July 26, 2021
Divorce Act update will help protect children, mothers from violence and coercive control
When the government amended the Divorce Act of Canada earlier this year, it included the Best Interests of the Child (BIC). These long-awaited updates require domestic violence to be presumed when determining the best interests of the child and parenting plans, one step towards keeping women and children safe.
Family violence is defined in the Divorce Act as any conduct that is violent, threatening or a pattern of coercive and controlling behaviour, or that causes a family member to fear for their safety.
- Co-author of this article with Beth Archer-Kuhn is Natalie Beltrano, University of Windsor
Prior to the amendments, the BIC standard was guided by provincial not federal legislation, whereby only four provinces (British Columbia, Alberta, Manitoba and Nova Scotia) named domestic violence as a factor in the BIC. What this means is that when parents separate or divorce, decisions that are made about children must now take into account whether family violence is a component of the family dynamics regardless of where one lives in Canada.
Professionals working with and making decisions or recommendations to families about co-parenting need to better understand coercive control as an important component of domestic violence.
Family violence includes coercive control
Domestic violence is defined in research literature as both physical violence and coercive control.
The amended Divorce Act outlines that coercive and controlling behaviours are a pattern of abusive behaviour used to control or dominate another family member; these may include emotional, psychological, sexual, financial or other forms of abuse.
Read more: Why domestic violence victims often feel retraumatized by police
Coercive control can instil fear without physical violence, and can continue after the relationship ends. This is important for those making decisions about parenting arrangements because the impact of domestic violence on children increases their risk for emotional and behavioural problems throughout their lives.
How does new legislation change practices?
Prior to the amendments, women who experienced domestic violence were silenced by their lawyers as a result of the law itself.
One challenge inherent in Canadian family law is solicitor-client privilege and the duty of confidentiality that can prevent lawyers from disclosing admissions of violent or abusive behaviour from their clients.
This means that lawyers may be well aware that coercive control defines a relationship and still argue on behalf of their perpetrating client for shared parenting. Disclosing coercive control until now has been subject to a lawsuit or professional misconduct.
The future harm exception does allow lawyers to disclose knowledge of threats or acts of harm, but this is held to a high standard of “risk of serious bodily harm or death.”
What’s still unknown is how the new amendments will change legal practices specific to domestic violence and shared parenting.
A correlation between domestic violence and co-parenting
We recruited mothers to participate in our study through community stakeholders, such as domestic violence shelters and pediatricians, as well as a paid Facebook strategy. Through our search efforts, we were able to recruit 84 women across Alberta, Manitoba and Ontario. Our recent study revealed that all of our participants with young children in shared parenting arrangements experienced domestic violence, defined as physical violence and coercive control. This research will be published later this year and is yet to be peer-reviewed.
Read more: Co-parenting in the coronavirus pandemic: A family law scholar's advice
We used a 56-item Co-parenting Across Family Structures tool, or Co-PAFS scale, that is intended to measure effective co-parenting as well the Hurt, Insulted, Threatened and Screamed (HITS) scale, that measures domestic violence in our study.
Our research found a correlation between domestic violence (the higher the score, the more severe the violence) and Co-PAFS scores (the higher the score the more conducive to healthy co-parenting). We found that the lower the domestic violence scores, the higher the co-parenting scores.
Using the Co-PAFS scale can help the courts make shared parenting orders.
Impacts on women and young children
Our study found that women who share parenting at least 40 per cent of the time had similar scores on measures of domestic violence, anxiety, depression and child development to women who shared parenting less than 30 per cent of the time.
This suggests that domestic violence and coercive controlling behaviours are occurring in shared parenting arrangements more than was previously thought; the assumption has been that parents who share parenting 40 per cent of the time or greater are able to do so because they have a healthy relationship and are able to put the needs of the children first.
Read more: Co-parenting in the time of coronavirus: if you and your ex don't agree, what are your rights?
These findings are critical and require further exploration because family court orders for shared parenting (40 per cent or more time with each parent) occur routinely in Canada in situations of domestic violence and have negative impacts on women and young children.
The amendments to the Divorce Act in Canada will require us to better understand the day-to-day practices of those supporting families through the separation/divorce process and parenting arrangements for children. That will help ensure parenting plans reflect considerations of safety for survivors of domestic violence and their young children.