Bill C-78 was the first legislative update to the Divorce Act in more than 20 years. The bill modernized the Act by replacing the language of custody and access with legal principles focused on the parent-child relationship; providing greater guidance to courts and parents for the determination of the best interests of the child; addressing family violence; providing a framework for the relocation of a child; and simplifying processes for the recalculation and enforcement of family support obligations.
In 2018, NAWL and Luke’s Place submitted a parliamentary brief on Bill C-78 to the House of Common’s Standing Committee on Justice and Human Rights. The brief was endorsed by 31 organizations from across the country. On November 19 and 21, 2018, over a dozen feminist and equality seeking organizations appeared before the Committee. When the Bill moved to the Senate, NAWL appeared again before the Standing Senate Committee on Legal and Constitutional Affairs on June 6, 2019, alongside the Fédération des maisons d’hébergement pour femme and Regroupement des maisons pour femmes victimes de violence. Bill C-78 received Royal Assent and became law on June 21, 2019.
This is a joint brief on 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 (hereinafter Bill C-78) by Luke’s Place and the National Association of Women and the Law (NAWL). It is informed by multiple consultations with feminist lawyers, academics, advocacy and frontline service organizations.1This Brief was prepared by Suki Beavers and Anastasia Berwald (NAWL) and Pamela Cross (Luke’s Place). NAWL and Luke’s Place gratefully acknowledge the many contributions that informed the development of this brief, including those made by the following organizations: Action Ontarienne contre la violence fait aux femmes; the Barbra Schlifer Commemorative Clinic, the BC Society of Transition Houses, the Canadian Council of Muslim Women, the Canadian Women’s Foundation, the DisAbled Women’s Network of Canada, Femmes Autochtones du Québec, Harmony House, LEAF (Women’s Legal Education and Action Fund), Ontario Association of Interval Transition Houses, the Native Women’s Association of Canada, Ottawa Coalition to End Violence Against Women , RISE Women’s Legal Centre, the South Asian Legal Clinic, Vancouver Rape Relief and Women’s Shelter, West Coast Leaf, Women’s Shelters Canada. NAWL and Luke’s Place also gratefully acknowledge contributions made by the following law firms and individuals: Athena Law, Equitas Law Group, Jenkins Marzban Logan LLP, Suleman Family Law, Professor Emerita Susan Boyd, Rachel Law, Hilary Linton, Professor Linda Neilson and Glenda Perry. Finally, special thanks to Lisa Cirillo, Lorena Fontaine, Martha Jackman, Anne Levesque, Cheryl Milne and Zahra Taseer (NAWL), and Carol Barkwell (Luke’s Place) for their contributions.
Luke’s Place is a community organization in Durham Region, Ontario, that works to improve the family court experiences and outcomes of women leaving abusive relationships. This work includes both direct service delivery to women in Durham Region and systemic work such as research, resource development, training and education and law reform advocacy at the provincial and national levels.
NAWL is an incorporated not-for-profit feminist organization that promotes the equality rights of women in Canada through legal education, research, and law reform advocacy. NAWL has a long history of work and advocacy on women’s rights in the context of the separation and on the Divorce Act in particular, and on violence against women.
Both Luke’s Place and NAWL use an intersectional and gender-based analysis that focuses on the lived realities of women in all their diversity. Other factors such as race, Indigenous identity, ethnicity, religion, gender identity or gender expression, sexual orientation, citizenship, immigration and refugee status, geographic location, social condition, age, and disability influence women’s experiences. This is true in the context of violence against women, family violence, and divorce.
We recognize the devastating effects settlers’ colonialism has had on Indigenous women and communities. Any discussion of violence against women must consider these ongoing impacts as well as the actions and absence of actions by governments and individuals that continue to perpetuate them.
In this Brief, we have used gender-specific language to refer to those who are harmed by violence within the family and those who cause that harm. We believe it is important to acknowledge that, in Canada, women in all their diversity, and transgender, queer and gender non-conforming people are overwhelmingly those who are subjected to abuse, and men are primarily those who engage in abusive behaviour. We also acknowledge the diversity of women and families in this country and acknowledge the continued adverse impacts of misogyny, homophobia, transphobia and heteronormative culture.
We congratulate the Government for the many positive changes introduced in Bill C-78, several of which are long overdue. It is extremely positive to see that the best interests of the child remains the only test to be used in determining arrangements for children post-separation. The addition of a list of factors is also positive, including the explicit reference to Indigenous upbringing and heritage, inasmuch as the factors can provide guidance and support to courts. We are also pleased to see an extensive and inclusive definition of family violence. It is especially good to see the use of the language of coercive and controlling behaviour, as well as of fear. Inclusion of threats or actual harm to animals is very positive, as is the explicit inclusion of financial abuse. We also commend the inclusion of the duty to consider other orders or proceedings, such as criminal and civil protection orders.
At the outset, we want to recall the international and domestic obligations of the Federal Government in relation to the rights of all Indigenous peoples in Canada, and to Indigenous women specifically. The Government of Canada has committed to reconciliation with Indigenous peoples. Reconciliation is only possible through the renewal of the relationship between Indigenous peoples and Canada, on a nation-to-nation basis. This undoubtedly includes the consultation of Indigenous peoples, including indigenous women, during the law-making process, whenever new laws may affect them. To date, there is no evidence that the Department of Justice has engaged in meaningful consultation with Indigenous women’s groups on the potential impacts of C-78 on Indigenous women, their children, families and communities. We urge the Federal Government to do so prior to the finalization and enactment of C-78, in order to ensure the cultural heritage, safety, security, autonomy and rights of Indigenous women and their children are respected, protected and fulfilled, and not further endangered or violated by any impacts (direct or indirect) of any of the provisions of C-78.
As mentioned, there are many welcome additions and changes in Bill C-78. Luke’s Place and NAWL support having children and their well-being remain at the centre of the Divorce Act. We commend the important objective of reducing conflict, but note that care must be taken to ensure that conflict and family violence are not conflated, as this can be very dangerous. The requirements that are appropriate to place on parents in nonviolent, albeit conflictual, situations should differ from those that need to be put in place when an abused woman is involved in a divorce proceeding. Therefore, the majority of our recommendations focus on proposing specific changes that are required to help ensure that Bill C-78 will truly protect women at the end of an abusive relationship, as well as their children.
Our analysis identifies aspects of Bill C-78, including those that demand communication and cooperation between spouses, and the unintended ways in which some aspects of communication and cooperation expected of parents during divorce proceedings may obscure the realities of family violence and risk endangering women and children. The broad definition of family violence already included in the Bill demonstrates an understanding that family violence is complex and pervasive, and it is important that all aspects of the Bill are framed accordingly and with an understanding that the complexities and pervasiveness of the impacts of past violence, and indeed the ongoing occurrences of violence themselves, do not end simply because divorce proceedings begin. The evidence is clear that violence by husbands often intensifies in the months following a separation, making them the most lethal for many abused women. Consequently, requiring that mothers continue to communicate and cooperate with an abusive spouse is not only inappropriate, it is dangerous, and potentially lethal. Nonetheless, mothers who are legitimately incapable of or unwilling to cooperate with an abusive spouse are frowned upon by the courts and may even loose custody of the children to the abusive spouse. Therefore, cooperation and communication provisions need to be flexible and clearly indicate that they may not be appropriate and should not be required in cases where there has been any history of family violence.
The definition of family violence included in Bill C-78 rightly excludes self-defence. However, cases demonstrate a lack of understanding of the varieties of ways women resist and survive family violence. We hope that identification of patterns of coercion and control will help courts understand the dynamics of family violence and that acts of resistance and survival from abused women will cease to be considered acts of family violence.
We are in favour of maintaining rather than changing the habitual and clear terms of ‘custody’ and ‘access’ in the Divorce Act. In addition, we propose that the decisions that the parent with custody has the authority to make, and the types of decisions that can also be made by the parent with access, should both be further clarified in Bill C-78. We understand the sentiment behind the proposal to introduce new terms to replace ‘custody’ and ‘access.’ In principle, we agree that trying to shift the focus in divorce proceedings away from the perception that one parent wins a custody battle and the other loses it, to a focus on cooperation between parents so that the best interests of the child prevail, seems positive in cases where there has not been any violence. Unfortunately, the risks associated with the introduction of new language that will be subject to much interpretation and debate far outweigh the desired benefits, well-intentioned though they are. As we heard from lawyers and advocates who have been working with similar new language in some provincial family law regimes, there is no compelling evidence that the new language introduced has actually been effective in reducing conflict when the issues of custody, access and decision-making are in dispute. There is also legitimate reason to be concerned that this new language will cause interpretation conflicts in international matters, as it differs from the language used in the Hague Convention. This may prevent Canada from fulfilling its duties under the Convention. Moreover, the experiences of too many women who have been in abusive relationships reflect that abusive men exploit every angle of uncertainty and ambiguity they can find. Every ambiguity introduced into law can be turned into an opportunity for abuse, harassment and undermining of the mother. Therefore, it is safer for children and their mothers to have a clear, unambiguous allocation of custody, and clarity about who has the authority to make specific decisions about what is in the best interests of a child.
We have similar concerns about the proposed mandatory requirement that family dispute resolution processes be encouraged. Of course, some women find such processes empowering and/or better suited to their needs. However, family dispute resolution processes are not always better and particularly in cases involving family violence, they may not be appropriate at all. The flexibility of family dispute resolution processes serves some families extremely well, but in other circumstances, they can provide abusive partners with an opportunity to manipulate and continue being abusive. The Divorce Act should reflect and respect women’s autonomy and agency, and provide them with all the tools necessary to make free and informed decisions about which process is better and safer for them. Thus, rather than requiring legal advisers always ‘encourage’ dispute resolution, we recommend that Bill C-78 be revised to require all legal advisers to fully inform spouses about all processes available to them. This change will ensure that all women get information on the full range of processes available, so they can make a meaningful choice about which type of process is best suited to their circumstances and needs. We believe the current mention of “appropriateness” in the provision is not sufficient and will lead to family dispute resolution being the default process, including in cases of family violence in which it may be dangerous.
Finally, harmful myths and misconceptions about the realities and the dynamics of family violence still influence family law processes and decisions. Therefore, education on family violence and gender equality must be a crucial part of the reform of the Divorce Act, and implementation of Bill C-78. Consequently, Luke’s Place and NAWL recommend that Bill C78 include education requirements for all actors in the family law system (including lawyers, legal advisers, paralegals, mediators, arbitrators, judges, etc.).
WHEREAS in Canada, women are more likely than men to be victims of gender-based violence, including sexual assault and intimate partner violence;
WHEREAS Indigenous women, be they First Nation, Métis or Inuit, are disproportionately affected by gender-based violence and intimate partner violence;
WHEREAS family violence has profound negative consequences on families, children and Canadian society;
WHEREAS men2We have used gender-specific language to refer to those who are harmed by violence within the family and those who cause that harm. We believe it is important to acknowledge that, in Canada, women in all their diversity, and transgender, queer and gender nonconforming people are overwhelmingly those who are subjected to abuse and men are primarily those who engage in abusive behaviour. continue to be the main perpetrators of family violence and women continue to be the victims/survivors of family violence;
WHEREAS violence against women is a form of gender-based discrimination rooted in systemic inequalities between women and men;
WHEREAS family violence is experienced by women in multiple ways shaped by other forms of discrimination and disadvantage, which intersect with race, Indigenous identity, ethnicity, religion, gender identity or gender expression, sexual orientation, citizenship immigration and refugee status, geographic location, social condition, age, and disability;
WHEREAS transgender, queer, and gender non-conforming people are also disproportionally victims of family violence;
WHEREAS divorce proceedings and the family law system should protect women from violence and not ignore or exacerbate family violence;
WHEREAS it is in the best interest of children to protect them and their mothers from family violence; Whereas the Government of Canada is encouraged to continue to monitor the progress, across departments and agencies, of the status of women in Canada;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Violence against women is a form of gender-based discrimination, a manifestation of historical and systemic inequality between men and women; includes any act, intention or threat of physical, sexual or psychological violence that results in the harm or suffering of women in all their diversity, including restrictions on their freedom, safety and full participation in society; is inflicted by intimate partners, caregivers, family members, guardians, strangers, co-workers, employers, healthcare and other service providers; occurs in the home, at work, online, in institutions and in our communities; and is experienced by women in multiple ways shaped by other forms of discrimination and disadvantage, which intersect with race, Indigenous identity, ethnicity, religion, gender identity or gender expression, sexual orientation, citizenship immigration and refugee status, geographic location, social condition, age, and disability.
Family violence means 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 behaviour 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 any incident or pattern of;
Family violence perpetrated against women, is a form of violence against women.
Recommendation 4.1: section 16(3)(c), maintenance of relationship with other spouse or add exception of family violence.
Recommendation 4.2: Remove section (16)(3)(i), communication and cooperation with other spouse, or add exception of family violence.
Recommendation 4.3: Improve section 16(3)(j)
Recommendation #4.4: Require clear demonstration of improvement when steps have been taken to prevent family violence (16(4)(g))
Recommendation 4.5: Include acknowledgment of gendered nature of family violence within the factors to be considered in best interests of the child test
Recommendation 4.6: Clearly state that family violence is always relevant past conduct (16(5)and (6))
Recommendation 4.7: Include a new section (see below) that prohibits the court from relying on or being influenced by myths and stereotypes that deny, mischaracterize or minimize the impacts of family violence and/or blame the non-abusive spouse.
Recommendation 6.1: Include provision specifying presumptions not to be considered by the courts
Recommendation 6.2: Remove Maximum Parenting time section (16.2(1))
We are concerned that the expression “strength” in section 16(3)(b) reflects situations in which an abusive father uses his control to strengthen the relationship with his own family, while cutting ties with the mother’s. We believe the word ‘quality’ would better reflect the types of relationships worth preserving for the child’s best interests.
Custody/decision-making responsibility means the responsibility for making all significant decisions about a child’s wellbeing, including:
Day-to-day decisions: (3) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a)
has exclusive authority to may, subject to compliance with best interests of the child principles set out in this Act, make, during that time, day-to-day decisions affecting the child.
Day-to-day decisions shall not conflict: (4) Notwithstanding, section 16.2(3) a parent shall not, during allocated parenting time, make decisions that conflict with decisions made by the parent with custody/decision-making responsibility, or that are contrary to the best interests of the child.
Factors in determining whether to make order: (4) In determining whether to make a contact order under this section, after having considered factors referred to in section 16(3), the court shall consider all other relevant factors, including whether contact between the applicant and the child could otherwise occur, for example during the parenting time of another person.
Notice: Section 16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.
(3) The court may grant an exemption from all or any part of the requirements to give notice under subsection (2) if it is satisfied that
(4) An application for an exemption under subsection (3) may be made in the absence of any other party.
Recommendation 12.1: Clearly state that family violence should be taken into account, including if
opposition to relocation is an attempt to maintain coercive control
Recommendation 12.2: Include the mother’s safety as a factor for authorizing relocation
Burden of proof — person who intends to relocate child: 16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend
substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
Burden of proof — person who objects to relocation: (2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the
vast majority of their time in the care of the party who intends to relocate the child, the
party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
Family dispute resolution process: (7.3) To the extent that it is appropriate to do so, especially with regard to the risks that ongoing contact between spouses may pose in cases of family violence, the parties to a proceeding shall
try to resolve consider resolving the matters that may be the subject of an order under this Act through a family dispute resolution process, if it is relevant and appropriate to do so.
Duty to discuss and inform: (2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act
Education: (7.9) Family law services, courts, and legal advisers must complete family violence and family violence assessment training and practice requirements set out in the regulations