The Divorce Act Changes Explained

Best interests of the child

Factors relating to family violence
(Section 16(4), Divorce Act)

New section

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Old section

None.

What is the change

This amendment provides the court with a non-exhaustive list of additional factors related to family violence. The court must assess these factors along with other best interests of the child factors.

Reason for the change

There is growing evidence that each type of violence has unique impacts and effects. To determine which parenting arrangement is in the best interests of the child, the court must consider the particular nature and impact of the family violence.

At least four types of intimate-partner violence have been identified:

  1. Coercive and controlling violence: a pattern of emotionally abusive intimidation, coercion and control, often combined with physical violence.
  2. Violent resistance: generally in response to coercive and controlling violence, and committed to protect oneself or another person.
  3. Situational (or common) couple violence: generally due to an inability to manage conflict or anger in a particular situation, this violence is not necessarily associated with a general desire to control a partner.
  4. Separation-instigated violence: ranging from minor to severe, this generally occurs around the time of separation and involves a small number of incidents.

Real-life situations of family violence rarely will fall exclusively into one category of this or other typologies of family violence. It is important to look at the severity of the violence in each case.

However, while all violence is of concern, generally the most serious type of violence in family law is coercive and controlling violence. This is because it is part of an ongoing pattern, tends to be more dangerous and is more likely to affect parenting.

When

March 1, 2021.