to Family Violence’ which enlist factors for the courts to assess the impact of family violence on the child.
The amendments introduce and define “family dispute resolution process,” as “a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law.”
In addition, the Act places a duty on parties to attempt to settle conflicts through these out-of-court processes rather than court proceedings where possible. Further, it imposes new duties and obligations on legal advisers to encourage clients to try a family dispute resolution process, unless it is inappropriate to do so. An inappropriate situation, for example, would be where there is the presence of violence or where safety of a client is at risk. In these situations family advisers will not encourage the family dispute resolution process.
Enforcement of Family Support Obligations
The enactment modifies the Garnishment, Attachment and Pension Diversion Act to give priority to family support obligations,specifically that a garnishee summons for a maintenance or support obligation will be honoured before any other garnishee summons.
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