Subject: The proposed amendments to the Divorce Act (Bill C-22).

Background:

On December 10, 2002, the Minister of Justice announced proposed amendments to the Divorce Act relating to the factors to be considered in determining the custody of and access to children upon separation and divorce, as well as the terminology to be used in making such determinations. In 1997, a parliamentary committee, the Special Joint Committee on Child Custody and Access, was asked to assess the need for a more child-centred approach to family law policies and practices. In December 1998, the Committee released its report, For the Sake of the Children. The Minister of Justice then held a number of consultation meetings and solicited feedback from the public regarding a series of consultation questions. The Institute participated in the consultation meeting in Victoria in June 2001 and submitted written response to the feedback questions.

The proposed amendment repeals the use of the terms 'custody' and 'access' and provides that where parents cannot agree on the allocation of parenting responsibilities the court may make an order and shall take into consideration only the best interests of the child. In determining the 'best interest of the child' (Bill C-22, section 16.2), the court shall consider all the needs and circumstances of the child, including the following:

• the child's physical, emotional and psychological needs, including the child's need for stability, taking into account the child's age and stage of development;
• the benefit to the child of developing and maintaining meaningful relationships with both spouses and each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;
• the history of care for the child;
• any family violence, including its impact on:
• the safety of the child and other family members,
• the child's general well-being,
• the ability of the person who engaged in the family violence to care for and meet the needs of the child, and
• the appropriateness of making an order that would require the spouses to cooperate on issues affecting the child;
• the child's cultural, linguistic, religious and spiritual upbringing and heritage, including aboriginal upbringing or heritage;
• the child's views and preferences to the extent that those can be reasonably ascertained;
• any plans proposed for the child's care and upbringing;
• the nature, strength and stability of the relationship between the child and each spouse;
• the nature, strength and stability of the relationship between the child and each sibling, grandparent and any other significant person in the child's life;
• the ability of each person in respect of whom the order would apply to care for and meet the needs of the child;
• the ability of each person in respect of whom the order would apply to communicate and cooperate on issues affecting the child; and
• any court order or criminal conviction that is relevant to the safety or well-being of the child.

Bill C-22 does not direct judges as to the relative importance of these factors. For instance, it does not direct judges on how to balance potentially competing factors, such as the benefit of developing and maintaining meaningful relationships with both spouses versus a history of family violence.

Bill C-22 defines 'family violence' as "includes behaviour by a family member causing or attempting to cause physical harm to the child or another family member, or causing the child or another family member to reasonably fear for his or her safety or that of another person, but does not include acts of self-protection or protection of another person." Under section 16.2(4), "family violence is established on a balance of probabilities." The definition does not include psychological abuse of a spouse or child. However in determining what is in the best interest of the child, a judge may determine the relevance of evidence as to psychological harm caused to the child as a result of being exposed to the family violence.

Under the new regime, spouses apply not for "custody" or "access", but rather for an order relating to the 'exercise of parental responsibilities' under section 16(1), which could include 'parenting time' and/or decision-making responsibility under section 16(5). Under section 16(7) the court "may impose terms, conditions or restrictions in connection with the (parenting) order as it thinks fit and just."

Section 16.1 provides for contact orders in relation to any person other than a spouse (e.g. grandparents). Spouses would be awarded "parenting time", rather than "contact".

Discussion

1) Barriers to Introducing the Issue of Family Violence Reduced

Under the current Divorce Act (1985) it is very difficult for parties to introduce evidence that brings the court's attention to reported or unreported violence within the family. Section 16 (9) of the current Divorce Act provides that: " The court will not consider past conduct unless it is relevant to the ability of the person to act as a parent of the child." The judge may or may not consider a parent's conduct that indicates risk of harm to the child when making custody and access orders. Further section 16(8) provides that: "The court, in making an order for custody or access, shall only take into consideration the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child." The current Act does not specify that spousal abuse or related risk of harm, or indeed child abuse, must be considered in determining the needs of the child.

Finally, section 16 (10) of the current Divorce Act provides that: "In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. For that purpose, the court shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact." Therefore a parent who alleges spousal or child abuse by the other parent risks losing custody because of the implied lack of willingness to facilitate contact under the 'maximum contact' or 'friendly parent' rule. This is clearly not in the best interest of the child and often puts primary caregivers and children at further risk of harm. (Cohen, et al. 2001)

Bill C-22 eliminates the current Divorce Act section 16 entirely and replaces it with directions regarding orders for parenting time, decision-making responsibility, contact orders for non-spouses, and factors to be considered in determining the best interests of the child. The elimination of the 'friendly parent' rule removes one barrier to raising the issue of family violence in child parenting proceedings. However, a version of the maximum contact rule re-appears under the factors to be considered in determining the best interests of the child, specifically in s. 16.2(b).

2) Definition of Family Violence

Comparative studies show that the definition of family violence in the proposed Canadian Divorce Act is weaker than that in other jurisdictions. In New Zealand courts and legislation have defined family violence as encompassing 'psychological abuse' of another family member or child, "including, but not limited to, intimidation, harassment, damage to property, threats of physical abuse, sexual abuse or psychological abuse."

Also the New Zealand legislation specifies the factors to be considered in determining whether the child will be safe: "In considering whether or not a child will be safe while a violent party has custody of or access to the child, the Court shall have regard to the following matters:

• a. the nature and seriousness of the violence used;
• b. how recently the violence occurred;
• c. the frequency of the violence;
• d. the likelihood of further violence occurring
• e. the physical or emotional harm caused to the child by the violence;
• f. whether the other party to the proceedings
  • i. considers that the child will be safe while the violent party has custody of or access to the child,
  • ii. consents to the violent party having custody of or access (other than supervised access) to the child;
• g. the wishes of the child, if the child is able to express them, and having regard to the age and maturity of the child;
• h. any steps taken by the violent party to prevent further violence occurring;
• i. such other matters as the Court considers relevant."

These provisions explicitly direct judges to consider the impact of violence on the children and their safety. The Canadian bill is not as clear.

3) Parenting Orders and Child Safety

The new language in Bill C-22 may give rise to expectations that parents will be awarded "parenting time" and/or "decision-making responsibility" regardless of factors such as abuse. The Bill does not include provisions that caution against such orders in certain circumstances, for instance, where a child's safety is compromised as a result of abusive behaviour. Bill C-22 specifies that the court consider any family violence in determining the best interests of the child, but does not specify the factors that the judge must consider in determining if a child will be safe. The Act suggests that parents may expect to receive orders for 'parenting time'. Therefore courts may view a request to place limits on parenting time, such as requiring supervision by an independent third party in order to protect the safety of the child, as exceptional.

Irrespective of the statutory approach or the terminology used to describe parenting roles and responsibilities, the Divorce Act would be strengthened if it were to contain a clear, affirmative duty on the part of the court and counsel to inquire as to the existence, incidence, impact and risk of violence or abuse. In particular the Act should contain:

• A specific acknowledgement that exposure to spousal violence can constitute child abuse
• Provisions negating shared parenting time and/or shared decision-making in all cases in which the existence of family violence comes to the attention of the court
• A presumption against parenting time/visits in cases involving family violence, i.e. a reverse onus if one parent is abusive, so that that parent would have to show how they can make access/contact safe before they would be awarded access
• Explicit provisions regarding the supervision of parenting time/visits
• Standard review procedures concerning provisions in agreements or orders in abuse cases
• A direction to the court to monitor the welfare of children over time in abuse cases

The Bill also does not specify the type of evidence judges should consider about factors relevant to the child's safety. In non-crisis situations and where other evidence is not available, judges should be required to order assessments that include investigation of whether the violence occurred (including collecting third party evidence), the impact of the violence on the children (including psychological assessments of trauma and impact on child development) and the risk that violence will occur in the future. In particular child assessors should be given specific protocols for interviews to screen for abuse.

The proposed section 16(7) gives judges considerable discretion by providing that the court "may impose terms, conditions or restrictions in connection with the (parenting) order as it thinks fit and just." As mentioned above, orders under section 16 must take into account the best interests of the child, including "any family violence, including its impact on (i) the safety of the child and other family members (ii) the child's general well being .".

These are positive developments when compared to the silence of the current Divorce Act. However, the definition of family violence does not include psychological abuse, which can often be very serious. Moreover, does the requirement that the court consider the child's 'safety and general well being' provide sufficient direction to ensure that judges will receive evidence addressing the psychological harm caused by the child's exposure to violence against the non-abusive parent? Will the "terms, conditions, or restrictions" imposed by the court be informed by the known risk factors related to violence, and will the terms, conditions, or restrictions be sufficient to in fact ensure the safety of the child and non-abusive parent during visits or transition periods?

There is a paucity of supervised visitation centres with well trained staff across the country so that even when supervised parenting time orders are granted, children may be in danger due to the lack of adequate services. Supervisors must not only be available, but must be sufficiently trained to be able to pinpoint abusive or intimidating behaviour. They must understand the impact on a woman's or child's safety when these behaviours are not identified and addressed. Supervisors must understand the language spoken between the visiting parent and the child. We note also that Bill C-22 does not even provide explicit language for describing supervised parenting time. It might be preferable for the statute to indicate to judges that supervised orders are within their power and necessary in certain circumstances, including cases involving family violence.

4.) Mediation

Bill C-22 replaces the current section 9(2) with an obligation on the lawyer for a spouse or former spouse applying for an order under the Act to discuss the advisability of negotiating matters and inform clients of mediation services. Mediation is based on the premise that the parties seeking a mediated agreement come to the table voluntarily and with roughly equal power. In abusive relationships, one party (most often the man in a heterosexual relationship) holds an inordinate degree of power and control over his partner. Mediation is harmful to battered women and their children because women may not be able to express in the company of their abuser the reality of the relationship. Often, women enter into mediated agreements that may not meet their needs or those of their children because they are afraid of repercussions if they do not. Specifically, they are afraid of what their ex-partner may do to them or their children if they do not comply. Too often, mediators do not have the training necessary to identify the sometimes subtle dynamics of power and control and thus women's voices are silenced in this process. Or the mediator may not understand that immigrant women's understanding of English or their experience in making decisions may be limited. Their safety and the safety of their children are therefore jeopardized. [Bala, et al (19980; Braun, (2001); S. Goundry, et al (1998); Whittington, (1992).]

Position of the Institute

In order for children to be safe in post-separation parenting arrangements, the Institute recommends that the following further reforms to the Divorce Act be considered:

• an expanded definition of "family violence"
• a statement that the safety of the abused parent and children is paramount, i.e. a specific acknowledgement that exposure to spousal violence can constitute child abuse
• specification of violence risk factors
• a definition of circumstances in which shared parenting time and/or decision-making are inappropriate, i.e. a presumption against parenting time/visits or shared decision-making in cases involving family violence
• requirement of supervised parenting time (visits) in cases involving family violence
• a provision requiring the court to monitor the welfare of the children over time in cases of family violence, and to provide for supervised contact resources
• a rebuttable presumption that the Court will not change a supervised visit to an unsupervised order
• provisions requiring lawyers to disclose all evidence of abuse that comes to their attention, including a requirement that lawyers disclose violence related orders to the Court
• requirement that parenting assessors take family violence training, use appropriate interview protocols, and to consider cultural issues
• requirement that parenting assessors include disclosures in reports
• requirement of non-disclosure of abused parents' addresses
• clarification that flight from the home by an abused spouse not be a factor held against that spouse
• that mediation only take place if voluntary and if there is no evidence that abuse compromises the voluntary nature of mediation
• authorize judges to review and set aside agreements made under threat of violence
• increase access to legal aid

1. Expanded Definition of "Family Violence"

As in New Zealand, we suggest that family violence be defined as encompassing 'psychological abuse' of another family member or child, including, but not limited to, intimidation, harassment, damage to property, threats of physical abuse, sexual abuse or psychological abuse, or disturbing the peace of another.

Further the definition of family violence should include recognition that it includes a prolonged pattern of behaviour intended to control the victim through fear and isolation.

2. Making the Safety of the Abused Parent and Children Paramount

We suggest that the Divorce Act specify that the issue of safety shall always be the paramount concern for the court. For example, in making an order for parenting time (visits) by the abusive parent, safety of the primary caregiver and the child should be the first consideration. We suggest that the Act include a specific acknowledgement that family violence can constitute child abuse.

3. Specifying Violence Risk Factors

As in New Zealand, we suggest that the Divorce Act set out the following factors that a court must consider in assessing whether the child will be safe: "In considering whether or not a child will be safe while a violent party has custody of or access to the child, the Court shall have regard to the following matters:

• a. the nature and seriousness of the violence used;
• b. how recently the violence occurred;
• c. the frequency of the violence;
• d. the likelihood of further violence occurring
• e. the physical or emotional harm caused to the child by the violence;
• f. whether the other party to the proceedings
  • i. considers that the child will be safe while the violent party has custody of or access to the child,
  • ii. consents to the violent party having custody of or access (other than supervised access) to the child;
• g. the wishes of the child, if the child is able to express them, and having regard to the age and maturity of the child;
• h. any steps taken by the violent party to prevent further violence occurring;
• i. such other matters as the Court considers relevant."

The court should also be directed to have regard to whether the primary care giver feels safe from further violence.

4. Defining Circumstances in which Shared Parenting Time and/or Decision-Making are Inappropriate

The research indicates that judges should only consider an order for shared parenting time and/or shared decision-making where both parties agree, where both parents have an amicable relationship and where there is no issue of violence against women in relationships or child abuse. Where the parties are not in agreement or where violence is used to obtain 'agreement', shared parenting time or joint decision-making can result in an escalation of conflict and resulting trauma for the children. [See the Washington State and Australian experience with shared parenting, e.g. Boyd (2003)]. In particular, we suggest that the Act include a presumption against parenting time and/or decision-making in cases involving family violence. This could include a reverse onus as in California, i.e. if one parent is abusive that parent would have to show how they can make access/contact safe before they would be awarded parenting time.

5. Requiring Supervised Parenting Time (Visits) if there is Violence

As in New Zealand, we suggest that the Divorce Act require that in an application for a parenting order for a visit "where the court is satisfied that the parent has used violence against the child or the other parent of the child, the court shall consider whether or not the order should be subject to any conditions for the purpose of protecting the safety of that other parent while the right of access conferred by the order is being exercised including while the child is being collected from, or returned to, that other parent."

6. Monitoring Child Welfare and Providing for Supervised Contact and Exchange Resources

In circumstances in which family violence exists there is a significant risk that the abuser will use visits to continue the abuse of the primary caregiver and/or the children. We suggest that the Act contain a provision requiring the court to monitor the welfare of the children over time in cases of family violence. We suggest that the Divorce Act should contain specific provision for parenting time (visit) supervision and exchange supervision. The safety of caregivers and children should be paramount. As in California, the Divorce Act could require those responsible for the administration of justice to develop standards for supervised contact and state that: "It is the intent of the Legislature that the safety of children, adults, and visitation supervisors be a precondition to providing visitation services. Once safety is assured, the best interest of the child is the paramount consideration at all stages and particularly in deciding the manner in which supervision is provided."

7. Creating a Rebuttable Presumption that the Court will not Change a Supervised Parenting Time (Visit) Order to an Unsupervised Order

We suggest that the Divorce Act direct judges to require that applicants who wish to vary a supervised parenting time (visit) order to an unsupervised order establish beyond a reasonable doubt that the safety of the primary caregiver and the children is ensured.

8. Requiring Lawyers to Disclose Violence Related Orders to the Court

As in Australia, we suggest that lawyers in civil custody and access applications should be required to make judges aware of criminal court orders. In particular, we suggest that the Act require lawyers to disclose all evidence of abuse that comes to their attention.

9. Requiring Parenting Assessors to Take Family Violence Training and to Consider Cultural Issues

Expert evidence on the impact of relationship violence on children should be available to judges in determining parenting orders. In jurisdictions like B.C, the average wait for a child custody assessment report is 9 to 12 months. More resources must be available in order to increase timely access to assessment services when needed.

We also suggest that both family court counsellors and private psychologists who conduct parenting and contact assessments for courts should be required by the Divorce Act to take family violence training. In California, anyone hired as part of Family Court Services staff must have training in the effects of domestic violence on children and staff must receive ongoing training on domestic violence issues in co-ordination with local domestic violence agencies. Further, psychologists who prepare parenting assessment reports must supply a certificate that they have had training in the effects of family violence on children. In particular we suggest that child assessors be given specific protocols for interviews to ensure that abuse is revealed if it exists.

Also parenting assessors who are not from the same background as the parents should consult an appropriate representative from the community to explain standards of conduct that may be different from those in the assessor's culture. However, consideration should be given to the appropriateness of the cultural differences in the Canadian context. For example, an abuser may use 'culture' as an excuse for conduct that is in fact not acceptable in any community. Also assessors and judges should keep in mind that the assessment is from a dominant cultural point of view and may not include an assessment of the cultural thinking of the person being assessed, resulting in an inaccurate assessment. Assessors should be required to take anti-racism and/or anti-homophobia training and should be diligent in their commitment not to replicate systemic abuse. Assessors who use interpreters should be aware of the need to ensure that the interpreter also understands and has experience in the culture of the person being assessed.

10. Requiring Parenting Assessors to Include Disclosures in Reports

We suggest that the Divorce Act require that parenting assessors include disclosures of family violence in their assessment reports.

11. Requiring Non-Disclosure of Abused Parent's Address

We suggest that the Divorce Act provide that an abused parent can request non-disclosure of her address if she is concerned about her safety or the safety of her children. Court documents can be served on a third party such as her lawyer.

12. Providing that flight from the Home Should Not be a Factor in Denying Orders for Parental Responsibilities

We suggest that the Divorce Act specify that judges not hold flight from the family home due to a reasonable fear of family violence against the fleeing parent when making parenting orders. The Divorce Act should also direct judges not to order the return of a child to another jurisdiction where doing so would create a significant risk to the safety of the child or a parent.

13. Restricting Use of Mediation

We suggest that the Divorce Act should caution against the recommendation or use of mediation in cases where there is violence in relationships. For example in Australia, a regulation expressly prohibits mediators from dealing with a dispute between parents where mediation is inappropriate because of violence or where there is any concern about the safety of the parties or their emotional, psychological, or physical health.

14. Authorizing Judges to Set Aside Agreements Made Under Threat of Violence

We suggest that the Divorce Act should specifically authorize judges to set aside agreements made under the threat of violence against women in relationships. We suggest that the Act also require courts to review all previous agreements or orders made in cases in which family violence is subsequently disclosed.

15. Improving Access to Legal Aid

Children and their primary caregivers require legal representation in order to ensure that the court receives appropriate evidence to assess the impact and risk of violence. The Federal Government should require all provinces to provide civil legal aid in all cases where there is a contested parenting application involving violence and the victim of violence cannot otherwise afford a lawyer. Eligibility criteria for legal aid should deduct childcare costs from income prior to determining financial eligibility.

Works Cited

Bala, N. et al (1998) Spousal violence in custody and access disputes: recommendations for reform Status of Women Canada

Boyd, Susan (2003) Child Custody, Law, and Women's Work Oxford University Press, Chapter 9, pp. 196-212

Braun, J. (2001) Child Custody and Access in the Context of Family Violence: a review of the literature and annotated bibliography BC Institute Against Family Violence

Cohen, Jonathan, and Gershbain, Nikki (2001), "For the Sake of the Fathers? Child Custody Reform and the Perils of Maximum Contact", Canadian Family Law Quarterly, 19: 121-83.

Goundry, S. et al (1998) Family Mediation in Canada: Implications for Women's Equality Status of Women Canada.

Whittington, B. (1992) Mediation, Power and Gender: a Critical Review of Selected Readings University of Victoria.

BCIFV Related Publications

Bain, Penny (Summer 2000 Newsletter) Family Violence: an essential factor in determining custody and access

Bain, Penny (Summer 1999 Newsletter) The Role of Mental Health Professionals in Assessing Allegations of Domestic Violence in Custody and Access Proceedings

Braun, Joan (2001) Child Custody and Access in the Context of Family Violence: a review of the literature and annotated bibliography

Braun, Joan (Summer 1999 Newsletter) Custody Order or Disordered Custody?

Cooper, M. (1994) Wasted Lives: The Tragedy of Homicide in the Family

Coulis, Catherine (Spring 1994 Newsletter) Custody and Access in British Columbia

Klymchuk, Kai-Lee; Cooper, Mary and Pacey, Katrina (2002) Children Exposed to Partner Violence: An Overview of Key Issues

Kropp, P. R., Hart, S. D., Webster, C. D. & Eaves, D. (1995) Manual for the Spousal Assault Risk Assessment Guide, 2nd Edition

Taylor, Ruth Lea (Fall 1994 Newsletter) The Abuse of Custody

Taylor, Georgina and Quinby, Ajax ( Spring 1994 Newsletter) Custody and Access or Contact and Control?