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Family Violence During Divorce

Rates of family violence are steadily increasing within Canada. The newly amended Divorce Act, which came into force on March 1st, 2021 has attempted to mitigate issues of family violence facing Canadians during a divorce.

In the newly amended Divorce Act, Family Violence is defined as:

“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 behavior 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 – and includes: physical abuse…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”.

Under the newly amended Divorce Act, there are improved remedies for a parent experiencing family violence. When considering the best interests of the child the Court must now consider any family violence and its impact on:

“the ability and willingness of any person who engaged in family violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child”.

In other words, Courts are now required to consider a history of family violence and its impact on the child when making a determination on parenting. There are also express exceptions to notice requirements within the Divorce Act for individuals at risk of family violence.

Alberta Courts have been implementing these changes. For example, in the recent Alberta Court of Queen’s Bench decision of CMZ v JLZ, 2021 ABQB 700 the Honourable Justice Labrenz reasoned as follows at paragraph 123:

“As I consider the best interests of the children, referenced by the factors found in s. 16 of the Divorce Act, I am directed to give primary consideration to the physical, emotional and psychological safety, security and well-being of the children. I must consider not only the physical danger to the children, but I must also consider Justice Price’s [the case management Judge] findings that JLZ [the Defendant mother] has been harmfully alienating the children and inflicting family violence upon them”.

Further, at paragraph 137 Justice Labrenz reasoned that an investigation into family violence requires the court to “consider the nature, seriousness and frequency of the violence, along with the physical, emotional and psychological harm to the child”.

Therefore, the maximum contact principle, in which the Court presumes that it is in the best interests of the child to have maximum contact with both parents, is now subject to a determination on family violence where relevant. At present it is unclear if these amendments go far enough to protect families and children from violence, but it is a step in the right direction and can be determinative of the outcome of your case.

2021-11-17T15:32:06+00:00November 17, 2021|Family Law|
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