451-00921 (Justice)

The Government of Canada is committed to making the family justice system as fair and safe as possible for all, including for victims of family violence.

Amendments to the Divorce Act came into force on March 1, 2021, through former 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 and include changes aimed at promoting safe and appropriate responses in cases involving family violence. The amended Divorce Act contains a broad evidence-based definition of family violence, which recognizes its many forms and the significant harm it can cause to both victims and witnesses. The definition also includes a child’s direct or indirect exposure to family violence and clarifies that behaviour does not have to be a criminal offence to be considered family violence under the Divorce Act. The definition also includes conduct that forms a pattern of coercive and controlling behaviour. Along with physical violence, a controlling partner might resort to emotional, psychological, sexual, financial or other forms of abuse, such as litigation abuse.

The amended Divorce Act requires the court to consider the impact of any family violence on the best interests of the child when determining parenting arrangements. This includes the impact of family violence on the ability and willingness of any person who engaged in the family violence to care for the child and meet the needs of the child. It also requires the court to consider the appropriateness of making an order requiring parents to cooperate on issues affecting the child. The amended Act sets out a list of specific factors to help judges determine the impact of the family violence, such as the nature and seriousness of the violence and the harm or risk of harm caused by it. When considering the best interests of the child, the court is required to give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being.

Cases where children resist or refuse contact with a parent are often challenging and complex. Abusers may attempt to blame the other parent for the child’s resistance to spending time with them and may make unfounded claims of alienation. Research shows that it is not uncommon for allegations of alienation to be made in family law cases in response to allegations of family violence. Abusers may make such allegations to try to control and harass a former partner through the family justice process.

The best interest of the child remains the sole legal test for decisions concerning parenting arrangements. In determining the best interests of the child in a case where there is an allegation that a child is resisting contact with a parent, the court will examine the circumstances of the case to determine whether the child is in fact resisting contact and, if so, why this is occurring. In cases where family violence is also alleged, the court will consider the specific criteria related to family violence in determining the child’s best interests under the Divorce Act.

Beyond the courts, the Government of Canada recognizes that education and training on family violence for those working in family law are extremely important. To this end, the Department of Justice released numerous educational materials to support the successful implementation of the previous amendments.

In 2022, JUS launched an evidence-based toolkit – the HELP Toolkit – to help legal advisers identify and respond to family violence in their family law cases. It is a tool designed specifically for family law legal advisers to use in identifying and responding to family violence. The HELP Toolkit includes various materials including “Rejection of a Parent by a Child”. The Department of Justice is also providing funding to the Ontario Association for Family Mediation to adapt the HELP Toolkit to apply in mediation practices, with a focus on gender-based violence (GBV) and coercive control.

In addition, the Department of Justice offers a free online course called Family Violence and Family Law for Legal Advisers. Both the course and the HELP Toolkit contain information on rejection of a parent by a child, assessing the child’s views and safety planning. Public legal education and information material are also available to assist parents who are divorcing or separating, including in cases involving family violence.

In 2022, the National Judicial Institute (NJI), an independent, judge-led organization that provides and coordinates judicial education in Canada, received federal funding to develop a national online course for judges in Canada on intimate partner violence (IPV) and family violence in the family justice system. This bilingual online course on IPV and family violence will be available to all judges in Canada, including provincial court judges.

As part of efforts to advance the Federal GBV Strategy, the Government of Canada has invested in initiatives to support survivors and victims of GBV and recognizes it is important to ensure the family justice system responds to the needs of victims of IPV. The Government remains committed to supporting the National Action Plan to End GBV and has renewed funding on an ongoing basis to address GBV in the criminal and family justice systems.

The Government of Canada continues to carefully monitor the implementation of the 2021 Divorce Act amendments and to analyze additional proposals to better protect children from the harmful effects of family violence.