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Divorce Act Reform:

Progress Made, but More Needed

Penny Bain

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. At press time Bill C-22 had received second reading and been referred to a hearing by the Standing Committee on Justice and Human Rights scheduled for late May, 2003.

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:

-- 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
• the appropriateness of making an order that would require the spouses to cooperate on issues affecting the child

The Institute is concerned that the proposed changes are not sufficient to ensure that children are protected from the risk of future harm resulting from intimate-partner violence. The Bill does not ensure that the court will receive all the information necessary to make decisions about the impact of violence on the child and to mitigate the risk of harm to the child during future “parenting time.” The Bill does not specifically indicate that the safety of the child is paramount.

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
• specification of violence risk factors
• a definition of circumstances in which shared parenting is inappropriate
• requirement of supervised parenting time (visits) if there is violence
• provisions for supervised parenting time (visits) with trained supervisors and adequate exchange resources
• a rebuttable presumption that the Court will not change a supervised visit to an unsupervised order
• a requirement that lawyers disclose violence-related orders to the Court
• requirements that parenting assessors take family violence training and consider cultural issues
• a requirement for parenting assessors to include disclosures in reports
• a requirement for non-disclosure of abused parents’ addresses
• a statement that flight from the home by an abused spouse not be a factor
• a statement that mediation only take place if abuse is not a factor
• authorization for judges to set aside agreements made under threat of violence
• increased access to legal aid

For more information on the Institute’s position regarding Bill C-22, visit us at www.bcifv.org. To express your views regarding the Bill, write to the Minister of Justice, the Standing Committee on Justice and Human Rights, and/or your Member of Parliament.