The Divorce Act Changes Explained
(Section 2(1), Divorce Act)
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
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and(i) the killing or harming of an animal or the damaging of property; (violence familiale)
What is the change
The amendment defines “family violence” in the context of the best interests of the child.
Reason for the change
Family violence can take many forms and can cause significant harm to both victims and witnesses. The new definition includes not only violent acts, but also the child’s exposure to such acts. “Family violence” means conduct that
- is violent, or
- is threatening, or
- forms a pattern of coercive and controlling behaviour, or
- causes a family member to fear for their safety or the safety of another individual.
The definition clarifies that the behaviour does not have to be a criminal offence or meet the criminal threshold of “proof beyond a reasonable doubt” to be considered family violence under the Divorce Act.
A child’s direct exposure to family violence (for example a child seeing or hearing the violence) or indirect exposure (for example, a child seeing that a parent is fearful or injured) is recognized as family violence and child abuse.
The definition also includes a non-exhaustive list of different types of behaviour that could be considered family violence:
- Physical abuse, such as punching, slapping, kicking and forcible confinement. Actions taken by someone to protect themselves or another person are excluded.
- Sexual abuse, including sexual assault, forcing someone to watch violent pornography, or forcing someone to watch other people have sex.
- Threats to kill or cause bodily harm to another person, such as a threat to physically harm a child’s friend.
- Harassment and stalking.
- Failure to provide the necessities of life, such as preventing a family member from receiving required medical attention.
- Psychological abuse, such as a pattern of ridiculing, yelling at and criticizing a family member. To be considered family violence, the abuse must be threatening, constitute a pattern of coercive and controlling behavior, or cause a family member to fear for their safety or for the safety of another person.
- Financial abuse, such as not giving a spouse access to their bank account or paycheque, or preventing them from working. Such behaviour often aims to coerce and control a family member.
- Threats to kill or harm an animal or to damage property, or actually causing that harm.Such threats and actions often aim to coerce, control or cause fear.
March 1, 2021.
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