By: Logan Kachur
For the first time in decades, significant changes have been made to the Divorce Act. As of
March 1, 2020 one of the changes in this Federal legislation contains new wording that aims to
address the threat of family violence. Our office has already received several inquiries from
clients wondering how this will affect them. Here is what you need to know:
1) What is Family Violence? – It can take many forms, and involves words or actions one
experiences themselves, or observes between other family members. The Divorce Act
defines it broadly as: any behaviour that is violent, or threatening, or a pattern of
coercive and controlling behaviour, or behaviour that causes a family member to fear
for their safety or the safety of another person.
2) Help is available – If you or someone in your family has experienced family violence,
contact counsellors, the police, or a lawyer for advice. Our lawyers can provide you with
that advice and provide recommendations for counsellors.
3) “New” Language – While the specific language regarding family violence is a new
addition to the Divorce Act, the idea that courts would consider violence as a factor in
determining the best interests of the child is not a new phenomenon. The new
language lists certain factors Judges must weigh in considering the child’s best interests,
including the nature, seriousness and frequency of the abuse, the risk of harm to the
child, and whether the person engaging in the violence has taken any steps to prevent
further violence and improve their parenting, such as completing a parenting course for
people who have abused their children or partner.
4) Children’s Best Interests – Family violence considerations will have an impact on how
courts craft parenting orders, taking into consideration what type of parenting
arrangement will be best for the child.
5) Financial Impact – It is our view that this Divorce Act change is unlikely to impact
financial issues, such as property division or support orders. Property division is
governed by provincial legislation, not the Divorce Act and family violence of the parties
is rarely a factor in determining the division of assets. As well, spousal support and
partner support claims largely remain a no-fault area of legislation. Therefore, it is
unlikely that a larger amount of spousal support or a longer period of spousal support
will be granted solely because there was family violence during the relationship. Finally,
child support claims are governed by the Child Support Guidelines, which do not provide
for awards being influenced by any violence claims.
If you have questions about this change to the Divorce Act and how they might impact your
family matter, please reach out to our Family Law Group.