e-4517 (Justice)

The Government of Canada is committed to making the family justice system as fair as possible for all, including for victims of family violence. Promoting the best interests of the child and addressing family violence are two of the key objectives of amendments to the Divorce Act in former Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Actand to make consequential amendments to another Act, most of which came into force on March 1, 2021.

The amended Divorce Act contains a broad evidence-based definition of family violence which recognizes its many forms and the significant harm it can cause to both victims and witnesses. The definition also includes a child’s direct or indirect exposure to family violence and clarifies that behaviour does not have to be a criminal offence to be considered family violence under the Divorce Act.

The amended Divorce Act requires the court to consider the impact of any family violence on the best interests of the child when determining parenting arrangements. This includes the impact on the ability and willingness of any person who engaged in the family violence to care for the child, and the appropriateness of making an order requiring parents to cooperate on issues affecting the child. The amended Act sets out a list of specific factors to help judges determine the impact of the family violence, such as the nature and seriousness of the violence and the harm or risk of harm caused by it. When considering the best interests of the child factors, the court is required to give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being.

Cases where children resist or refuse contact with a parent are often challenging and complex. There are many reasons why a child may reject a parent and resist or refuse to spend time with them. This rejection can be a consequence of experiences such as parental conflict before or after parents separate, family violence, or personality factors. However, when a child’s rejection of a parent seems to be without justification, and it appears that the other parent has encouraged the child to turn against the rejected parent, the child may be referred to as “alienated.”

The best interest of the child remains the sole legal test for decisions concerning parenting arrangements. In determining the best interests of the child in a case where there is an allegation that a child is resisting contact with a parent, the court will look at the circumstances of the case to determine whether the child is in fact resisting contact, and if so, why this is occurring. In cases where family violence is also alleged, the court will also consider the specific criteria related to family violence in determining the child’s best interests under the Divorce Act.

Education and training on family violence for those working in family law are extremely important.