The Divorce Act Changes Explained

Best interests of the child

Family violence
(Section 16(3)(j), Divorce Act)

New section

(j) any family violence and its impact on, among other things,

  1. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
  2. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
Old section


What is the change

The court must consider the impact of family violence on parenting and contact arrangements, including its impact on the ability and willingness of the person who engaged in family violence to care for and meet the needs of the child. In cases of family violence, the court must also consider whether to require the parties to co-operate on matters related to the child.

Reason for the change

In Canada, there are significant rates of family violence against children and spouses both during and after separation. Separation can be a particularly risky period for spousal violence.

Evidence indicates that family violence has wide-ranging effects on victims and families, including long-term impacts on the behaviour, development and physical, psychological and emotional health of the child.

Prior to these amendments, the Act made no reference to family violence. Now courts will have to consider the relevance of any family violence to the parenting arrangements for a child.

To assess the ability and willingness of a perpetrator of family violence to care for and meet the needs of the child, the court must consider what the history of family violence demonstrates about that person’s ability to parent in the child’s best interests. For example, the court would need to consider whether the person

In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence.

To help courts assess the impact, severity and risks of family violence, s 16(4) provides a non-exhaustive list of additional criteria related to family violence.


March 1, 2021.