This enactment amends the Divorce Act to, among other things,

(a) require legal advisers who undertake to act on a spouse’s behalf in a divorce proceeding to assess the risk of family violence and, if there is a risk, to take steps to implement an appropriate plan;

(b) provide the means by which a court may more accurately assess the impact of coercive control on a parent-child relationship so as to ensure that children are protected from domestic violence after a separation or divorce;

Preamble

Whereas the primary focus of family law must be to promote the safety, dignity and well-being of all family members, particularly children and survivors of family violence;

Whereas courts and decision-makers must be guided by the best interests of the child and evidence-based understandings of trauma, coercive control and the dynamics of abuse rather than gendered myths and stereotypes;

Whereas claims that one parent has engaged in conduct to undermine the relationship of their child with the other parent are being used in family court to justify changes in parenting time, sometimes leading to the removal of children from the care of their preferred parent;

Whereas there is increasing concern that such claims may be used in cases of domestic abuse or child sexual assault to support the accused parent and provide the accused parent with continued access to their children, thereby putting the children’s safety at risk;

Whereas victims of spousal violence sometimes choose to remain in an abusive relationship rather than lose access to their children;

And whereas Parliament is committed to upholding its obligations under the Convention on the Elimination of All Forms of Discrimination Against Women, which calls for the protection of survivors of gender-based violence, and the Convention on the Rights of the Child, specifically Article 12, which prioritizes the best interests of a child, affirming that a child who is capable of forming their own views has the right to express their views freely in all matters that affect them and to have those views given due weight in accordance with their age and maturity;

Now, therefore, His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Reconciliation

7.‍7 (1) Unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, Insertion start which circumstances include evidence of a risk of family violence Insertion end , it is the duty of every legal adviser who undertakes to act on a spouse’s behalf in a divorce proceeding

• (a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, Insertion start which circumstances include evidence of a risk of family violence Insertion end ;

Duty to assess risk of violence

(2.‍1) It is the duty of every legal adviser who undertakes to act on a spouse’s behalf in a divorce proceeding to consider whether there are reasonable grounds to believe that there is a risk of family violence towards the spouse or another family member that could adversely affect

• (a) the safety of the spouse on whose behalf they act or the safety of a family member of the spouse; or

• (b) the ability of the spouse to negotiate a fair agreement.

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Duty to implement a plan

(2.‍2) If there are reasonable grounds to believe that there is such a risk of family violence, it is the duty of the legal adviser to take steps to implement an appropriate plan, ensure that the family has a safety plan and inform the spouse of the support services known to the legal adviser.

Adjournment

(2)  Insertion start On request by both spouses Insertion end at any stage in a divorce proceeding, the court Insertion start may Insertion end

• (b) with the consent of the spouses and to assist Insertion start them Insertion end to achieve a reconciliation, nominate

• (i) a person with experience or training in marriage counselling or guidance, or

• (ii) in special circumstances, some other suitable person.

• (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child, Insertion start taking into consideration any evidence of family violence Insertion end ;

• (i) the ability of any person who engaged in the family violence to care for and meet the needs of the child, and

Factor not to be considered

(3.‍1) In determining what is in the best interests of the child, the court shall not take into consideration any allegation that a spouse has, or is likely to, through deliberate manipulation, persuade or encourage a child to become estranged from or resist contact with the other spouse.

Exception

(3.‍2) Despite subsection (3.‍1), the court may consider evidence of deliberate and repeated attempts by a spouse to interfere with a child’s relationship with the other spouse if

• (a) the spouse who is alleged to have engaged in the attempts to interfere has engaged in family violence;

• (b) the evidence is relevant to a determination of the best interests of the child; and

• (c) the evidence is not presented to support an allegation of conduct described in subsection (3.‍1).

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• (g)  Insertion start evidence that Insertion end any steps taken by the person engaging in the family violence to Insertion start change their behaviour will Insertion end improve their ability to care for and meet the needs of the child and Insertion start will Insertion end prevent further family violence from occurring; and

Myths and stereotypes

(5) In considering the impact of any family violence under paragraph (3)‍(j), the court shall not infer that it no longer occurs or has ceased to have an impact, or that any reports or complaints of family violence were unreliable, inaccurate or exaggerated, solely on the basis of any of the following grounds:

• (a) the spouses have separated or a divorce proceeding has commenced;

• (b) there were no reports or complaints of family violence prior to separation, including to a police authority or child welfare agency, or there have not been any such reports or complaints since separation;

• (c) no criminal charges were laid in respect of family violence, or allegations were withdrawn, there was no intervention on the part of a child welfare agency or, in the case of a trial for an offence involving family violence, a finding of not guilty is entered;

• (d) allegations of family violence are made late in the proceedings or were not made in prior proceedings;

• (e) in a proceeding under this Act or in a criminal proceeding, there are inconsistent statements or conflicting evidence in relation to incidents of family violence;

• (f) a spouse continues to live with or maintain a financial, sexual or business relationship with their spouse, or previously left them but has resumed cohabitation; or

• (g) there are no visible physical injuries or outward signs of fear.

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Decision to leave household

(5.‍1) A decision by a spouse to leave a household in which family violence occurs to reside in a shelter or other temporary housing or to leave the province with any or all children of the marriage, with or without giving notice, is not, in and of itself, contrary to the best interests of the child.

Parenting time — no presumption

(6) In allocating parenting time, the court shall not presume that

• (a) the parenting arrangement that is most consistent with the best interests of the child is one that allocates parenting time and decision-making responsibility to both spouses or equally between the spouses; or

• (b) it is in the best interests of the child that they maintain ongoing contact with each spouse.

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Evidence from child

(1.‍1) Before making an order under subsection (1), in order to determine a child’s views and preferences, the court may obtain information or evidence from the child directly in writing or by means of an interview with the child in camera in the presence of an amicus curiae if

• (a) it is in the best interests of the child to provide the information or evidence;

• (b) both spouses agree; and

• (c) the court is of the opinion that the safety and privacy of the child would not be compromised and there is no other appropriate way to obtain the information.

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Disclosure

(1.‍2) Any information or evidence obtained under subsection (1.‍1) may be disclosed to the spouses only if the court is of the opinion that disclosure is in the best interests of the child.

Not permitted in parenting order

(4.‍1) The court shall not, in the order,

• (a) restrict the parenting time of a spouse with whom the child has a close connection for the purpose of improving a child’s relationship with the other spouse; or

• (b) require a child to attend reunification therapy or allow a spouse to consent to the child attending reunification therapy without seeking the consent of the other spouse.

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Definition of reunification therapy

(4.‍2) In subsection (4.‍1), reunification therapy includes any intervention, program, treatment, service or practice whose purpose is to create, repair or reestablish a relationship between a child and a parent from whom the child is estranged or whom the child has rejected.

• (a) the reasons for the relocation, Insertion start including whether the reasons relate to family violence Insertion end ;

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  (b.‍1) the impact on the child of prohibiting the relocation, in particular in respect of the child’s relationship with the person who intends to relocate the child;

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• (g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order Insertion start is likely to comply with Insertion end their obligations under family law legislation, an order, arbitral award, or agreement, Insertion start taking into account the impact of family violence on their ability to comply with their obligations Insertion end .

Presumption

(2) In deciding whether to authorize a relocation of the child, the court shall presume that the person who intends to relocate the child will relocate regardless of whether the child’s relocation is prohibited.

Factor not to be considered

(3) In making a decision under subsection (1), the court shall not take into consideration any arrangement regarding the exercise of parenting time by the parties in their current places of residence.

Burden of proof — person who objects to relocation

16.‍93 (1) If, in accordance with an order, arbitral award, or agreement, a child of the marriage spends the majority of their time in the care of the party who intends to relocate the child, the court must authorize the relocation, unless the person opposing the relocation proves that

• (a) the relocation is not in the best interests of the child; and

• (b) it is in the best interests of the child to reside primarily with the person opposing the relocation.

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Burden of proof — person who intends to relocate child

(2) If, in accordance with an order, arbitral award, or agreement, a child of the marriage spends the majority of their time in the care of the party who opposes the relocation of the child, the person intending to relocate the child has the burden of proving that the relocation would be in the best interests of the child.